A-7841784, 5
Decided by Board February 16, 1951 Motion by Central Office March 16, 1951 Decided by Board April 20, 1951 Decided by Acting Attorney General July 28, 1951
Racial eligibility for naturalization — Section 303 of the Nationality Act of 1940, as amended — Test of eligibility as a white person. Kalmuks of southeastern European Russia are members of the white or so-called European race, in spite of their Asiatic origin. (See 4, I.N. Dec. 104.) EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Racically ineligible to naturalization in the United States (husband and wife).
Act of 1917 — Physically defective (husband).
Act of 1948 — Not an eligible displaced person (wife).
BEFORE THE BOARD
(February 16, 1951)
Discussion: This case is before us on appeal from a decision of the Assistant Commissioner dated November 2, 1950, directing that the excluding decision of the board of special inquiry be affirmed. It was determined at that time that appellants, whose blood was found to be predominantly that of the Kalmuk race were ineligible to naturalization, because Kalmuks are not members of the white race (sec. 303, Nationality Act of 1940; sec. 3, act of 1917; secs. 13 (e) and 28 (c), act of 1924).
Also called Kalmucks, Ralmyks, or Calmucks.
Appellant D---- R----, a 58-year-old native of Russia, now stateless, was born in St. Potavoskaja, about 200 kilometers east of Rostov on the Don River. Appellant S---- R----, a 57-year-old native of Russia, also stateless, was born at St. Vlasovskaja in the Rostov-Don River area.
St. Potavoskaja and St. Vlasovskaja are situated within the administrative subdivision of Rostov, of which Rostov-on-the-Don is the administrative center. St. Potavoskaja (47°19'' N., 43°18'' E.) and St Vlasovskaja (47°13'' N., 42°20'' E.) are about midway between Rostov and the Sea of Azov on the west and Astrakhan and the Caspian Sea on the east, in that area of eastern European Russia which lies north of the Caucasus Mountains.
The applicant's racial composition, by its present-day evaluation, must be that of a "white person" in order to warrant naturalization, according to the court.
Appellants fled from Russia about 1920, after resisting the communist revolutionary forces; appellant D---- R---- had served in the cavalry forces of the Tsar. Appellant D---- R----'s first wife and two children died of starvation in Russia in 1922, while appellant S---- R----'s first husband was shot by the revolutionaries in 1918. Appellants were married in Sofia, Bulgaria, in 1922, according to the Buddhist rite, which is their religion. Thereafter, they lived in Belgrade, Yugoslavia, where appellant D---- R---- was employed as a teacher and also had a shop from 1936 to 1943. In April 1943, they were brought to Lentzing, Germany, to work in a paper factory until May 1945. From 1945 to 1948 appellant D---- R---- served as a tutor in the Schleissheim displaced persons' camp, near Munich, but has been unemployed since that time.
Appellants were issued Soviet quota immigration visas under section 6 (b) of Public Law 774 (80th Cong., act of June 25, 1948) by the American consulate at Munich on April 27, 1950. Appellants' sponsor in Louisville, Ky., has given assurance that appellant D---- R---- will be employed as a tutor of foreign languages.
The Assistant Commissioner concluded, after consulting such sources as the Dictionary of Races and Peoples, the Encyclopedia Brittanica, and our recent decision in Matter of S----, A-7377747 (July 12, 1950), Int. Dec. No. 282, that, as Kalmuks, appellants were ineligible to naturalization, for the Kalmuks are not white people. The other grounds for exclusion, enumerated above, were also sustained.
It is well to note that this work was published in 1911 as S. Doc. 662, 61st Cong., 3d sess., and the status of Russian ethnic groups has been in a state of dux during the past few years.
Counsel contends that appellants have a predominance of white blood, but, in the event appellants are found to be mainly of a Kalmuk racial strain, that appellants are not thereby rendered ineligible to citizenship. Counsel avers that the Kalmuk ethnic group has been identified with European people by several generations of affinity, education, cultural activity, and 33 years of Soviet rule in Russia and is, therefore, a member of the white race.
