A-8938363
Decided by Board August 29, 1957
Ineligible to citizenship — Exemption from military service on ground of alienage — Moser doctrine limited in its applicability.
Swiss citizen who was exempted from military service in 1954 by filing Form C-294, which contained text of section 315 of the Immigration and Nationality Act and which admittedly he had signed after it had been explained to him and he was made aware of the consequences, was not within the doctrine of the Moser case ( 341 U.S. 41), notwithstanding that request for his relief from military service was also made by Swiss Minister on basis of 1850 Treaty. Respondent's subsequent military service in the United States Armed Forces from March to September 1956 did not remove the disability (debarment from citizenship) attaching under section 315.
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable as an alien ineligible to citizenship.
BEFORE THE BOARD
Discussion: The case comes forward on appeal by the examining officer from the order of the special inquiry officer dated February 5, 1957, terminating the proceedings.
The record relates to a native and citizen of Switzerland, 24 years old, single, male, who last entered the United States at the port of New York on May 23, 1955, and was admitted for permanent residence. He had previously entered the United States for permanent residence at the port of New York on September 4, 1952.
The respondent testified that he was willing to serve in the Armed Forces of the United States. He stated, however, that shortly before claiming exemption from the draft, he had received a letter, as had all Swiss boys he knew, from the Minister of Switzerland telling him that he should ask for a IV-C classification and that the other Swiss boys had claimed exemption and he too signed the papers claiming exemption, but would have been willing to serve. He registered for Selective Service on December 16, 1953, and completed his Selective Service questionnaire on the same date. He testified that he was later sent a letter to report to the local board and that a Form C-294, application by alien for exemption from military service, was enclosed. This form contained section 315 of the Immigration and Nationality Act of 1952 which provides:
SEC. 315. (a) Notwithstanding the provisions of section 405 (b), any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.
(b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien.
The respondent testified that he did not read and understand this language at the time he signed the form because he could not speak English too well at that time but at the Draft Board it was explained to him that if he signed the IV-C application he would not be able to become an American citizen. He told them that he understood and he signed it afterward. The respondent's Selective Service record discloses that the Minister of Switzerland made a request for his exemption to the Secretary of State on the basis of the Treaty of Friendship and Commerce between the United States and Switzerland of November 25, 1850. This request was dated January 18, 1954, and on February 11, 1954, he was placed in IV-C classification by his Draft Board.
Subsequently, the respondent made a temporary visit to Mexico and while there learned that Swiss subjects who had signed similar requests for exemption from military service were being detained at the border and he, accordingly, made a surreptitious entry into the United States. He was apprehended on June 10, 1954, was granted voluntary departure and returned to Switzerland. There he made application for a second immigrant visa. He testified that he told one of the consular clerks about his claiming exemption from military service and that it was taken up with the consul who said that if he were willing to go in the service now it would be all right. The respondent was admitted to the United States on May 23, 1955, and on March 5, 1956, he entered the United States Army and was honorably discharged from military service on September 1, 1956, as "an alien without legal residence in the United States," the respondent having been made the subject of deportation proceedings by service of an order to show cause on August 17, 1956.
Upon these facts, the special inquiry officer has found that the case falls within the doctrine of Moser v. United States, 341 U.S. 41 (1951). The special inquiry officer finds that the respondent did not knowingly waive his rights to citizenship in this country in preerence to serving in the armed forces and that he placed justifiable reliance upon advice which he had reason to believe came from the Swiss legation and that he did not actually have an opportunity to make an intelligent election between military service and United States citizenship. Upon this basis, the special inquiry officer has ordered the proceedings terminated.
The examining officer, in appealing from this decision, argues that the Moser case is not applicable and cites several distinguishable features. In the Moser case, the claim for exemption, Form DSS 301, had deleted from it the express waiver of citizenship and there was specific advice from the Swiss legation that exemption could be obtained without necessity of forfeiting the right thereafter to become an American citizen if the request was based on Article II of the Treaty of Friendship, Commerce and Extradition between the United States and Switzerland of November 25, 1850. In contrast, it is pointed out that the claim for exemption which the respondent signed, Form C-294, contains the full printed text of section 315 of the Immigration and Nationality Act of 1952 and there was no allegation then that the respondent had been informed that a request for exemption would not act to exclude him from falling into the class debarred from citizenship. It is further argued that the claim for exemption herein took place after the effective date of the Immigration and Nationality Act of 1952 and that section 315 substantially replaced section 28 (c) of the Immigration Act of 1924 with the addition of the words "notwithstanding the provisions of any treaty relating to military service."
It is the administrative position that an alien who obtained exemption from military service on the ground of alienage is not ineligible to citizenship under section 315 nor 101 (a) (19) of the Immigration and Nationality Act if he thereafter served honorably in the Armed Forces of the United States between September 1, 1939, and December 31, 1946 (during World War II, thereby coming within the provisions of section 329 of the Immigration and Nationality Act), or became eligible for the benefits of the Act of June 30, 1953 (Public Law 86, 83d Cong., 1st Sess.), by active service in the Armed Forces of the United States between June 25, 1950, and July 1, 1955. The respondent who served in the United States Army between March 5, 1956, and September 1, 1956, is not eligible for naturalization on the basis of his military service.
Cf. In re Naturalization of Cuozzo, 235 F. (2d) 184 (C.A. 3, 1956), dictum that this administrative practice could not alter the explicit direction of section 315.
Court decisions do not appear to be uniform concerning whether the Moser decision has been superseded by section 315 of the Immigration and Nationality Act and whether it had retroactive effect. Upon the facts present in this case, we are convinced the Moser case is not in point. There the Supreme Court held that since our State Department had apparently acquiesced in the alien's claim of right to exemption without debarment from citizenship, it was not made clear to him that the claim of exemption would result in disqualification for citizenship; and there was a finding that if it had been made clear, he would not have claimed exemption. Here, however, the Selective Service form which the petitioner signed made the consequences of his action inescapably clear by the wording on the face of the form and the fact that the respondent signed this form after it had been explained to him and he had stated he understood the consequences thereof. The subsequent military service of the respondent from March 1956 to September 1956 does not relieve him from the consequences of his act, inasmuch as Congress has not seen fit to declare that by virtue of such service the respondent would thereby become eligible for naturalization. As a consequence of his application and exemption, the respondent is debarred from citizenship by section 315 of the Immigration and Nationality Act. The charge in the order to show cause is sustained.
Holding Moser superseded by section 315, Petition of Mauderli, 122 F. Supp. 241 (N.D. Fla., 1954); contra, Petition of Berini, 112 F. Supp. 837 (E.D.N.Y., 1953).
In re Fleischmann's Petition, 141 F. Supp. 292 (S.D.N.Y., 1956); Ballester v. United States, 220 F. (2d) 399 (C.C.A. 1, 1955).
Cf. In re Naturalization of Cuozzo, 235 F. (2d) 184 (C.A. 3, 1956).
Order: It is ordered that the appeal of the examining officer be sustained and that the alien be deported pursuant to law on the charge stated in the order to show cause.