A-5192153
Decided by Board July 30, 1948
Army "deserter" (alien) in wartime — Deportability of an alien for having departed to escape military service — Section 3 and section 19, of the Immigration Act of 1917, as amended.
An alien, who resided here since 1923, was inducted into the United States Army in 1943, and who went to Mexico thereafter in 1943 where he remained until he reentered in December 1946 (without inspection), and who had departed from the United States in 1943 to evade training in the Armed Forces of the United States while this country was at war or during a period of emergency, was subject to deportation under section 3 and section 19 of the Immigration Act of 1917, as amended. (See 2 IN Dec. 276. Contra-language in Matter of S----, unreported, A-6019743, Oct. 18, 1945, expressly overruled.)
CHARGES:
Warrant: Act of 1917 — Entry without inspection.
Lodged: Act of 1924 — No visa.
Act of 1917 — At time of entry a person who had previously departed from the jurisdiction of the United States to evade or avoid training and service in the Armed Forces of the United States. (Act of 1917, as amended.)
BEFORE THE BOARD
Discussion: The appeal in this case is from the order of the Service dated March 4, 1948, denying appellant's petition for suspension of deportation. The Service concluded that the appellant was not deportable on the ground that at the time of entry he was a person who had previously departed from the jurisdiction of the United States to evade or avoid training or service in the Armed Forces of the United States. The order of deportation is predicated on the two remaining grounds, namely, the Immigration Act of 1917, in that appellant entered without inspection, and the Immigration Act of 1924, in that at the time of entry he was not in possession of an unexpired immigration visa.
We agree with the action of the Service in denying the petition for suspension of deportation. However, it is our conclusion that appellant is also deportable on the third charge, which the Service found not to be sustained.
The evidence establishes that appellant is a native and citizen of Mexico, 30 years of age, and that he last entered the United States without inspection December 3, 1946, near San Luis, Ariz. On that occasion it was his intention to remain here permanently. Appellant was admitted to the United States for permanent residence in July 1923 and maintained domicile here until his departure to Mexico on October 16, 1943. Appellant was inducted into the United States Army on February 27, 1943, in Yuma, Ariz. He was given a 15-day furlough beginning October 1, 1943, and on October 16, 1943, after the expiration of his furlough, he went to Mexico and remained. This is his first return to this country since that departure. He stated that the purpose of his departure was to evade military service in the Armed Forces of the United States and join his paramour. He stated that his paramour left him about a month and one-half after he went to Mexico and then he continued to remain there until the present time. The alien stated that he returned to the United States on March 3, 1946, for the purpose of surrendering to military authorities. He further stated that he was dishonorably discharged on February 21, 1947, but disclaimed that he was court-martialed prior to said discharge. Appellant resides with his wife, a native of Mexico, whom he married in this country on April 15, 1942, and their two minor children, one of whom was born in Mexico and the other in this country.
The Service in holding that the charge that the alien at the time of entry was a person who had previously departed from the jurisdiction of the United States to evade or avoid training in the Armed Forces of the United States is not sustained, cited Matter of C----, 56175/45 (Feb. 13, 1945, 2 IN Dec. 276). The Service pointed to the fact that in that case it was held that the provisions of section 401 (j) of the Nationality Act of 1940 were aimed at the "`draft dodger' who departed from or remained out of the United States to evade or avoid training or service in the Armed Forces of the United States and that the provisions of the 1944 act (act of Sept. 27, 1944) are not applicable to members of the Armed Forces of the United States attempting to reenter the United States after having absented themselves without leave." The Service referred to a statement in the C---- decision to the effect that Congress had elsewhere legislated against deserters from the Armed Forces of the United States, i.e., sections 401 (g) and 306 of the Nationality Act of 1940. The Service concluded that inasmuch as the appellant was a member of the Armed Forces of the United States at the time of his departure from the United States on October 16, 1943, the determination was justified that the provisions of the act of September 27, 1944, are not applicable to him.
The determination in the C---- case does not stand for the proposition enunciated by the Service in the instant case. C---- was a citizen of the United States by birth and was inducted into the Armed Forces of this country on June 4, 1943. In August of that year he claimed to have received an emergency 7-day furlough to visit his allegedly sick mother in Mexico. He remained in Mexico beyond the period of his furlough because of the continuing illness of his mother, as he claimed. He did not attempt to return to the United States until more than 17 months after his departure. The Board of Special Inquiry concluded that he had become expatriated by virtue of the provisions of section 401 (j), Nationality Act of 1940, as amended. In sustaining the appeal, we held that section did not apply to C----.
