A-3203582
Decided by the Board June 23, 1953
Neutral alien — Ineligible to citizenship; claim of exemption from military service here by native of Palestine.
(1) Since under the Selective Training and Service Act of 1940, Palestine was regarded as a neutral country, persons who filed DSS Form 301 asserting the neutrality of Palestine and received exemption from military service as a result thereof are now in effect estopped from denying the neutrality of Palestine at the times of their respective applications.
(2) A native born citizen of Palestine who filed DSS Form 301 on June 16 1943 claiming exemption from United States military service under the provisions of section 3 (a) of the Selective Training and Service Act of 1940 is ineligible to citizenship.
(3) Matter of M, A-4443410 (1947) overruled and Petition of Ajlouny, 77 F. Supp. 327 (D.C. Mich., 1948) not followed.
BEFORE THE BOARD
Discussion: A---- D---- petitions for the issuance of an immigration visa to her husband, S---- H---- D----. Petitioner is a native-born United States citizen. She was married on January 27, 1944 to the beneficiary at New York.
S---- D---- was born in Palestine on December 15, 1913. He has entered the United States four times as a visitor, his last entry having been on June 6, 1939. At that time he was admitted as a temporary visitor under section 3 (2) of the 1924 Act. He was granted several extensions of stay until 1948 when his last application for an extension was denied. He was granted until March 10, 1948, to depart from the United States.
The beneficiary's application for preexamination was authorized by the Immigration and Naturalization Service on May 9, 1946. A petition by his wife for an immigration visa in his behalf was approved on June 14, 1946, granting him first preference status. After these steps had been taken it was discovered that the beneficiary had filed a Form DSS 301 (application by alien for relief from military service) on June 16, 1943, applying for relief from military service under section 3 (a) of the Selective Training and Service Act of 1940 (50 U.S.C.A. Appx.) on the ground that he was a native-born citizen of a neutral country. That statute grants any citizen of a neutral country the privilege of relief from service in the Armed Forces of the United States, but provides that in the event he avails himself of such exemption, he shall thereafter be debarred from becoming a citizen of the United States.
On February 18, 1947, the Immigration and Naturalization Service revoked its approval of the visa petition filed in the beneficiary's behalf and revoked its authorization for preexamination on the ground that the beneficiary, by his action in filing Form DSS 301, became a person ineligible to citizenship and hence a person inadmissible to the United States under section 13 (c) of the Immigration Act of 1924 and under section 19 (c) of the Immigration Act of 1917.
Sec. 13 (c), Immigration Act of 1924: No alien ineligible to citizenship shall be admitted to the United States unless * * * (exceptions not applicable here).
This Board on August 29, 1947 reversed the order of the Immigration and Naturalization Service, holding that petitioner was not a person ineligible to citizenship of the United States. On March 10, 1949, the Attorney General found that the beneficiary is ineligible to citizenship by reason of his filing the Form 301. On motion of the Acting Commissioner the Board of Immigration Appeals on February 6, 1951, granted the motion and revoked its prior order. Counsel's present request is that the Board reverse its order of February 6, 1951, resume its prior position, and grant approval of the visa petition and preexamination. The petitioner does not question that he was a person residing in the United States at the time he filed a DSS Form 301 on June 16, 1943. At a time when he was residing in the United States and was clearly liable for military service in the Armed Forces of the United States he executed and filed DSS Form 301, a form which carried the following stipulation: "I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States." As a person ineligible for citizenship, under the law at the present time he is ineligible for an immigration visa or for suspension of deportation.
The only question raised by this appeal is as to whether or not Palestine was a "neutral country" at the time the beneficiary filed his DSS Form 301. It is the contention of counsel that Palestine was not, in fact, a neutral country at that time, and that therefore petitioner's claim for exemption as an alien neutral was a nullity.
It has been the holding of this Board since Matter of J----, A-4558054, June 9, 1947 ( 2 IN Dec. 545), in which this Board was reversed by the Attorney General, and Matter of W----, A-5113737, October 14, 1947 ( 2 IN Dec. 899), that an alien residing in the United States is bound by the filing of a Form DSS 301, even though he later requests voluntary induction into the Armed Forces, and even though he claims he did not know at the time the consequences of the filing of such a form. We have considered ourselves bound by the Attorney General's decision in the J---- case with regard to all neutral countries. We held, briefly, that Palestine was an exception ( Matter of M----, A-4443410 (August 20, 1947), cited by counsel), that Palestine, governed by Great Britain under a mandate, was in fact a cobelligerent and not a neutral nation in 1942, that it had the same status as did the governing power, and that a claim for exemption from military service by a Palestinian was a nullity. Hence, he was not barred from naturalization. Shortly thereafter Petition of Ajlouny, 77 F. Supp. 327 (D.C. Mich., 1948), held similarly in almost the exact language we had used in the M---- case, saying since Palestine was not truly a neutral, petitioner's claim for exemption as a citizen of a neutral country was without legal effect. The court declared that since Palestine was not in fact a neutral country, the action of the Director of Selective Service in listing it as such did not make it so.
