56175/69
Decided by Board February 27, 1945
"Draft" Evader — Alien, Excludability — Section 3 of the Act of February 5, 1917, as amended — Evidence.
An alien, who was lawfully admitted to the United States for permanent residence in March 1944, when he was told by the admitting officer he had 90 days within which to register under the Selective Training and Service Act of 1940, as amended, and who departed within 90 days of such admission, lest he be compelled to register here for the draft and thereafter be unable to live out of the United States, is not deemed excludable from the United States under the provision of section 3 of the Act of February 5, 1917, as amended by the Act of September 27, 1944, as one who departed to evade or avoid service in our armed forces, since he was held not liable thereto at the time he departed.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917, as amended — Departed to evade United States military service.
BEFORE THE BOARD
Discussion: The subject, a native and citizen of Mexico, 29 years of age, applied for admission as a local crosser worker on November 18, 1944, at the port of San Ysidro, California. He presented a resident alien's border crossing identification card revalidated to expire on November 26, 1944 but, following a hearing before a Board of Special Inquiry December 13, he was excluded on the above designated ground. He appealed.
The record establishes that the subject was admitted to the United States under the provisions of section 4 (c) of the Immigration Act of 1924, on December 29, 1943, and that from January 4 to April 3, 1944, he resided in this country. The appellant testified that he departed for Mexico on April 3 because he knew that if he remained more than 90 days in the United States he would be compelled to register under the Selective Training and Service Act of 1940, as amended, and that, if he had so registered, he would not have been able to live in Mexico. He also testified, "I am not afraid to register for Selective Service and I know that for those who live in the United States and are called into the Service, the Government provides for their families; but I wasn't sure that they would provide for mine, since it was in Mexico. That's really why I didn't want to register."
Section 2 of the 1940 Act, supra, provides:
Except as otherwise provided in this act, it shall be the duty of every male citizen of the United States, and of every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of 18 and 65, to present himself for and submit to registration at such time or times and place or places and in such manner and in such age group or groups, as shall be determined by rules and regulations prescribed hereunder,
and section 611.3 of the Selective Service Regulations provides:
Every male citizen and every other male person, except a person within one of the categories, specifically excepted by the provisions of section 611.13, who is within the age groups of persons who have been required by the first or any subsequent proclamation of the President to present themselves for and submit to registration and who is not within one of the several states of the United States, the District of Columbia, Alaska, Hawaii or Puerto Rico on the day fixed for registration of persons within such age groups shall present himself for and submit to registration before a local board when he thereafter returns to or for the first time enters any State of the United States, the District of Columbia, Alaska, Hawaii or Puerto Rico.
The appellant not having in his possession "an official document issued pursuant to authorization of or described by the Director of Selective Service which identifies him as a person not required to present himself for and submit to registration," as required by section 611.13, supra, was technically required to register immediately upon his entry into the United States on January 4, 1944, but from a practical standpoint aliens are permitted 90 days within which to register after coming to the United States since within that period, any alien who has not declared his intention to become a citizen of this country and who lawfully enters the United States may file with the local board where he is at the time located, an Alien's Application for Determination of Residence for the purpose of ascertaining whether or not he comes within the provisions of the statute relating to "any other male persons residing in the United States" (Selective Service Regulations, 611.21).
Inasmuch as the appellant was advised at the time of his entry on January 4, 1944, that he had 90 days within which to register for the draft, it would be inequitable to hold him responsible to a strict, technical application of the terms of the Selective Service Act of 1940, as amended. Insofar as this case is concerned, therefore, it is concluded that the appellant left the United States prior to the expiration of the time within which he was required to register and so could not have departed for the purpose of evading service in our armed forces for which he was not yet liable. His appeal will, accordingly, be sustained.
Findings of Fact: Upon the basis of the evidence, it is found:
(1) That the appellant is an alien, a native citizen of Mexico;
(2) That the appellant seeks admission into the United States as a local crosser worker;
(3) That the appellant was admitted to the United States on December 29, 1943, under section 4 (c) of the Immigration Act of 1924 as a local crosser worker;
(4) That from January 4, 1944 to April 3, 1944, the appellant resided in the United States without registering under the Selective Training and Service Act of 1940, as amended;
(5) That the appellant did not depart from the United States on April 3, 1944, for the purpose of evading or avoiding service in the armed forces of the United States.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
That under section 3 of the Immigration Act of February 5, 1917, as amended, the appellant is not inadmissible to the United States as a person who has departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces of the United States.
Order: It is ordered that the appeal be sustained and the appellant admitted to the United States as a local crosser worker.