A-1396530.
Decided by Board June 30, 1954.
Excludability — Section 212 (a) (22) of Immigration and Nationality Act — Departed from or remained outside United States to evade or avoid military service.
Where it is established that an alien lawfully admitted to the United States for permanent residence abandoned his domicile in the United States and departed to Mexico for the purpose of evading or avoiding military service in the Armed Forces of this country, he is excludable from the United States under section 212 (a) (22) of the Immigration and Nationality Act. Notwithstanding the fact that he is presently applying for admission as a nonimmigrant visitor, he remains inadmissible under section 212 (a) (22) since he was not within the nonimmigrant class of aliens at the time of his departure from the United States.
EXCLUDED:
Section 212 (a) (22) IN Act — Departed to escape military service.
Section 212 (a) (22) IN Act — Remained outside the United States to escape military service.
BEFORE THE BOARD
Discussion: This appeal is from a decision of a special inquiry officer at Calexico, Calif., on February 12, 1954, excluding the appellant on the grounds designated above. The appellant, a native and citizen of Mexico, seeks entry as a nonimmigrant visitor for business.
Counsel, admitting that the appellant was liable for military service at the time he departed from the United States on October 20, 1942, contends that his act in departing could not have been to evade or avoid military service because his eligibility for service had not been determined. The issue under consideration now is whether the first ground of exclusion is sustained.
The Service representative urges that this appellant, a resident alien immigrant at the time he departed to Mexico on October 20, 1942, is now inadmissible to the United States on the first ground of exclusion assigned above, notwithstanding the fact that he applied for admission as a nonimmigrant visitor. In other words, it is urged that the appellant does not come within the exemption provided for nonimmigrants in section 212 (a) (22) of the Immigration and Nationality Act of 1952.
Section 212 (a) (22), Immigration and Nationality Act, reads:
(a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
The special inquiry officer has summarized the evidence. However, the pertinent facts will be restated because the acts, conduct and investigations relating to the appellant cover a period of about ten years and the record is voluminous.
The appellant is a 40-year-old married male, native and citizen of Mexico, who was admitted for permanent residence on October 13, 1928. He attended school up to 1934 when he obtained employment, apparently with the Colorado River Land Co. in Mexicali, Mexico. He resided in the United States, used a resident border-crossing card and worked in Mexico for the same employer up to 1945 or 1946. His home was in Calexico with his mother and grandmother. He was single up to April 1942. On October 20, 1942, he departed to Mexico, abandoning his domicile in the United States on the same date. He obtained a nonresident alien's border-crossing identification card from the Service and surrendered his resident alien's border-crossing card. The card he obtained was revalidated on October 21, 1943, to expire on October 21, 1944. He used the card to enter the United States for temporary visits of a few hours each up to November 1, 1943, after which date he did not apply to enter this country until February 1953 when a request was received by the Service for a waiver of excludability under section 212 (d) (3) of the Immigration and Nationality Act. The request was denied after investigation. On or about August 28, 1953, he applied for a nonresident alien's border-crossing card at San Ysidro. After hearing before a special inquiry officer he was found admissible as a nonimmigrant on September 9, 1953, and a border-crossing card was issued. Thereafter, he sought to enter at Calexico, Calif., on November 14, 1953, at which time he was accorded a hearing and excluded on the grounds stated above. The instant appeal was taken from that decision.
The appellant's wife, a United States citizen to whom he was married in April 1942, accompanied him to Mexicali, Mexico, on October 20, 1942, he having obtained an apartment on the day preceding his departure. His mother and grandmother remained in the United States. He executed a form "Abandonment of Residence in the United States" on the day of departure.
The appellant registered for military service with the local draft board at El Centro, Calif., on October 10, 1940. He was then 27 years of age, single. He executed a questionnaire on June 16, 1941, and sent it to the local draft board. On the date he departed to Mexico (October 20, 1942) he wrote the Selective Service Board that he had abandoned his legal residence in the United States, effective that date. He returned papers he had received from the draft board and surrendered a permit that had been given to him to cross the border daily to his work in Mexico. He did not obtain a permit from the local draft board to leave the United States to reside in Mexico and did not inform the local draft board prior to departure of his intention to depart. On February 17, 1943, the local draft board sent him a delinquent notice and requested that he report for physical examination on February 25, 1943. He replied to the notice on February 18, 1943, stating that pursuant to Article IV of an agreement between the governments of Mexico and the United States he was no longer under the jurisdiction of the Selective Training and Service laws of the United States. The complete file in his case was then submitted to the National Director of Selective Service for review and opinion on September 23, 1943. That officer gave a decision to the effect that Article IV of the agreement between Mexico and the United States was inapplicable to persons of Mexican nationality who departed from the jurisdiction of the United States after May 16, 1942, at which time the liabilities of the Selective Service Act had attached to them. The appellant was notified of the decision on October 8, 1943, and was later ordered to report for physical examination and induction on October 28, 1943. He admits that he disobeyed that order. He alleges that he received the notice on November 1, 1943, and since he believed he was delinquent, he feared criminal prosecution should he return to the United States. He admits that he did not cross the border from Mexico to the United States from November 1, 1943, to on or about September 9, 1953, a period of more than 9 years.
