Interim*D6cision:41556

Interim*D6cision:41556

OF NUNEZ-TORO

In Exclusion. Proceedings

' A-12178069

Decided by Board February 24, 1966

(1) Appellant, who, following arrival in the United States as a nonimmigrant

without a visa in direct transit to Canada, applied-for admission as a

political refugee thereby abandoning any claim. to nonimmigrant status

and manifesting a desire to remain indefinitely in this country, must be

considered an immigrant and since he is not in possession of a visa nor

eligible for a waiver thereof, he is excludable under section 212(a) (20),

Immigration and Nationality Act, as amended.

(2) Absent evidence or indication of any desire to avoid training and service

.. in the United States Armed Forces, an alien who deserted the United States .

Armyandepthiscourylaftehisdmonr.paet

residence and voluntary enlistment in 1980, is not inadmissible under section 212(a) (22) of the Act where the only evidence tends to indicate he

departed to Cuba either to attend his mother whom he believed ill or because

he felt obligated' to Change her pro-Castro attitude; he voluntarily snr-•

Tendered to the United States!• military authorities in Costa Rica in 1983;

and he has, for some time, expressed a desire to be permitted to complete

his enlistment

Fro-Lampe: Aet of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—No

immigrant visa.

Act of 1952—Section 212(a) (22) [8 U.S.C. 1182(a) (22)7—

Departed from or remained outside United States to avoid

military service.

This case is before us on appeal from a decision of 'a special inquiry

officer excluding the appellant on - the grounds stated above.

We have carefully reviewed'the entire record. The appellant is a

25-year-old married male, native and citiien of Cuba, who was admitted for permanent residence as an immigrant on May 15, 1960.

On June 21, 1960, he enlisted in the United States Army for a term

of three years but deserted on September 24, 1900 and was discharged

on September 26, 1963 under other than honorable conditions while

in a status of desertion. He was absent from. the United States

from about September 1960 to May 8, 1965 -when he arrived as an •

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airline passenger without a visa in transit to Canada and made his

present application for admission to the United States claiming

to be a political refugee. In reaching the conclusion concerning

excludability on the two grounds stated above, the special inquiry

officer found that the appellant abandoned his residence in the

United States in September 1960; that, upon his last arrival on

May 8, 1965, he was not in possession of any immigration document

other than his passport; and that he had "failed to establish that

the purpose of such desertion and departure was not to evade or

avoid service in the Armed Forces of the United States during a

period of national emergency." The issue in this case is whether

the appellant is excludable on the two- grounds mentioned, and we

have given full consideration to the brief submitted by him.

The appellant was married about November 1960, approximately

two months after his arrival in Cuba, and two children have been

born of this marriage. He was employed in Cuba and lived there

with his wife and children until August 1963 when he departed for

Central America with the intention of attempting to return to the

United States. He stated that he did not have sufficient funds for

the passage of his wife and children, and they are still residing in

Cuba.

The first ground of excludability stated above is based on 8 U.S.C.

1182(a) (20) under which an arriving alien, other than a nonimmigrant, is required to present an immigrant visa or other immigration

entry document. In his brief, the appellant contended that he is

not an immigrant and that this statutory provision does not apply

to him. However, section 101(4) (15) of the Immigration and

Nationality Act [8 U.S.C. 1101(a) (15)]. provides that the term

"immigrant" means every alien except an alien who is within the

classes of nonimmigrant aliens there set forth. As we have indicated

above, the appellant arrived as a nonimmigrant without a visa in

direct transit to Canada. Upon arrival in. the United States, however, he applied for admission as a political refugee. It is apparent

that he abandoned any claim to nonimmigrant status; that he

desires to remain indefinitely; and that he must be considered an

immigrant. We concur in the special inquiry officer's conclusions

that the appellant abandoned his residence in the United States in

September 1960; that he• is not -eligible for a waiver of the visa

requirements under 8 U.S.C. 1181(b) and the regulation (8 CFR

211.1) ; and that he is excludable on the first ground mentioned

above.

The special inquiry officer concluded that the appellant "is subject to exclusion under the provisions of section 212(a) (22) of the

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Interim Decision #1556

Immigration and Nationality Act, and is ineligible for ,citizenship

as one who has departed from the United States to evade or avoid

service in the Armed Forces of the United States during a period

declared by the President as a national emergency.", . Apparently

the special inquiry officer considered that the apiiellant was ineligible to citizenship by reason. of his departure. - Actually, this

'statutory provision [8 U.S.C. 1182(a) (22)] provides for the exclusion of two distinct classes: (1), those who are ineligible to citizenship and (2) "persons who have departed from or- who have remained outside the United States to avoid or evade training or

service in the armed forces in. time of war or a period declared by

the President to- be a national emergency, * *,*." The term "ineligible to citizenship" is defined in 8 U.S.C. 1101(a) (19). In gen'eral, it relates to those who claimed exemption from military service

on the ground of alienage and those covered by section 314 of the

Immigration and Nationality Act [8 U.S.C. 1425] and its predecessor

[section 306 of the Nationality. Act of 1940]. Although 8 U.S.C.