According to the record, appellant, D---- R----, may be less than one-half Kalmuk and eligible for naturalization under section 303 of the Nationality Act of 1940, but actual documentary proof of racial background is not readily available.
The Assistant Commissioner found that appellant, D---- R----, was 75 percent Kalmuk and 25 percent white; we feel that the record shows that appellant is one-half Russian (both grandmothers were Russian) and less than one-half Kalmuk (his paternal grandfather had a trace of Armenian blood).
Hence, since a finding of racial eligibility of members of the Kalmuk race for naturalization is absolutely essential to the admission of appellant S---- R---- and is reasonably material in appellant D---- R----'s case, we will now consider this question.
Since both S---- R----'s grandmothers were Russian and her grandfathers were Kalmuk, we agree with the Assistant Commissioner that he is apparently 50 percent Kalmuk and 50 percent Russian.
During the opening years of the 17th century, a small group of Kalmuks migrated from their original habitat in central Asia to southeastern European Russia. They ultimately settled in that portion of Russia which lies between the mouth of the Don River and the mouth of the Volga River. About the middle of the 17th century, this group of Kalmuks took an oath of allegiance to the Tsar, submitted to Russian rule, and thereafter served as the official protectors of the southeastern borders of European Russia from infringement by warring tribes. (See appendix.) Although the Kalmuks were considered to be a seminomadic in their habits prior to the 1917 revolution, they have settled on land and carried on their occupation of herding on collective farms under the Soviet rule. They have also been taught how to speak and read the Russian language. Fate of Minorities under Soviet Rule, Department of State, Soviet Affairs Notes, No. 91, December 28, 1949.
The original homeland of the Kalmuks was in the area of central Asia bounded by the Great Altai Mountains on the north, the Gobi Desert on the east, the Tien Shan Mountains on the south, and Lake Balkash on the west. From this area, the Kalmuk tribes migrated east and south into China; north and west into the adjoining steppe regions of Asiatic Russia. A small portion of this latter group continued west into the European continent; this branch of the Kalmuk race is our chief concern in the present case.
The Don River flows into the Sea of Azov, and ultimately into the Black Sea, near Rostov-on-the-Don in the U.S.S.R. oblast (province) of Rostov, while the Volga River meets the Caspian Sea in the vicinity of Astrakhan in the Astrakhan oblast. The area in which the Kalmuks were known to reside, prior to World War II, lay slightly east of Rostov-on-the-Don, in the area roughly bounded by Stalingrad, Stravropol (in Kabardinskaya oblast), and Astrakhan. (CIA map 10443, 1948; CIA map 11162.12, 1949). For many years, the traditional Kalmuk center in this region was the city of Elista in the Astrakhan oblast.
Appellants, in the present case, testified that their families had been landowners prior to the revolution; that they spoke Russian, while they knew very little of the Kalmuk language. Thus, it would seem that the Kalmuks, after residing in European Russia for 300 years, have become partially integrated with the other ethnic groups of Russia.
In Matter of S---- ( supra), we held that the Tartars of European Russia (closely related geographically, ethnically and historically to the Kalmuks, — see appendix) were members of the white or so-called European race. In reaching that conclusion, we stated that:
"Although the Tartars were originally considered Asiatic barbarians of the Mongolian variety, the majority of Tartars have for several centuries lived in eastern (European) Russia, have become civilized and partially absorbed or assimilated by association and intermarriage. * * * The Tartar group has become absorbed into the mass of eastern Russian peoples and more or less Europeanized in blood and custom, even though the racial traces are still discernible. The Soviet rule during the past thirty-three years has probably hastened the process of integration, since the Soviet government requires all communities to speak Russian, in addition to their own traditional language." [Emphasis supplied.]