The Selective Service records show the following concerning the appellant's classification:
October 16, 1940 — Registered with Local Board 159
June 20, 1941-IV-C (alien)
September 1, 1943 — Class I-A
June 16, 1942 — Reclassified Class III-A, (dependents)
August 14, 1944 — Reclassified Class IV-C
October 9, 1945 — Class IV-A, over age.
The minutes of the Selective Service Board where the appellant was registered show the following entries:
June 16, 1942-III-A, DSS Form 57 mailed June 18, 1942
September 1, 1943-I-A, DSS Form 57, sent on September 2, 1943
August 14, 1944-IV-C
August 17, 1944-DSS Form 57 mailed registrant
October 9, 1945-IV-A
October 11, 1945 — DSS Form 57 mailed registrant.
The appellant wrote the local draft board on November 18, 1944, requesting that he be informed concerning his status under the Selective Service Act. He was advised that should he reenter the United States he would be placed in the Armed Forces immediately as his delinquency had not been cancelled. He wrote again on October 30, 1945, concerning his status under the Selective Service Act. However, he did not enter the United States, but remained in Mexico, as previously stated, for a period of about 9 years.
The appellant denies that his departure to Mexico on October 20, 1942, was to evade or avoid American military service. He alleges that he moved across the border from Calexico to Mexicali for business and financial reasons; that the Government of Mexico wanted everyone of Mexican nationality to move to Mexico; and that his employer asked him to live in Mexico. He referred to one employer, Z---- W----, as a person who requested him to move to Mexico and obtain employment. A witness, Z---- W----, has testified that there were requests for persons employed in Mexico to move to that country but that no pressure was brought to bear by the Government of Mexico prior to 1949. This witness had asked this appellant to join his firm in Mexico, but it is noted that the appellant did not change employment until 1945 or 1946. Another witness, C---- C---- C----, a United States citizen, who was working with the appellant in October 1942, has testified that he discussed the matter of the appellant taking over the whole business for the reason that the witness expected to be drafted into the military service. Although this appellant had discussed with the witness the subject of an apartment in Mexicali, Mexico, he had never mentioned to his associate the matter that he expected to be drafted or to enter the military service. It is well known that Calexico, Calif., is in close proximity to Mexicali, Mexico. It is also well known that living conditions in the United States are better, or at least as good, as they are in Mexico. The appellant's wife is a native-born citizen.
It appears clear to us from the acts and conduct of the appellant and the circumstances surrounding his departure on October 20, 1942, as disclosed by the records of the Selective Service System, and by facts revealed by his own testimony that he had definitely made up his mind prior to October 20, 1942, that he, a Mexican national, could evade or avoid military service by leaving the jurisdiction of the United States. Evasion of military service was his chief objective. The fact that he did not inform the local draft board of his prearranged plan; or seek permission to leave; or ask advice from the Selective Service Board concerning his status in the event of departure; and the fact that after departure he immediately replied to demands from the local draft board requesting him to return by stating that he had changed residence and was not liable for military service as a Mexican resident, appear to exclude every other motive or purpose. He had the background of his associate who anticipated that he would be called for induction. The appellant believed that by crossing the Mexican border he would be beyond the reach of the Selective Service laws. He did not notify the Selective Service System that he had changed his residence until he was beyond their jurisdiction. Thus, he continued in gainful employment. We have carefully considered the reasons stated by the appellant for his departure to Mexico on October 20, 1942, and we find that those reasons are without merit and did not warrant the action taken. The conclusion is inescapable from the evidence of record, and in the absence of affirmative credible evidence to the contrary, that this appellant departed from the jurisdiction of the United States on October 20, 1942, for the sole purpose of evading or avoiding military service in the Armed Forces of the United States.
