A-5113737.
Decided by Central Office June 17, 1947. Decided by Board July 11, 1947. Decided by Board October 14, 1947.
Ineligible to citizenship — Neutral alien files exemption from United States military service — Section 3 (a) of the Selective Training and Service Act of 1940, as amended — Inadmissibility — Sections 13 (c) and 28 (c) of the Immigration Act of 1924, as amended.
An alien who files exemption from United States military service as a national of a neutral country is barred from naturalization under the provisions of section 3 (a) of the Selective Training and Service Act of 1940, as amended, and is inadmissible as one ineligible to citizenship under the provisions of sections 13 (c) and 28 (c) of the Immigration Act of 1924, as amended, it not appearing that he served honorably in the armed forces of the United States after filing such exemption.
CHARGE:
Warrant: Act of 1924 — Ineligible to citizenship.
BEFORE THE CENTRAL OFFICE
(June 17, 1947)
Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served on the alien's attorney on May 5, 1947, are hereby adopted.
This respondent is a native of Austria, citizen of Switzerland by naturalization of his father, 31 years old, married, male, who last entered the United States at San Ysidro, Calif., on February 18, 1946 and was admitted upon the presentation of Austrian quota visa No. 514, first preference, issued by the American Consul of Tijuana, Mexico on the same date. This entry has been verified. The alien originally entered the United States as a visitor on August 5, 1938, departed and reentered the United States at Miami, Fla. on January 5, 1939. He remained in the United States until February 18, 1946 when he went to Mexico and reentered as stated above.
There was introduced in evidence as exhibit 12 the alien's "application for relief from military service" DSS Form 301 executed by the alien on June 2, 1943. The respondent being a national of Switzerland, a neutral country, he was eligible to apply for the relief requested. He testified further that he executed the application for relief from military service as he was under the impression that he would not qualify for naturalization as a member of the United States Armed Forces as he had not been lawfully admitted to the United States for permanent residence. Thereafter, upon learning that he could qualify for naturalization on basis of military service notwithstanding the lack of lawful admission for permanent residence, he filed an application with the draft board for voluntary induction. Pursuant thereto he was ordered to report for preinduction examination. Following his examination he was given a "Certificate of Fitness" and ordered to report for induction. He reported on January 2, 1945 and was taken to Fort MacArthur, San Pedro, Calif., and advised that "You are in the Army now." He was retained at Fort MacArthur until January 9, 1945 when he was dismissed as not qualified for military service.
The respondent testified further that before executing application Form DSS 301 for relief from military service he was advised by the Swiss Legation that in accordance with the provisions of article II of the Treaty of Friendship, Commerce and Extradition concluded between the United States and Switzerland on November 25, 1850, the execution of Form DSS 301 would not act to waive his right to become a citizen of this country. In substantiation thereof he submitted a photostatic copy of a letter addressed to him on May 27, 1943 by the Swiss Legation in Washington, D.C. It is the administrative view that the Selective Training and Service Act of 1940, insofar as it requires all aliens to submit to military service, is inconsistent with and repeals the provisions of the treaty with Switzerland on November 25, 1850, whereby Swiss nationals in this country were exempted from military service and that a Swiss national who desires relief from military service must make application for exemption pursuant to the statute. ( Matter of Z----, C-6371138 (Aug. 1, 1944); Matter of E----, C-5360000 (Nov. 27, 1944)). The Legation's letter states in part as follows:
Please note that, through filing of DSS Form 301, revised, you will not waive your right to apply for American citizenship papers. The final decision regarding your naturalization will remain solely with the competent Naturalization Courts.
The respondent contends that action of the Selective Service authorities in ordering him to report for his induction, his compliance therewith and his 9 days at Fort MacArthur under military supervision and discipline constitute induction and honorable service in the Armed Forces of the United States. If this contention is sustainable, he has eliminated a bar to his eligibility for United States citizenship and is now a lawful permanent resident of this country. However, the chief clerk of the Local Selective Service Board No. 20 of New York County, N.Y. reported under date of July 25, 1946 that the "registrant has never been a member of the Armed Forces of the United States." In a letter which the local Selective Service board addressed to the respondent under date of March 11, 1947, it is stated that "since you do not become a member of the Armed Forces unless you are actually sworn into the Service, our records do not indicate that you were ever, at any time, a member of the Armed Forces."