Great Russians, Belorussians (White Russians), Ukrainians, Tartars, Ossetians, Nogaytsys, Armenians, Georgians, Bashkirs, Kirgiz — Kazkas, and Dagestans, to mention a few of the many racial groups in Russia.
Section 303 requires that the applicant for naturalization be of preponderantly white blood. We stated in Matter of S---- ( supra), that:
The test of eligibility for naturalization under section 303, Nationality Act of 1940 (8 U.S.C. 703) as a "white person" is not the origin of the applicant's racial strain, but rather the racial composition evaluated at the present time. ( United States v. Thind, 261 U.S. 204 (1923)).
Applying this test, S----, a European Tartar, was found to be a member of the white race and eligible for naturalization. In recent years, the courts have concluded that such racial groups as the Afghans, Arabs, Armenians, and Syrians are also eligible to naturalization under section 303.
Upon consideration of the above-mentioned precedents, we conclude that the Kalmuks of southeastern European Russia are members of the white or so-called European race, in spite of their Asiatic origin. Therefore, the charge that appellants are racially ineligible to citizenship is not sustained.
In addition, appellant D---- R---- was excluded as a person afflicted with a physical defect which will affect his ability to earn a living (sec. 3, act of 1917). The Public Health Service found appellant to be a class B, physically defective person, on the basis of being afflicted with hypertensive cardiovascular disease and high blood pressure (220/135). The Public Health Service certificate of December 20, 1944, listed appellant as 80 percent disabled for normal physical activities, with this condition progressive. A certificate of examination issued July 31, 1950, terms the disability as chronic, but that appellant is only 50 percent disabled for normal physical activities.
Counsel for appellant has pointed out that appellant plans to work as a foreign-language tutor in this country, which is not a physically taxing position, and that his sponsor is well aware of his condition. While appellant will not be employed doing manual labor, still we feel that appellant's physical condition is of a type which will affect his activity in any type of work and might impair his ability to earn his living as a tutor. The charge is sustained, but appellant's admission will be authorized under section 21, act of 1917, if an appropriate bond can be furnished.
Appellants must, of course, have valid immigration visas when embarking for this country, but replacement visas may be obtained for appellants' visas, which have expired during the course of the present administrative inquiry, ( Matter of V----, A-7366161 and A-7394626 (July 6, 1950)).
Order: It is hereby ordered that the appeal of D---- R---- be sustained, provided a $1,000 public charge bond is posted and a replacement visa is obtained.
It is further ordered that the appeal of S---- R---- be sustained, provided that a replacement visa is obtained.
APPENDIX
THE KALMUKS
I. RACIAL ORIGIN OF THE KALMUKS
Mongolian race, Sibiric branch: Kalmuks Mongolian group. Dorboth tribe
| 1. Tartars (in the narrow sense) — majority of | which reside in southeastern European | A. Finnic group. | Russia. | B. Tungusio group. | 2. Karaks — otherwise known as Kirghiz or "Cossacks" called Ural-Altaic | C. Jap group. | sacks" (but not the the Don Cossacks). linguistically, and Mongoll-Tartario D. Arctic group. 3. Turks — of Asia Minor. in the ethnic | E. Tartaric group (in | 4. Huns — who settled in central and southern sense. | broad sense of | Europe about A.D. 600. | term). | 5. Turkomans. | 6. Yakuts, Uzbegs, etc. | 1. — | a. Khoshot tribe of central Asia, east of Tibet | in the region of Koko-nor and East | Turkestan. | b. Dzungar tribe of Sungaris, China. F. ..... c. Torgot tribe of western Asiatic Russia in the | Kalmuk steppe area, east of the Volgs | River. | d. of southeastern European | Russis, with which we are presently | concerned.II. HISTORICAL BACKGROUND OF THE KALMUKS