Reversed March 6, 1952, in accordance with Moser v. United States, 341 U.S. 41 (1951). W---- being a citizen of Switzerland, was not ineligible to citizenship under the holding in the Moser case. Because of a treaty between the United States and Switzerland covering military service of citizens of each of those countries, resident in the other, a special Form DSS Revised was made available to Swiss citizens.
On March 10, 1949, the Deputy Attorney General advised the Acting Legal Adviser of the Department of State that it was his opinion that the beneficiary, S---- D----, and one other similarly situated, are ineligible to citizenship and therefore, under section 13 (c) of the Immigration Act of 1924 may not obtain immigration visas. The Deputy Attorney General's advice continued as follows:
I arrive at this conclusion simply by applying to the situation the plain language of section 3 (a) of the Selective Training and Service Act of 1940. These aliens, as nationals of Palestine, asserted their Palestinian nationality and asserted the neutrality of Palestine in their applications to be relieved from liability for training and service under the Selective Training and Service Act of 1940. As the result of such assertions by the aliens, their applications for exemption from military service were granted and they were not called upon to, nor did they, render any military service to the United States. In these circumstances section 3 (a) clearly debars them from becoming citizens of the United States.
I have arrived at my opinion in this matter without considering the question raised by the aliens as to whether Palestine was a neutral at the times of their applications for exemptions from military service. The arm of the executive branch of the Government charged with administering the Selective Training and Service Act of 1940, namely, the Selective Service System, regarded Palestine as a neutral country for the purposes of that act. Whether that determination may be questioned by anyone outside the executive branch of the Government it is unnecessary to decide. It is clear to me that these aliens, having themselves asserted the neutrality of Palestine, having applied for privileges under the law of this country on the basis of such assertions, and having received the full benefit of such assertions, namely, exemption from military service, are now, at a time when all obligation to serve under the Selective Training and Service Act of 1940 is long since past, in effect estopped from denying the neutrality of Palestine at the times of their respective applications.
The letter refers to the J.---- case and also to Petition of Martinez, 73 F. Supp. 101 (W.D. Penn., 1947) and concludes that the present case is governed by the conclusion in those cases.
We believe that we are bound by the decision of the Deputy Attorney General in this case, rather than by the decision of the court in Petition of Ajlouny. In addition to following the Deputy Attorney General's view as a matter of precedent, we believe further that this is the better and more sound view than that taken by us in the M---- case.
Counsel quotes the United States Supreme Court as approving, "by implication at least," the holding in the Ajlouny case. Counsel declares that the Supreme Court cited the Ajlouny case in its decision in Moser v. United States, 341 U.S. 41 (1951). Counsel's quotation is not from the Supreme Court decision in the Moser case, but is from the Annotation which follows the Moser case on page 736 of 95 Lawyers Edition, wherein the Moser case is reported. The Supreme Court made no reference whatever in the Moser decision to the Ajlouny case. The Moser case has a very narrow application, the decision having gone off on the fact that the Treaty of 1850 with Switzerland provided special status for Swiss citizens residing in the United States and vice versa, such persons to be free from personal military service. Moser was a Swiss citizen and filed a "Form 301, Revised," a special form devised by the military service not inconsistent with the treaty rights of Swiss citizens. The Revised Form 301 omitted the waiver of the right to apply for American citizenship papers which was contained in Form 301. Apparently, this revised form was available only to Swiss citizens residing in the United States. The Moser case is not authority in the Palestinian cases.
Our present view is that a citizen of Palestine who filed DSS Form 301 is in a position no different from the citizens of admittedly neutral countries who filed that form. Petition of Dweck, 106 F. Supp. 169 (E.D.N.Y., 1950) (Syria); Navarro v. Landon, 108 F. Supp. 922 (S.D. Calif., 1952) (Ecuador); Matter of G----, A-2573279 (April 8, 1953) (Turkey); Matter of C---- B----, A-3886988 (June 2, 1952) (Spain); Matter of M----, A-1023343 (March 3, 1953) (Lebanon); Matter of K----, A-9623678 (November 4, 1949) (Finland); Matter of M----, A-5919880 (March 29, 1948) (Finland). Since the beneficiary is an alien ineligible to citizenship he cannot obtain the issuance of an immigration visa, and there is no other form of relief available to him under the law. The appeal must be dismissed.
Order: It is hereby ordered that the appeal be dismissed.