1425 covers desertion from the military forces, it is limited; to

desertion in time of war and also requires that there be a conviction'

for the desertion. We have found nothing in the present record

which would show that the appellant is ineligible to citizenship. -Accordingly,_ the question which' requires determination is whether

he departed from or remained outside the United • States to evade

training or service.

The predecessor of 8 U.S.C. 1182(a) (22) was section. 3 of the

Immigration Act of 1917 as amended by section 2 of the Act of

September 27, 1944' [58 Stat. 746; 8 U.S.C. 136, 1246 Ed.]: This

statutory provision was originally enacted during World War II,

and it is apparent that its primary purpose was to reach those

seeking to evade the draft rather than deserters from the armed

forces who were already subject to military penalties. Nevertheless,

we previously held that this prior legislation was not limited to

• those who departed froin the United. States before becoming members of the armed forces but that it applied equally to an alien

who departed. after his induction. Matter of B B , 2 L & N.

Dec. 482 (1946) ; Matter of V B , 3 I. Se N. Dee. 265 (1948).

We have -also held that the departure or the remaining outside the

United States must have been for the primary purpose of avoiding

military service. Matter of 0 11 , 2 I. & N. Dec. 861 (1947) ;

Mayor of 1f—, 2 & N. Dee. 910 (1947) ; Matter of E , 4 I. & N.

Dec. 452 (1951). Hence, the appellant would be inadmissible if his primary purpose for departing or remaining abroad was to avoid

training or service in the armed forces.

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The special inquiry officer did not specifically find that the

appellant's primary purpose in deserting the United States Army

and in departing from this country was to evade service in our

armed forces. but only that he had failed to establish otherwise.

There is a. great deal of irrelevant evidence in the record before us,

but it contains little information concerning the one matter which

is pertinent to this ground of inadmissibility, that is, the appellant's

purpose in departing from the United States about September 24,

1960. The only evidence concerning this appears to be a statement

in the appellant's affidavit of May 27, 1965 (Ex. 10) that he was

Compelled to go to Cuba to "attend" his mother who had informed

him that she was ill and his testimony at pages 11, 13 and 14 of

the transcript. This testimony is to the effect that he is antiCommunist; that he was only 19 years old when he deserted from

the United States Army; that he had to go to Cuba because his

mother was very much in favor of Caetroi that he worked with his

mother and stayed there with her for two years and helped her see

"the reality in Cuba"; that his mission has been accomplished; and

that his mother was imprisoned in Cuba at the time of the hearing

on September 15, 1965. The appellant's parents were divorced in

1954 and his custody was awarded to his mother.

After careful consideration of the record, we find that the appellant

did not depart from the United States for the purpose of evading

training or serviee in the United States Army but that he returned

to Cuba either because he believed his mother was ill or because lie

felt obligated to endeavor to change her pro-Castro attitude. We

believe that our finding is substantiated by the fact that the appellant was not a draft dodger but voluntarily enlisted in the United

States Army; the fret that there is nothing). to indicate that he had

any desire to avoid training and service in the armed forces; and the

fact that the record indicates that the appellant voluntarily surrendered to United States military authorities in Costa Rica, about December 24, 1963 and has, for some time, expressed a desire to be

permitted to complete his enlistment of three years in the United

States Army. We conclude that the appellant is not inadmissible

under 8 U.S.C. #1182(a) (22).

In his brief, the appellant stated that he was requesting "refugeeescapee" status under the Act of September 11, 1957 [section 151.

However, that provision was repealed by section 24(a) of the Act

of September 26, 1961 [75 Stat. 650; Public Law 87-301]. The

appellant also contends that his case is within section 243(h) of the

Immigration and Nationality Act, but the Supreme Court has held

in Lev Nay Ma v. Barber, 357 U.S. 185 (1958), that this statutory

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Interim Decision #1055

provision is not applicable in exclusion cases but only in derlortation

cases. Apparently, the appellant was or is under parole in the

United States pursuant to 8 U.S.C. 1182(d) (5) and 8 CFR, 212.5.

natters relating to termination of parole and release under parole/

are not within the province of this Board but are within the jurisdic

tion of the District Director of the Service. of the district in which

the appellant is located. The other contentions of the appellant in

his brief are without merit and do not require specific discussion.

Although we hold that the appellant is not excludable on the second

ground stated above, we have concluded that he is inadmissible on

the first ground. Accordingly, his appeal will be dismissed.

ORDER: It is ordered that the following Conclusion' of Law be

substituted for Conclusion of Law numbered 2 in the special inquiry

officer's decision:

The appellant is not subject to exclusion under the provisions of section

212(a) (22) of the Immigration and Nationality Act IS 1).s.o. 1182 (a) (22)1-

It is farther ordered that the appeal be and the same is hereby

dismissed. .

505