The Kalmuks of southeastern European Russia were a tribe of Mongolian stock, originally nomadic in character, tormented by perpetual poverty and numbering less than an estimated 135,000 people in 1939. After the Bolshevik Revolution of 1917, the Soviet Government sought the support and loyalty of the downtrodden Kalmuks by decreeing that the area of the Kalmuk steppes and adjoining territory should be the property of the Kalmuk people in perpetuum and also granting the Kalmuks a measure of administrative autonomy within the Soviet framework, first as an autonomous oblast (province) and later as an autonomous republic. Fate of Minorities under Soviet Rule ( supra).However, on February 11, 1943, the Soviet Politbureau and the State Committee of Defense, in joint conference, determined that the Kalmuks should be displaced and deported, because they opposed the oppressive Soviet regime and, hence, were considered wanting in loyalty, dangerous to the State. This order was actually executed on February 22, 1944 (Red Army Day), when without warning and at gun-point, the Kalmuk population was herded into unheated railroad cars. Since they were sent on their journey in locked cars, without benefit of food or water, many died en route, while the rest were scattered in various spots of the Soviet Union. This action, by which the helpless Kalmuk minority group was forced to migrate east, was ratified, or legalized in retrospect, by Soviet government decree in 1946. Col. G.A. Tokaev, The Moscow Conspiracy ("Murder of a Nation"), chapter IV, chapter VI.
It will be noted that historical accounts of the Kalmuk race mention the Kalmuk migration of 1771. The Kalmuk tribe involved in that ill-fated trek eastward toward China lived on the east bank of the Volga River in Asiatic Russia. This group is distinct from the Kalmuks of southeastern European Russia, for they stayed aloof from the neighboring Russian and non-Russian tribes. Their flight was motivated by fear of Russian Tsarist influence and domination.
III. BIBLIOGRAPHY
Encyclopedia Americana, v. 16, p. 285.
Encyclopedia Brittanica, v. 2, p. 574; v. 12; v. 13, p. 246; v. 15, p. 719.
Dictionary of Races or Peoples, Washington, 1911 (S. Doc. 662, 61st Cong., 3d sess.).
New International Encyclopedia, v. 13, p. 80; v. 20, pp. 171, 238.
DeQuincey, Revolt of the Tartars (Flight of the Kalmuck Khan), N.Y., 1895.
Hammerton, Universal World History, N.Y., 1937, v. 2, 4, 5, 6, 8, 10.
Hammerton and Barnes, Illustrated World History, N.Y., 1928.
Hayes and Moon, Ancient and Modern History, N.Y., 1933.
Howorth, History of the Mongols, London, 1876, 4 parts, 5 volumes; "The Kalmuks," pt. I, ch. 9-12.
Rose, Development of the European Nations (1870-1900), London, 1905.
Schapiro, Modern and Contemporary European History, Cambridge, 1942.
Segal, Concise History of Russia, London, 1944.
Rawlinson, Ancient History, London, 1869.
Turner, Europe Since 1789, N.Y., 1924.
(C.S. Hammond Co., publisher) The Historical Atlas, N.Y., 1937.
Shepherd, Historical Atlas, N.Y., 1926.
Maps: Caucasia and neighboring territories, U.S. Army Map Service, 113664, Nov. 1942 (copied from No. 4327, 1942, published by Geographical Section, British General Staff).
Europe and the Near East, National Geographic Magazine, 1943.
European USSR Ethnic Groups (before 1939), CIA 10443, 5-48.
USSR, CIA 11043, 6-49.
USSR, CIA 11162.12, 2-49.
USSR Ethnic Composition, CIA 11240, 7-49.
Discussion: The record relates to a 58-year-old male (principal applicant) and his 56-year-old wife, natives of Russia, presently stateless, who applied for admission into the United States for permanent residence at Munich, Germany, and were examined by a board of special inquiry at that place in order that their admissibility pursuant to the Displaced Persons Act of 1948, as amended, might be determined. At the conclusion of the hearing on August 9, 1950, they were found inadmissible by such board and have appealed from such decision. On November 2, 1950, the excluding decision of the board of special inquiry was affirmed by this Service on February 16, 1951, their appeal to the Board of Immigration Appeals was sustained.
