A-4197506, A-4257898.
Decided by Central Office April 11, 1947. Decided by Board June 20, 1947.
Ineligible to citizenship — Section 3 (a) of the Selective Training and Service Act of 1940 — Neutral alien's claim of exemption from United States military service. Inadmissibility — Sections 13 (c) and 28 (c) of the Immigration Act of 1924. Applicability of seventh proviso relief — Section 3 of the Immigration Act of 1917.
A neutral alien who became barred from becoming a citizen of the United States under the provisions of section 3 (a) of the Selective Training and Service Act of 1940 because he claimed exemption for relief from United States military service, was thus inadmissible as one ineligible to citizenship were he to seek entry for permanent residence thereafter (secs. 13 (c) and 28 (c) of the Immigration Act of 1924), and such ground of inadmissibility could not be waived under the provisions of the seventh proviso to section 3 of the Immigration Act of 1917, even if he were otherwise eligible.
FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:
(Husband) — Act of 1924 — Ineligible to citizenship.
(Wife) — Act of 1917 — Likely to become a public charge.
BEFORE THE CENTRAL OFFICE
(April 11, 1947)
Upon consideration of the entire record, the findings of fact and conclusions of law of the Board of Special Inquiry are hereby adopted, except that Finding of Fact No. 5 is amended to read:
(5) That you, K---- K---- K----, are not totally dependent upon your husband for support;
and Conclusion of Law No. 2 is amended to read:
(2) That you, K---- K---- K----, are not inadmissible to the United States under section 3 of the Immigration Act of February 5, 1917, as a person likely to become a public charge.Discussion: The applicants are husband and wife, ages 45 and 34, respectively. The male applicant is a native and citizen of Switzerland, and the female applicant is a native of India and subject of Great Britain. The purpose of these proceedings is to determine whether the applicants would be admissible to the United States upon their return from Canada in possession of immigration visas. The Board of Special Inquiry at New York on March 21, 1947, found that the applicants would be inadmissible on the above grounds. They appeal from this decision.
The male applicant signed DDS Form 301, Application for Relief from Military Service, with his local Selective Service Board in New York in 1943. This claim of exemption caused him to be debarred from becoming a citizen of the United States (sec. 3 (a) of the Selective Training and Service Act of 1940) and inadmissible to the United States as a person ineligible to citizenship (sec. 13 (c) and sec. 28 (c) of the Immigration Act of 1924).
There is no merit to the appellant's contention that the treaty with Switzerland of November 25, 1850, prevented his becoming ineligible to citizenship by reason of claim of military exemption. The Service has held that the Selective Training and Service Act of 1940, insofar as it required all aliens to submit to military service, is inconsistent with and repeals the provisions of the above treaty whereby Swiss nationals in the United States were exempted from military service (Deputy Commissioner, CF-92882 (May 20, 1944); Adjudications Office, File C-5360000 (Nov. 27, 1944)). The ground of inadmissibility preferred against the male applicant is sustained.
The female applicant was found inadmissible as a person likely to become a public charge. The record evidence does not sustain such ground. She has been employed during the past year earning on an average of $40 to $45 per week. She appears to be in good physical condition and able to continue such employment.
The male applicant contends that he would not have claimed exemption from military service if he had known that such claim would render him ineligible to citizenship. He presented a letter from the Swiss Legation advising him that he did not waive his right to become a citizen by filing DDS Form 301. It was pointed out that the above treaty exempted him from military service with the United States.
He has resided in the United States since September 1940 when he was admitted as a visitor. Thus, in September of the present year he will have the minimum residence requirement of the seventh proviso to section 3 of the 1917 Act. However, it is believed that even if the male applicant had the 7 years' residence he should not be extended the benefits of that proviso. Having refused to serve the United States during time of war he is certainly in no position to claim a privilege extended by this country in only meritorious cases. The fact that he would have served had he known the consequences of his act is immaterial, for this only indicates that he was concerned primarily with his own interests rather than those of the United States. Order: It is ordered that the finding of the Board of Special Inquiry that the male applicant is inadmissible as a person ineligible to citizenship be approved.
It is further ordered, That the finding of the Board of Special Inquiry that the female applicant is inadmissible as a person likely to become a public charge be not approved.
In accordance with 8 C.F.R. 90.3 the case is referred to the Board of Immigration Appeals for consideration.
Discussion: We agree with the Acting Commissioner's disposition of these cases. However, we do not agree with his statement that the Selective Training and Service Act of 1940 necessarily repealed the provisions of our treaty of November 25, 1850 with Switzerland. Again, we do not agree with the Acting Commissioner's statement that the seventh proviso of section 3 of the act of February 5, 1917 can be exercised with respect to a ground of inadmissibility arising under section 13 (c) of the Immigration Act of 1924.
Order: It is ordered that the finding of the Board of Special Inquiry that the male appellant is inadmissible as a person ineligible to citizenship be affirmed.
It is further ordered, That the appeal of the female appellant be sustained and that she be found admissible to the United States upon reapplying for admission in possession of appropriate documents.