T-2705097
Decided by the Board February 3, 1954
Expatriation — Section 349 (a) (3) of the Immigration and Nationality Act — Permission of local draft board to enlist in foreign armed forces not effective.
Expatriation by a national of the United States results by virtue of his service in 1953 in the Canadian Air Force, even though he had permission of his local draft board to depart from the United States for the purpose of enlisting in the Armed Forces of Canada. Authorization by the local draft board does not amount to consent by the Secretary of State or the Secretary of Defense to enter or serve in the armed forces of a foreign state.
EXCLUDABLE:
Section 212 (a) (20), Immigration and Nationality Act — No immigrant visa.
BEFORE THE BOARD
Discussion: This case has been certified for decision pursuant to 8 C.F.R. 6.1 (c). The above-captioned applicant applied for admission at the port of Calais, Maine, and after hearing by a special inquiry officer was found to be inadmissible under section 212 (a) (20) of the Immigration and Nationality Act.
The record relates to a native of the United States born March 1, 1934, of Canadian parents. He served in the Armed Forces of the United States for approximately 6 months and was honorably discharged on August 22, 1951. With permission of his local draft board he joined the Canadian Air Force on January 3, 1953, and served therein until February 20, 1953, when he was honorably discharged.
The only issue presented is whether the applicant has expatriated himself under the provisions of section 349 (a) (3) of the Immigration and Nationality Act by entering and serving in the armed forces of Canada. There is a showing that the applicant had the permission of his local draft board to depart from the United States for the purpose of enlisting in the armed forces of Canada as he could not reenlist in the Armed Forces of the United States. Expatriation under section 349 ( supra) is avoided only when there is specific authorization by the Secretary of State and the Secretary of Defense to enter or serve in the armed forces of a foreign state. Authorization by a local draft board does not amount to consent of the sovereign in accordance with the terms of the statute. See Tomoya Kawakita v. United States, 190 F. (2d) 506 (C.A. 9, 1951), aff'd, 343 U.S. 717 (1952).
Order: The order entered by the special inquiry officer on July 24, 1953, is hereby affirmed.