A-7651675
Decided by Board, July 8, 1948
Ineligibility to citizenship — Claim of exemption by neutral alien (Uruguay) from military service here — Section 3 (a) of the Selective Training and Service Act of 1940, as amended — "Residing in the United States" — Ineligibility for suspension of deportation and preexamination.
A native and citizen of Uruguay was admitted here as a visitor in March 1944, and the visiting period was extended to December 1945. He registered in June 1944 under the Selective Training and Service Act of 1940, as amended, and in July 1944 applied for relief from military service as a national of a neutral country. On February 22, 1945, Uruguay became a cobelligerent. Later, he was reclassified, called, and found physically unfit. Under section 3 (a) of the Selective Training and Service Act of 1940, as amended, he is debarred from becoming a citizen of the United States. Under section 19 (c) of the act of February 5, 1917, as amended, he is not eligible for suspension of deportation. Under section 13 (c) of the Immigraton Act of 1924, he is not eligible for admission into the United States. (Cf. sec. 28 (c) of that act.) He is barred from the privilege of preexamination.
CHARGE:
Warrant: Act of 1924 — Remained longer — visitor.
BEFORE THE BOARD
Discussion: This case is before us on appeal from an order of the Acting Commissioner denying respondent's application for suspension of deportation and preexamination and authorizing his voluntary departure from the United States, without the entry of an order of deportation, within 60 days after notification of decision.
Respondent is a 33-year-old native and citizen of Uruguay. He last entered the United States on March 14, 1944. He was then admitted as a visitor for business for a period of 1 year. His stay in the United States as a visitor was thereafter extended until December 31, 1945.
On or about June 12, 1944, approximately 90 days after respondent's entry to the United States, he registered for selective service with his local board in New York City. Shortly after he registered he was advised that he had been classified 1 — A. On July 14, 1944, he executed DSS Form 301 in which he applied for relief from military service as a national of a neutral country. His claim of exemption was recognized and he was not required to report for induction.
In September 1944, while respondent had a recognized status as a visitor under the immigration laws, and subsequent to the time he applied for relief from military service, respondent was married to an American citizen. According to his testimony he then decided that he wanted to become a permanent resident of the United States. He further testified that he went to his local draft board and asked permission to withdraw his claim of exemption. He claims that his draft board informed him that the DSS Form 301 could not be withdrawn. The records of respondent's local draft board do not indicate that respondent did make a request for withdrawal of his claim for exemption. However, these same records do show that sometime in 1945 respondent was called up for induction and was given a physical examination. He was rejected as physically unfit for military service and was classified IV — F. In this connection we note that Uruguay became a cobelligerent on February 22, 1945. That probably was the reason why respondent was reclassified and called up for induction.
No question was raised as to respondent's deportability on the charge contained in the warrant of arrest. The only issue is whether respondent is eligible for preexamination and for suspension of deportation. Counsel for respondent claims that he is not now ineligible to citizenship because of the claim of exemption filed in July 1944. Counsel apparently makes two arguments to support this contention. In the first place he takes the position that respondent is not ineligible for citizenship under section 3 (a) of the Selective Training and Service Act of 1940 because he attempted to withdraw his claim of exemption and because he was subsequently reclassified, called up for induction, and rejected because of a physical disability. We dispose of this contention of counsel by citing the Attorney General's decision in Matter of J----, 4458054 (June 9, 1947). For the reasons given in that decision respondent must still be considered subject to the disabilities contained in section 3 (a) of the Selective Training and Service Act of 1940.
Counsel's second contention is that respondent was not "residing in the United States" within the meaning of the selective service laws when he filed his claim of exemption in July 1944. In support of this contention counsel cites Ex parte Ghosh, 58 F. Supp. 851 (S.D. Cal., 1944). The Ghosh case concerned a subject of British India who came to the United States in January 1940. At that time he was admitted for 2 years as a student to attend the University of Southern California. His stay in the United States as a student was thereafter extended for another 2-year period to permit him to complete his studies. Throughout the period Ghosh maintained the status of a student. In May 1942 he filed an application with his local draft board for a determination as to whether he was "residing in the United States" within the meaning of the Selective Training and Service Act. His local draft board, at that time and on two subsequent occasions, found that he was not residing in the United States and, accordingly, issued him certificates of nonresidence. He maintained the status of a nonresident alien under the Selective Service laws until March 1, 1944, when his local draft board canceled his certificate of nonresidence. Ghosh appealed that action to the National Director of Selective Service. On July 7, 1944, he was advised that his appeal had been dismissed. He was thereafter inducted into the United States Army. Ghosh petitioned for a writ of habeas corpus. The court granted the writ and discharged Ghosh from the Army.
The court's opinion was admittedly brief, informal, and without benefit of an extended analysis of the law or the various regulations. In it the court said that the finding of the Immigration and Naturalization Service that Ghosh was not a permanent resident of the United States, but was in fact here only temporarily to attend school, had to be given weight in determining whether or not he was "residing in the United States" within the meaning of the selective service laws. The court did not indicate the amount of weight to be given to the findings of the Immigration and Naturalization Service. Again, the court did not hold that the Immigration and Naturalization Service's determination as to the permanence of Ghosh's residence in the United States was controlling so far as the selective service laws were concerned. Nor did it hold, as we read the opinion, that all aliens living here illegally under the immigration and nationality laws were not "residing in the United States" within the meaning of the Selective Training and Service Act of 1940, as amended. The court appears to have been greatly influenced by the fact that there were no standards in the selective service regulations as to what constituted "residing in the United States." In addition, the court was greatly impressed by the fact that on three different occasions Ghosh's local draft board had found him to be a nonresident alien. On the facts of the case, it seemed clear that Ghosh was only temporarily in the United States.
We think this case is entirely different from the Ghosh case. Here, respondent did not dispute the finding of his local draft board that he was "residing in the United States." Respondent, again, made no effort to apply for a so-called alien's certificate of nonresidence. He failed to exhaust his administrative remedies before the selective service authorities. Presumably, respondent was content to accept the finding of his local draft board that he was a resident of the United States and that he was subject to the selective service laws. Furthermore, we do not know that the facts present in this record were the same as those considered by the local draft board when it found respondent subject to the selective service laws. It may well be that the local draft board had other facts before it at that time which justified its finding that the respondent was residing in the United States. We do not think that we should retry the issue of respondent's residence in this deportation proceeding at this time.
We, therefore, conclude that respondent was "residing in the United States" within the meaning of the selective service laws at the time he filed his claim of exemption in July 1944. He is ineligible to citizenship. Consequently, his deportation cannot be suspended and his preexamination cannot be authorized because he would be inadmissible to the United States under the provisions of section 13 (c) of the Immigration Act of 1924. The Acting Commissioner's action in granting him voluntary departure was the most favorable relief that could have been granted.
Order: The Acting Commissioner's order is affirmed and the appeal dismissed.