The opinion
Interim Decision #1234
Aarizit OF ViLLARBA-RETES
In DEPORTATION Proceedings
A-11481354
Decided by Board July 27, 1962
(1) An alien nonimmigrant enlisted abroad under the Act of June 30, 1950, as
amended (Lodge Act), who returns to the United States as a member of
the Armed Forces and is honorably discharged after less than five years of
service, lacks the lawful admission for permanent residence required to
qualify for naturalization under the provisions of that Act.
(2) Respondent's entry as a member of the Armed Forces did not, under section
284, Immigration and Nationality Act, give him any rights or privileges
wader Title II of that Act not otherwise granted, and, upon return to the
United States as a member of the Armed Forces and discharge therefrom,
he resumed the immigration status which was his prior to enlistment.
CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Remained
longer.
Respondent is 30 years old, alien, single, a. native and citizen of the
Philippines. The special inquiry officer found respondent deportable
on the above-stated charge, granted respondent voluntary departure,
and entered an automatic order of deportation in the event that he
• fails to depart. Respondent did not depart, and he appeals to this
Board.
On or about October 17, 1955 respondent was admitted to the United
States at Guam temporarily as a contract laborer. He was employed
as a clerk-typist, authorized to remain in the United States in that
status until June 30, 1958. On July 17, 1957 respondent was volun-
tarily inducted into the United States Army, and he served until he
was honorably discharged at Fort Monmouth, New Jersey on June 17,
1961. On December 11, 1961 respondent was informed that since the
contract under which he was admitted to the United States had ex-
pired, he was granted until January 15, 1962 to depart voluntarily.
While in the Army respondent was transferred from Guam to Ha-
waii, and through the United States to Germany. While in Germany
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Interim Decision. #1234
he reenlisted on June 18, 1959. His Army record (Ex. 8) establishes
that while in. the service respondent received several commendations
and the Good Conduct Medal, and an honorable discharge. Counsel
states that respondent volunteered to reenlist at the expiration of his
four years of service, but his reenlistment was not accepted, because
the Army is now authorized to accept as enlistees only citizens or those
who have declared an intention to become naturalized.
Respondent seeks to qualify for the benefits of the Act of June 30,
1950, 64 Stet. 316, as amended by the Act of June 27, 1952, 8 USCA
1440, note, Section 402(e) of the Immigration and Nationality Act . 2
Counsel'NticfApaes,"Throndt'lisme
the United States Army, while serving in Germany, was within the
purview of the Act of June 30, 1950, and conferred upon. him the
status of one lawfully admitted for permanent residence upon his
entry to the United. States pursuant to military orders. Having ac-
cepted his reenlistment pursuant to the terms of the Act, respondent
has a vested right to continue to serve for five years providing his serv-
ice remained honorable. Upon the conclusion of four years service,
the respondent sought to reenlist for a. further term of service. The
refusal of the military authorities to accept his application for reen-
listment was improper and constituted a. deprivation of due process
of law."
The Lodge Act, as it is referred to, expired only two weeks after
respondent's reenlistment in Gefluany. The "refusal" of the Army
to accept respondent for a third two-year period was dictated by the
fact that Congress after repeatedly extending the Act, permitted it
to expire on July 1, 1959. After that date there could be no farther
acceptance of enlistments from aliens abroad. The law did not create
a "vested right" in any alien to continue to serve in the United States
Army. The statute clearly provided that the right to be deemed to
have been lawfully admitted to the United States for permanent resi-
dence did not accrue to an alien until he fulfilled all the conditions
precedent of the statute, including the five or more years of military
service.
The terminology and purpose of the Act of June 30, 1950 are so clear
that it should not be necessary to cite authority. Several cases have
arisen under this and similar statutes. Dela Cena v. United States,
249 F. 2d 341 (9th Cir. 1957), held, among other things, that the bene-
fits of the Act were not available to a citizen of the Philippines who
served almost three years in the Army in. the Philippines and Okinawa,
retired, then. enlisted, again in the Philippines, as a seaman in the
The period of authorized enlistment was extended to June 30, 1957, by the
Act of July 12, 1955 (69 Stat. 297), and again extended to July 1, 1959, by the
Act of July 24, 1957 (71 Stet. 311).
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Interim Decision #1234
United States Navy. He entered the United States under naval orders
and was still here when he filed a petition for naturalization a year
and a half after his enlistment in the Navy_ Delft. Cerra contended that
he had been "lawfully admitted to the United States." The court
denied the petition, stating that there was an "absence of the Congres-
sional intent that his coming in under Navy orders made him an im-
migrant admitted for permanent residence." The court made it clear
that the appellant must comply with all the requirements of the stat-
ute, including an honorable discharge "after completion of five or
more years of military service."