Concerning the contention of counsel that although the appellant was liable for American military service at the time he departed from the United States on October 20, 1942, he does not come within the terms of the excluding provisions of the statute because his eligibility had not been determined (through physical and mental examination, etc.) and because induction was not imminent, we find that this contention must be rejected. The parallel provision of law concerning persons who departed from the jurisdiction of the United States to escape military service, and which was in effect prior to the effective date of current law (section 212 (a) (22), Immigration and Nationality Act) is section 3 of the Immigration Act of February 5, 1917, as amended on September 27, 1944. In a decision involving a factual situation under that provision of law, it was held that the statute embraced a person who left the United States when induction into the military service was an imminent possibility. We also find that the administrative decisions referred to by counsel are not controlling in the instant case. Although the facts may appear similar, each case is distinguishable.
Section 3:
That the following classes of aliens shall be excluded from admission into the United States: * * *
persons 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 a period declared by the President to be a period of national emergency (P.L. 431, approved Sept. 27, 1944; * * * repealed, sec. 403 (a) (13) IN Act, effective Dec. 24, 1952).
Matter of V---- D----, 56196/783, 2 IN Dec. 417, 423 (Atty. Gen., April 4, 1946). In this case, it was held that an alien who departed from the jurisdiction of the United States 5 days before reaching the age of 18 years at which time he would be required to register, left when induction in the military service of the United States was an imminent possibility.
As stated above, this appellant admits disobedience in February 1943 to demands from the local draft board that he report for physical examination and induction. He alleges that he was afraid to enter the United States thinking that because he was delinquent on the records of the Selective Service that he would be criminally prosecuted. Predicated on the admissions made by the appellant that he remained outside the United States and disobeyed orders and demands of the local draft board, we conclude that he is a person who remained outside the jurisdiction of the United States to avoid or evade military service. It follows that both grounds of exclusion as found by the special inquiry officer are sustained.
We next consider whether this appellant was a nonimmigrant at the time he departed from the United States on October 20, 1942, within the provisions of section 212 (a) (22) of the Immigration and Nationality Act which provides that, "Persons who have departed from or who have remained outside the United States to avoid or evade training or service in the Armed Forces in time of war or a period declared by the President to be a national emergency" shall be ineligible to receive visas and shall be excluded from admission into the United States, "except aliens who were at the time of such departure nonimmigrant aliens and who seek to reenter the United States as nonimmigrants."
Section 101 (a) of the Immigration and Nationality Act of 1952 (subdivision 15) defines the term "immigrant" to mean every alien except an alien who is within one of the classes of nonimmigrant aliens enumerated under that subdivision. An examination of those classes of aliens fails to reveal a class who are permanent residents of the United States. Subdivision 20 of section 101 (a) of the Immigration and Nationality Act defines the term "lawfully admitted for permanent residence" as meaning the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. It cannot be disputed that this appellant was a lawfully admitted alien who was residing permanently in the United States on October 20, 1942. Residence is the place of general abode. Up to and including October 20, 1942, this appellant had no residence abroad. Interpreting the statutory language wherein the term "immigrant" is used in section 212 (a) (22) of the Immigration and Nationality Act, we must conclude that this appellant was not within the nonimmigrant classes of aliens at the time he departed from the United States on October 20, 1942.
Congress in enacting current law recognized the distinction between immigrants and nonimmigrants who departed from the jurisdiction of the United States to evade or avoid military service, and limited the exemption from grounds of exclusion arising therefrom, to those who were nonimmigrants at the time of departure. It must follow that the appellant was an immigrant on October 20, 1942, and is not within the exception accorded to nonimmigrants, within the provisions of section 212 (a) (22) of the Immigration and Nationality Act. Predicated on our finding that this appellant does not come within the exception granted to aliens who apply for admission as nonimmigrants; and since the appellant has not applied for discretionary relief under section 212 (d) (3) of the Immigration and Nationality Act, the appeal will be dismissed.
See S. Report No. 1515, 81st Cong., 2d sess., pp. 412 and 413, concerning modifications, additions and deletions from prior laws in which it was stated "those recommendations on the excludable classes, in general, will include aliens who are * * * (10) draft evaders and avoiders." See also S. Report No. 1137, 82d Cong., 2d sess., p. 13, and H. Report No. 1365, 82d Cong., 2d sess., p. 52.
Order: It is ordered that the appeal in this case be and the same is hereby dismissed.