The point at issue is whether the aliens have established that they have a preponderance of the blood of white persons so as to be racially eligible to citizenship in accordance with the provisions of section 303 of the Nationality Act of 1940. This Service has concluded that they have failed to establish their eligibility to citizenship, inasmuch as they have a preponderance of the blood of the Kalmuk race which is not considered as white. The Board of Immigration Appeals on the other hand concluded that members of the Kalmuk race were members of the white race and consequently the aliens had established their eligibility to citizenship.
It is agreed that the Kalmuks are a race of the Mongolian group and that the ancestors of the aliens came from a small group of Kalmuks who migrated in the opening years of the 17th century from the original habitat in central Asia to southeastern European Russia, ultimately settling in that portion of Russia which lies between the mouth of the Don River and the mouth of the Volga River. In this latter region, the aliens were born. It was concluded by the Board of Immigration Appeals that this group of Kalmuks, after residing in European Russia for a little over 300 years have become partially integrated with the other ethnic groups in Russia, which process of integration has been hastened during the past 33 years of Soviet rule.
It is well settled that the test of eligibility for citizenship under section 303 of the Nationality Act of 1940 as to "a white person" is the racial composition evaluated at the present time, as set forth in the case of U.S. v. Thind, 261 U.S. 204 (1923). In that decision it was further stated "The question for determination is * * * whether we can satisfy the common understanding that they are now the same or sufficiently the same to justify the interpreters of a statute — written in the words of common speech, for common understanding by unscientific man — in classifying them in the statutory category as white persons."
The Kalmuks have only been settled in European Russia for a little over 300 years, a comparatively short time in the history of western civilization. As set forth in the Dictionary of Races or Peoples (S. Doc. 662, 61st Cong., 3d sess., p. 86), compiled in 1911, the Kalmuks are a race or people belonging to the Mongolian group who are not related in language so closely to the Tartars as to the Mongols of Northern China and in appearance and culture are more Asiatic than the Tartars. While it is true that 33 years of Soviet rule may have hastened the process of integration, it does not follow that the characteristics of this group, as set forth in a compilation made in 1911, have been materially altered in such short space of time. The Board of Immigration Appeals appears to have based their decision on the ruling made in the case of S----, A-7377747 (July 12, 1950), wherein it was held that Tartars of European Russia are members of the white race. However, there is a substantial difference between that group and the one presently under consideration. The Tartars are members of the Tartaric group whereas the Kalmuks are of the Mongolian group. The Kalmuks are more closely related in language to the Mongols of northern China rather than to the Tartars; they are more Asiatic than the Tartars in appearance and culture and the settlement of the Kalmuks in European Russia was in sufficiently recent time for them to still retain much of their original speech and culture.
In the light of the foregoing and the discussion presented in the order of this Service of November 2, 1950, as to this phase, it is believed that the order of the Board of Immigration Appeals is contrary to the intent of Congress and the language of the statute involved.
Motion is hereby made that the Board of Immigration Appeals consider and withdraw its order of February 16, 1951, and that it enter an order dismissing the aliens' appeal from the order of this Service dated November 2, 1950. This Service desires representation before the Board.
It is further moved that, in the event the Board of Immigration Appeals does not grant the foregoing motion, it certify the case to the Attorney General for review pursuant to the provisions of 8 C.F.R. 90.12 (c).
Discussion: This case is before us on motion of the Acting Commissioner, dated March 16, 1951, requesting reconsideration and withdrawal of our order of February 16, 1951, or, in the alternative, referral of the case to the Attorney General for review is requested.