In re Chow's Petition, 146 F. Supp. 437 (S.D.N.Y., 1956) , arose
under the Act of June 80, 1953, P.L. 86, 83d Congress, 8 U.S.C.A.,
1440a, which provided. for naturalization of an alien who served 90
days in the Armed Forces between June 24, 1950 and July 1, 1955,
and who had been "lawfully admitted to the United States" and had
been "physically present within the United States for a single period
of at least one year at the time of entering the Armed Forces". Chow
was a seaman who was illegally in the United States and enlisted in
the United States Army on December 12, 1952 while released on bond
by the Immigration and Naturalization Service. He served two years
in the United States Army, including service overseas. On his return
he was permitted to enter the United States without a visa as part of
the Armed Forces and was then honorably discharged. Chow con-
tended that his entry as a member of the United States Army consti-
tuted a lawful admission to the United. States within the meaning of
Public Law 86. The court traced the congressional history of that
Act, and put special emphasis on the meaning of the word "entry", as
distinguished from the phrase "lawfully admitted." The court asked
(p. 490), "Does an alien serviceman who is returning to the United
States in the uniform of the Armed Forces enter the United States in
either an immigrant or nonimmigrant status?" and then quoted section
284 of the Immigration and Nationality Act in toto. 2 It stated that
this section explicitly declared that the privilege of entering in the
uniform of the Armed Forces does not confer upon an alien member
any rights not otherwise specifically granted by the Immigration and
Nationality Act of 1952, and further said, "If it. had been intended that
2 Section 284, I. & N. Act provides: "Nothing contained in this title shall be con-
strued so as to limit, restrict, deny, or affect the coming Into or departure from
the United States of an alien member of the Armed Forces of the United States
who is in the uniform of, or who bears documents identifying him as a member
of, such Armed Forces, and who is coming to or departing from the United States
under official orders or permit of such Armed Forces : Provided, That nothing
contained in this section shall be construed to give to or confer upon any such
alien any other privileges, rights, benefits, exemptions, ox immunities under this
Act, which are not otherwise specifically granted by this Act."
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Interim Decision #1234
an alien who was a -member of the Armed Forces could, by returning
with the Armed Forces, acquire a 'lawful admission' for naturalization
purposes, Public Law 86 would have so provided." The court ex-
plained that Public Law 86 granted naturalization to an alien who
had been lattofully admitted to the United States if he had served be-
tween 1950 and 1955 for a period of not less than 90 days, whereas
Public Law 597, 54 Stat. 316 (with which we are concerned here),
providing for the naturalization of aliens enlisting in the regular
Army "after completion of five or more years of military service", was
to apply to an alien who enlisted in the United States Army while in
Europe. The court held that Chow was not eligible for naturalization
under either statute, citing Petition of Lena:old, 116 F. Supp. 777
(D.C.N.J. 1953).
Petition. of D'Auria, 139 F. Supp. 525 (D.C.N.J. 1956), held the
entry into the United States of an alien in the Armed Forces is not such
a "lawful admission" as came within the meaning of Public Law 86.
The court found D'Auria not eligible for naturalization, despite two
years in. the United States Army, including duty overseas from
December 28, 1953 to May 29, 1955. See also Petition of Santos, 169
F. Supp. 115 (D.C.N.Y. 1958).
This Board followed Dela Cena in Matter of G—, 8 I. & N. Dec. 21
(B.I.A. 1958). A native of Bulgaria enlisted in the Armed Forces
in Europe. He entered the United States and was then given an unde-
sirable discharge before completing five years' service. We held he
was not eligible for the benefits of the Act of June 30, 1950, had not
been lawfully admitted for permanent residence, and we ordered him
deported on a no-visa charge. He refused to apply for voluntary
departure.
It may be accepted, then, as established, that respondent's departure
from and return to the United States as a member of the Armed Forces
had no effect upon his admission status, because he had not completed
five or more years of military service. While in the Armed Forces he
VMS in a "suspended" status. When he became detached from the
Armed Forces, for whatever reason, he resumed the status which was
his prior to his enlistment. This holding is dictated and required by
the proviso contained in section 284 of the Immigration and National-
ity Act.
Counsel states that in Matter of G—, supra, and in Matter of .Z4,
unrep., A-11006046 (B.I.A. July 21, 1959) , the Board ordered deporta-
tion on the "no visa charge". He quotes Z4 as holding specifically
that the "remained longer" charge was not a proper one (oral argu-
ment, p. 2). Counsel admits that there is no practical difference to the
alien between a "no-visa" charge and a "remained longer" charge, but
states that the legally sustainable and proper charge here is "no visa".
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Interim Decision #1284
There is a difference between G— and Zefi and the instant case. G--
and Zefi enlisted in the Armed Forces abroad, and had made no entry
prior to their entries with the Armed Forces. They admitted entering
with the intention to remain. In those cases a "no-visa" charge was
the correct one. In Zefi we stated that the alien was entitled to an
opportunity to leave voluntarily in. accordance with the requirement
of U.S. ea, rel. Sommerleamp v. Zimmerman, 178 F. 2d 45 (3rd Cir.
1949), and that he must be given this opportunity before he could
be found to have "made an entry" into the United States. Once he
was given the opportunity to depart voluntarily, and failed to avail
himself of it, he could have been deported either on a "no-visa" or a
"remained longer" charge. It happened that the order stated a no-
visa charge against Zefi; there was no specific holding by this Board
that a "remained longer" charge was not a proper one.
Villarba-Reyes entered the United States at Guam as a nonimmi-
grant where he was employed for almost two years 'before he joined
the Armed Forces. Section 284 relieved him of the limitations and
restrictions of Title 2 only while he was "in the uniform of, or bears
documents identifying him as a member of, such Armed Forces". This
is the meaning of the proviso in section 284 that nothing contained
in that section shall be construed to give any such alien rights, privi-
leges, etc. which are not otherwise specifically granted by this Act.
When he ceased to be a member of the Armed Forces he returned to
his status as a contract worker admitted to the United States as a
nonimmigrant for a specified period.
Respondent. has been granted voluntary departure. By his failure
to depart he became a contract worker who has "remained longer",
and the charge set. forth in the order to show cause is the correct
one. We have no authority to confer the benefits of section 402(e),
as amended, upon an alien who has been honorably discharged after
only four years of military service, even though it was his desire to
continue in the career service. The appeal must be dismissed.
ORDER: It is ordered that the appeal be and is hereby dismissed.
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