Counsel in his memorandum admits alienage and the fact that the respondent filed an application for relief from military service as a neutral alien. However, it is contended that the alien entered the Armed Forces of the United States when inducted and was a "medical holdover" for a few days. The respondent testified that he did not take any oath of allegiance to the United States and the record shows that at no time was he in the Armed Forces.
Counsel further objects to conclusions of law as to deportability and urges that proceedings be withdrawn. It is claimed that the respondent's application for exemption from military duty did not bar him from citizenship in view of his subsequent action of volunteering for induction. He further claims that since the Government had knowledge of the facts adduced in these proceedings and as the respondent was not guilty of fraud or concealment, the Government is estopped from finding that at time of last entry the alien was ineligible for citizenship. He points out that the alien's deportation would result in serious economic detriment to his citizen wife. He contends that the Swiss treaty, being a higher degree than the Service Act, overrules and repeals the repugnant provisions of the act rather than reverse the treaty.
A treaty primarily is a compact between independent nations. It may contain provisions that confer certain rights upon the citizens or subjects of one of the nations residing in territorial limits of the other, which partake of the nature of municipal law and which are capable of enforcement as between private parties in the courts of the country. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that "this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land."
A treaty, then, is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined; and when such rights are of a nature to be enforced in a court of justice, the court resorts to the treaty for a rule of decision for the case before it as it would to a statute. ( Edge v. Robertson, 112 U.S. 580 (1884)). Treaties are of equal obligation and efficacy with acts of Congress ( Whitney v. Robertson, 124 U.S. 194 (1888)). If a treaty and an act of Congress contain inconsistent provisions, the one last in date will control ( Totus v. U.S., 39 F. Supp. 7 (D.C., Wash., 1941)).
As a national of a neutral country, the alien filed a claim to exemption from military service under section 3 (a) of the Selective Training and Service Act of 1940, as amended, and submitted Form DSS 301. By so doing he became ineligible for citizenship within meaning of sections 13 (c) and 28 (c) of the Immigration Act of 1924. It is the administrative view that such an alien remains barred from naturalization unless thereafter he serves honorably in the Armed Forces of the United States (O.I. Part 352 III). An alien ineligible for citizenship cannot be granted suspension of deportation as provided for in section 19 (c) of the 1917 act, as amended ( Matter of G----, A-3591839 (July 12, 1946)). It has also been held that an attempt to withdraw Form DSS 301 filed under the above-mentioned act short of actual service in the Armed Forces, leaves neutral alien ineligible to naturalization. ( Matter of Z----, CF-125370 (May 15, 1946); Matter of O----, A-1141799 (Apr. 29, 1946); Matter of N----, A-3180834). The record shows that this alien never served in the Armed Forces of the United States, and accordingly, he is ineligible for suspension of deportation.
On October 24, 1944 the respondent married an American citizen. The wife is dependent upon him for support. His mother and sister reside in the United States and both are self-supporting. He earns an average yearly income of from $4,000 to $5,000 as an author-novelist and has assets in this country in excess of $22,000. He testified that his only arrest was for violation of the traffic laws. The alien declined to apply for discretionary relief under section 19 (c) of the 1917 act, as amended. In the circumstances, an order of deportation will be entered.
Order: It is ordered that the alien be deported to Switzerland at Government expense on the charge contained in the warrant of arrest.
In accordance with 8 C.F.R. 90.3, the case is referred to the Board of Immigration Appeals for consideration.
Upon consideration of the entire record, it is ordered that the decision of the Commissioner be and the same is hereby affirmed.
Discussion: This case is before us on motion of counsel for respondent requesting reconsideration of our order of July 11, 1947, in which we approved the Commissioner's decision of June 17, 1947, directing respondent's deportation to Switzerland.
Respondent is a native of Austria and a national of Switzerland. He first came to the United States as a visitor in 1939 and remained here under that status until February 18, 1946. He then went to Mexico, applied for and obtained a first-preference quota immigration visa, and was readmitted to the United States for permanent residence on February 18, 1946.