The facts, the grounds for inadmissibility, and the administrative action taken below is discussed adequately in our order of February 16, 1951. At that time, we held that appellants were not inadmissible as persons racially ineligible to naturalization, because the Kalmuks of southeastern European Russia are members of the white race. The Service's motion asking for reconsideration is based on the contention that Kalmuks are of the Mongolian race, rather than of the white race.
The Immigration Service suggested during oral argument that, if the words of the courts (in holding the Arabs, Armenians, and Syrians eligible for naturalization) and of this Board (relating to the status of the Afghans) are applied to the Kalmuks, the result would be a finding of their racial ineligibility to citizenship. We cannot agree with this conclusion, for we believe that the authorities enumerated in footnote 2 of Matter of S---- (A-7377747, July 12, 1950; 19 L.W. 2069), substantiate our finding of eligibility. The Kalmuk tribe in question is a racial group which inhabits a part of Europe. Members of this tribe are thus in a better position to contend that they are "white persons" than the Afghans, Armenians, Syrians, and non-European Arabs, who have been held eligible to naturalization. Ex parte Mohriez, 54 F. Supp. 941 (Mass., 1944).
As we have pointed out previously, the criterion of racial eligibility for naturalization under section 303 of the Nationality Act is the test formulated by the Supreme Court in U.S. v. Thind, 261 U.S. 204 (1923).fn2 The term "white person," as commonly understood, has been held to include all races living in Europe, even though some of the southern and eastern European races included are technically classified as Mongolian or Tartaric in origin.
See Matter of S---- ( supra), and our prior opinion in this case ( Matter of R----, February 16, 1951).
Also included in this statutory class are some Asiatics whose long association with European nations (occasioned by their proximity to the European borders) and cultural assimilation have caused them to be considered as persons of the same general characteristics. ( Wadia v. United States, 101 F. (2d) 7 (C.C.A. 2, 1939); U.S. v. Cartozian, 6 F. (2d) 919 (D. Oregon, 1925); In re Charr, 273 Fed. 207 W.D. Mo., 1921); Re Young, 198 Fed. 715 (W.D. Wash., 1912)).
In the motion now before us the Immigration Service disputes our evaluation of the racial composition of the Kalmuks (see pt. II of the appendix to our decision of February 16, 1951, and affirms their reliance on the definition of the Kalmuk people in the Dictionary of Races or Peoples. It is well to note that this definition of the Kalmuk race is a comparative one, rather than an absolute one on which complete reliance may be placed; only from the sum total of all necessary, reliable facts and related comparisons can an absolute definition be reached. Furthermore, as we mentioned in our prior memorandum, the fact that the dictionary was published in 1911 must not be overlooked, since much research has been done in the field of ethnology during the past four decades. Various references to the Kalmuks in the dictionary serve to substantiate our conclusion, obtained from other sources, that the western (Dorboth) tribe of Kalmuks, of which appellants are descendants, have become more or less Europeanized (Cf. Id., p. 146). It is also stated that the Kalmuks are considered as closely related to the Magyars, Huns, and Tartars of Europe ( Id., pp. 92, 98, 140).
S. Doc. 662, 61st Cong., 1911, p. 86:
"A race or people belonging to the Mongolic group now living mainly in southeastern Russia. Much smaller in numbers than the Tartars, their neighbors, to whom they are not related in language so closely as to the Mongols of northern China. In appearance and culture also they are more Asiatic than the Tartars. They still follow a nomadic life with their herds on the steppes of Russia somewhat as they did in their old home in central Asia around Lake Balkash and at the foot of the Altais. They serve with the Cossack cavalry, mainly in the capacity of herdsmen. In religion they are Buddhists."
It is felt that more recent sources should not be ignored in arriving at a valid conclusion, since these contemporary studies of races ought to be more reliable. Fate of Minorities under Soviet Rule, Department of State, Soviet Affairs Notes, No. 91, December 28, 1949; Voluntary and Involuntary Soviet Migrations, Department of State, DRE information, Note No. EER-51, June 30, 1949; The Moscow Conspiracy ("Murder of a Nation") by Col. G.A. Tokaev, 1950; European USSR Ethnic Groups (before 1939), CIA map study, 10443, 5-48; USSR Ethnic Composition, CIA map study, 11240, 7-49.
