A-3935221.
Decided by Board June 22, 1954.
Ineligible to citizenship — Sections 101 (a)(19) and 315 (a) of the Immigration and Nationality Act — Excludability under section 212 (a) (22) of that act — Not established where liability for service did not exist.
An alien who filed an application for exemption from military service and who was subsequently issued a Certificate of Nonresidence by his local draft board is not ineligible to citizenship under section 101 (a) (19) of the Immigration and Nationality Act as an alien permanently debarred from becoming a citizen of the United States under section 3 (a) of the Selective Training and Service Act of 1940, as amended. Since he was declared to be a "nonresident alien" by the agency charged with that responsibility, he was not liable for service and his act in applying for relief from a nonexistent duty did not create a bar against citizenship. He is also not ineligible to citizenship under section 315 (a) of the act since that section requires both an application for exemption on the ground of alienage and a showing that the applicant was relieved from service on such ground. Such an alien, therefore, is not excludable under section 212 (a) (22) of the act.
EXCLUDABLE:
Immigration and Nationality Act — Section 212 (a) (22).
BEFORE THE BOARD
Discussion: This case presents an appeal from an order entered by the special inquiry officer, April 27, 1954, excluding the appellant under section 212 (a) (22) of the Immigration and Nationality Act of 1952, as an alien ineligible to citizenship under section 101 (a) (19) of the same act and who seeks to reenter for permanent residence. Exceptions have been taken to the finding that the appellant is ineligible to citizenship.
The appellant, a native and citizen of Spain, male, married, 40 years of age, last arrived in the United States at the port of New York on April 4, 1954, ex National Airlines, and applied for admission as a returning resident alien in possession of a permit to reenter valid to September 21, 1954. The appellant entered for permanent residence under section 4 (b) of the Immigration Act of 1924 on February 13, 1948. His section 4 (b) visa was issued on the basis of his original admission for permanent residence on November 2, 1942.
It is established that the appellant registered under the Selective Training and Service Act of 1940 on October 16, 1940, at Local Board No. 2, Winter Park, Fla. Prior to his entry for permanent residence during November of 1942, the appellant executed and filed DSS Form 301 with his local board on August 22, 1942. Exhibit 3 is an alien's Certificate of Nonresidence (DSS Form 303) issued appellant on October 9, 1942, by his local board at Winter Park, Fla. The Certificate of Nonresidence (DSS Form 303) issued the appellant has never been revoked or rescinded. There is a showing that the appellant when issued the Certificate of Nonresidence was required to surrender his Selective Service registration certificate. There is also a showing that after appellant adjusted his immigration status to that of a permanent resident alien he received from his draft board a new classification consistent with his becoming a permanent resident.
The special inquiry officer finds that appellant comes within the scope of section 101 (a) (19) of the 1952 act in that he is ineligible to citizenship, being an individual who is permanently debarred from becoming a citizen of the United States under section 3 (a) of the Selective Training and Service Act of 1940, as amended. That portion of section 101 (a) (19), ( supra), pertinent here reads as follows:
Section 3 (a) of the Selective Training and Service Act of 1940 provides in substance that every male citizen of the United States, and every other male person residing in the United States shall be liable for training and service in the land or naval forces: Provided, That a neutral alien could be relieved from liability for training and service if prior to his induction he made application to be relieved from such liability in the manner prescribed by applicable regulations.
The term "ineligible to citizenship," when used in reference to any individual, means, notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States under section 3 (a) of the Selective Training and Service Act of 1940, as amended * * * or under any section of this Act * * *.
Accordingly, we must interpret the facts of the case to determine whether the appellant comes within the provisions of the aforementioned section of the Selective Training and Service Act as well as section 315 (a) of the Immigration and Nationality Act of 1952.
Section 3 (a) of the Selective Training and Service Act creates a bar to citizenship only when an alien resident liable for service asks to be relieved ( McGrath v. Kristensen, 340 U.S. 162, 172 (1950)). Section 10 of the Selective Training and Service Act, ( supra), provides in substance that all rulings by the local draft board are to be final and the right of appeal strictly limited. The courts have strictly adhered to the policy of refusing to substitute their judgment for that of the draft board unless there was no possible basis for its decision ( Eagles v. Samuels, 329 U.S. 304, 311-312 (1946); United States v. Stalter, 61 F. Supp. 732, 734 (D.C., N.D. Ind., 1945)).
This Board has pursued the same policy following the Attorney General's ruling in a case concerned with the question of whether Palestine was in fact a neutral country at the time of the filing of an application for exemption from military service ( Matter of D----, A-3203582, 5 IN Dec. 301). It appears that the Director of Selective Service was in error when he originally listed Palestine as a neutral country, an error which was subsequently corrected. The alien concerned urged that DSS Form 301, executed when Palestine was listed as a neutral, was a nullity since Palestine was in fact a cobelligerent.
The Attorney General in arriving at his conclusion that we could not substitute our judgment for that of the official primarily charged with administration of the Selective Training and Service Act said:
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.
Under the circumstances, if we were bound by the determination of the Director of Selective Service in the Palestinian case, ( supra), we are now bound by the finding of appellant's draft board that he was not a "male person residing in the United States" and, therefore, not liable for service under section 3 (a) of the Selective Training and Service Act of 1940.
Section 101 (a) (19) by its terms also requires us to determine whether the appellant is ineligible to citizenship under section 315 (a) of the Immigration and Nationality Act of 1952. Section 315 (a) provides:
Notwithstanding the provisions of section 405 (b) [not pertinent here], 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.
Paragraph (b) of the same section reads:
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.
Examining the facts of the case in light of the foregoing provisions of law and the interpretations thereof, we conclude that the appellant does not come within the scope of section 101 (a) (19) of the 1952 act as one permanently debarred from becoming a citizen under section 3 (a) of the Selective Training and Service Act of 1940, as amended. We cannot substitute our judgment for that of the draft board and find contrary to their determination that the appellant was a resident alien during the period in question. Since appellant was declared to be a "nonresident alien" by the agency charged with that responsibility, he was not liable for service and his act in applying for relief from a nonexistent duty did not create the bar against citizenship under section 3 (a) of the Selective Training and Service Act ( McGrath v. Kristensen, supra, at page 172).
Appellant is not ineligible for citizenship under section 315 (a) of the Immigration and Nationality Act of 1952. This provision of the 1952 act is in the conjunctive and requires both an application for exemption on the ground of alienage and a showing that the appellant was relieved from service on such ground. Paragraph (b) of the same section (315) makes the records of Selective Service conclusive evidence as to whether an alien was relieved from service by reason of alienage. The records of the appellant's local board at Winter Park, Fla., show conclusively that he was relieved from training and service on the strength of the issuance of DSS Form 303 (Alien's Certificate of Non-residence) and the subsequent cancellation of his registration.
The appellant on the occasion of his arrival, April 4, 1954, presented a reentry permit valid to September 21, 1954. Since he is not inadmissible under section 212 (a) (22) of the Immigration and Nationality Act, we will sustain the appeal and authorize his admission as a returning resident alien.
Order: It is ordered that the appeal be and the same is hereby sustained; the alien's admission is hereby authorized as a returning resident alien in possession of a valid reentry permit.