After respondent's admission in February 1946, it was discovered that on June 2, 1943, he had claimed and obtained exemption from military service as a national of a neutral country, in accordance with the provisions of section 3 (a) of the Selective Training and Service Act of 1940, as amended. Deportation proceedings were then instituted on the ground that at the time of entry respondent was ineligible to citizenship under section 13 (c) of the Immigration Act of 1924 and hence deportable from the United States. The term "ineligible to citizenship" was then defined in section 28 (c) of the Immigration Act of 1924 to include aliens who were debarred from becoming American citizens under section 3 (a) of the Selective Training and Service Act of 1940, as amended.
The record facts in respect to respondent's claim of exemption from military service indicate that respondent had sought exemption, first, because he thought that having this status of a visitor, he could not be naturalized if he were inducted into our armed forces. His second reason for seeking exemption was due to the fact that the Swiss authorities had advised him that he would not waive his right to apply for naturalization by seeking exemption from military service as a national of a neutral country. When respondent learned that he could be naturalized if inducted into the armed forces notwithstanding his status as a visitor, he attempted to withdraw his claim of exemption and applied for voluntary induction into the armed forces. In accordance with his request he was reclassified and was directed to report for induction on January 9, 1945. The Army rejected him for military service because of personality defects. The Commissioner, in considering the case on June 17, 1947, held that a neutral alien who claimed and obtained exemption from military service under section 3 (a) of the Selective Training and Service Act of 1940 remained ineligible for naturalization unless he thereafter actually served honorably in the armed forces. Because respondent had not served in the armed forces, the Commissioner found him ineligible to citizenship under section 13 (c) of the Immigration Act of 1924 at the time of his last entry and hence subject to deportation under the provisions of the Immigration Act of 1924. We affirmed the Commissioner's action in directing the respondent's deportation to Switzerland.
Counsel for respondent, in requesting reconsideration, contends that when respondent volunteered for induction he was thereafter no longer ineligible to citizenship, notwithstanding that he subsequently was rejected for military service by the armed forces. We do not agree with counsel's contention. We think that the Attorney General's decision in Matter of J----, 4558054 (June 9, 1947) and Judge Gourley's decision in Matter of Martinez, 2774-P-148745 (W.D. Pa., July 23, 1947) require us to find that respondent was ineligible to citizenship at the time of his last entry in February 1946.
Matter of J---- concerns a national of Finland who sought and obtained exemption from military service on February 22, 1943, when Finland was a neutral country. On April 5, 1945, Finland became a cobelligerent. The alien was then reclassified and directed to report for induction in July 1945. Because of a physical defect, J---- was rejected by the armed forces. The Board held that after Finland became a cobelligerent, respondent could not legally claim exemption as a neutral alien. We concluded that since respondent could not claim exemption, he could not be penalized by withholding from him the right to become a citizen of the United States. The Attorney General reversed the Board, saying:
By the above-quoted provision of the Selective Training and Service Act (sec. 3 (a)) aliens within the United States and of military age were required to elect whether they wished to assume the benefits and burdens of American citizenship and, if so, to subject themselves at that time to liability for one of its burdens. Mr. J---- elected not to do so. His wish was respected and he was, in fact, accorded the exemption provided in such cases. The language of the statute seems plain and I think the Congress intended that he should be bound by his election.
Matter of Martinez concerns a Spanish national who claimed exemption on August 4, 1942. Only 2 weeks after filing his claim of exemption, he attempted to withdraw it and apply for induction. He reported for induction in September 1942, but was rejected because of a physical disability. The alien then, at his own expense, underwent operative treatment to cure his physical defect. By the time he had recovered from his operation, the armed forces were no longer accepting men over 38 years of age. The alien was then over 38. In denying his petition for naturalization, the court held that he was not eligible for citizenship on the ground that he had claimed exemption from military service as a national of a neutral country and also on the ground that he was not attached to the principles of the Constitution as evidenced by his claim of exemption.
In this particular case respondent elected in June 1943 not to serve in the armed forces. His wish was respected by the Selective Service officals. He was accorded the exemption provided for by section 3 (a) of the Selective Training and Service Act. Though he applied for voluntary induction in the summer of 1944, we must hold that he is bound by his election in June 1943 and that he was not eligible for citizenship at the time he last entered the United States.
Order: The motion for reconsideration is denied.