In addition, the terms used in this definition must be clarified and their exact meaning understood, before the explanation can be fully evaluated. For example, the use of "Mongol" is a loose application of the word for the Magyars of Hungary, the Huns of the Balkans and the Italian peninsula, the Finns, the Tartars, and the Mordvinians of east-central Russia are all members of the Mongol racial family. Encylopedia Americana, volume 16, page 285; Encylcopedia Brittanica, volume 2, page 574, volume 12, volume 13, page 246, volume 15, page 719; Dictionary of Races or Peoples ( supra); New International Encyclopedia, volume 13, page 80, volume 20, pages 171, 238; Segal, Concise History of Russia, London, 1944.
See pt. I of the appendix to decision of February 16, 1951. The Finnic group, mentioned there, is composed of (1) Magyars, (2) Finns, (3) Lapps, (4) Esths, (5), Livs, (6) Mordvinians, and other Russian minorities.
The Kalmuks of southeastern European Russia are admittedly of Mongolian origin, as are the Tartars of the same general area but these parallel racial groups have both become fused with the rest of the racial minorities of southeastern European Russia by a gradual process of association and intermarriage. Thus, both the Kalmuks and Tartars have become "more or less Europeanized in blood and custom, even though the racial traces are still discernible" (as stated in Matter of S---- ( supra), p. 2). Hammerton and Barnes, Illustrated World History, N.Y., 1928; Hays and Moon, Ancient and Modern History, N.Y., 1933; Schapiro, Modern and Contemporary European History, Cambridge, 1942; see also, sources cited in previous paragraph.
Counsel for the Immigration Service has suggested that perhaps this case is not one typical of the Kalmuk race and hence should be decided individually. We do not feel that such an approach to the problem is permissible.
The Board, in consulting various available sources of information relating to the Kalmuks, has in fact obeyed the dictates of the Supreme Court in Ozawa v. United States, 260 U.S. 178 (1922), for we have considered the words of the statute as signifying a racial rather than an individual test, thus adhering to the spirit of the statute.
Concerning the comparison of photographs of S---- and the R----'s, made by the Service in an effort to substantiate their stand that the Kalmuks are more oriental than European, appellants' counsel has appropriately pointed out that the test of eligibility for naturalization under section 303 has never been whether a particular person looks like a white person. In addition, the criterion has never been solely that of racial characteristics. Photographs, even if they constitute a true likeness of subjects, are not considered as conclusive evidence of the issue to which they relate. Cf. Matter of G---- S----, A-7366180 (August 16, 1950); Matter of L---- B---- L----, A-7369410 (April 28, 1950)).
Counsel for the Immigration Service also contends that appellants have failed to discharge the burden of proof cast upon them, as applicants for admission. In the instant case, the aliens have made a substantial prima facie showing of eligibility for admission, which the Assistant Commissioner overruled; thereafter, counsel for appellants has affirmed their contentions, speaking authoritatively in rebuttal from available legal and ethnological sources. We feel that appellants have discharged the burden of establishing admissibility in adequate and reasonable fashion ( Northeastern Electric Co. v. Federal Power Commission, 134 F. (2d) 740 (C.C.A. 9, 1943); Bailey v. Zlotnick, 133 F. (2d) 35 (C.A.D.C., 1942)).
Upon further consideration of the problem, we affirm our determination of February 16, 1951.
The motion for reconsideration is denied. We will, however, accede to the request of the Commissioner and refer the case to the Attorney General for review of our decision.
Order: It is ordered that the motion be denied.
The decision and order of the Board of Immigration Appeals dated April 20, 1951, are hereby approved.