The difference is that C---- was a citizen of the United States and section 401 (j) of the Nationality Act of 1940, as amended, was aimed solely at the expatriation of citizens of the United States who transgressed its provisions. The present appellant never having been a citizen, the provisions of that section obviously have no application to him. For the same reason, section 401 (g) of said act, which also deals with the loss of United States citizenship because of desertion from the military forces, provided conviction by court-martial takes place and provided such action is followed by dismissal or dishonorable discharge from the armed forces, has no application to appellant.
This section was added by the Act of September 27, 1944.
The provision which is applicable to appellant is that found in sections 3 and 19, Immigration Act of 1917 (as amended), which covers aliens who have departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces of the United States during time of war or during the period declared by the President to be a period of national emergency.
Nor, in our judgment, does section 306, of the Nationality Act of 1940, aid this alien-appellant. That section, which relates to the ineligibility to naturalization of deserters from the armed forces of the United States, reads:
A person who, at any time during which the United States has been or shall be at war, deserted or shall desert the military or naval forces of the United States, or who, having duly enrolled, departed, or shall depart from the jurisdiction of the district in which enrolled, or went or shall go beyond the limits of the United States, with intent to avoid any draft into the military or naval service, lawfully ordered, shall, upon conviction thereof by a court martial, be ineligible to become a citizen of the United States; and such deserters shall be forever incapable of holding any office of trust or of profit under the United States, or of exercising any rights of citizens thereof.
As we pointed out, section 401 (g) of the Nationality Act is confined to disabilities imposed upon citizens who transgress its provisions, while section 306 of the same act imposes disabilities upon aliens. Both sections refer to deserters and draft dodgers. It would not be consonant with the purpose which Congress had in mind to argue that by parity of reasoning the legislature did not intend to penalize the alien soldier who left the country to "evade or avoid training or service" merely because section 401 (j), supra, does not reach the citizen already a member of the Armed Forces. What Congress plainly intended by section 401 (j) was to first unclothe the citizen draft evader of his status, thus placing him in the category of an alien, and by such action bring him within the pertinent provision of section 3, act of 1917, as amended, governing the admissibility of aliens. To hold that the alien soldier in a proper case is not comprehended within the terms of said section 3 would be to place him in a more advantageous position than the citizen. Certainly the purpose of the legislature was not to permit the alien soldier, as the appellant, to remain in status quo, that is, to create a group shorn of any legal status under the immigration laws, but nevertheless not amenable to exclusion or deportation. This view would clearly defeat the basic aim which Congress sought to create ( Matter of C----, supra).
It is too plain that what Congress did by amending section 3, Immigration Act of 1917, was to add a new class of aliens subject to exclusion from the United States (or subject to deportation after entry through the first clause of section 19 of said act, which ties in with the inadmissible classes of said section 3). The wording relative to this additional class made no distinction between the alien who departed from the United States to evade the draft or the alien, already in the Armed Forces, who, to use the exact words of the statute, "departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the Armed Forces of the United States during time of war or during the period declared by the President to be a period of national emergency." And there is no question that Congress possesses the plenary power to provide for such action in the case of aliens ( Fong Yue Ting v. U.S., 149 U.S. 698 (1893); U.S. ex rel. Turner v. Williams, 194 U.S. 279 (1904); U.S. ex rel. Trinler v. Carusi, 72 F. Supp. 193 (1947)).
In Matter of S----, A-6019743 (Oct. 18, 1945), we stated that the alien soldier who departed from the United States to evade or avoid training or service in the Armed Forces would not be subject to the provisions of section 3, Immigration Act of 1917, and in support thereof cited Matter of C----, 56175/45 (Feb. 23, 1945). We, of course, have concluded in the present appeal that the C---- case did not intend or mean to justify such a broad interpretation. Accordingly, we overrule the language in Matter of S---- which is inconsistent with the position we enunciate herein.
S----, however, was deported on other grounds.
The findings of fact and conclusions of law of the Presiding Inspector are hereby adopted. Order: It is ordered that the appeal be dismissed.
It is further ordered that the alien be deported to Mexico at Government expense on the charge contained in the warrant of arrest and on the following additional charges:
The Immigration Act of May 26, 1924, in that, at the time of his entry, he was an immigrant not in possession of a valid immigration visa, and not exempted from the presentation thereof by said act or regulations made thereunder;
The Immigration Act of 1917 (as amended), in that, at the time of his entry he was one who had previously departed from the jurisdiction of the United States to evade or avoid training and service in the Armed Forces of the United States.