MATTER of S-Tn DEPORTATION Proceedings

MATTER of S-Tn DEPORTATION Proceedings

A-8423672

Decided tni Board May 15, 1959

Loss of citizenship—Foreign military service—An Forsa of Ireland.

Service in the An Forsa (defense forces) of Ireland during a period when it

was not activated held not to constitute service in the armed forces of a

foreign state so as to cause expatriation of dual national of United States

and Ireland under section 401(c) of Nationality Act of 1940.

Cx_r_ratona

Order: Art of 1952—Section 241(a) (1) [8 U.S.C. 1211(a) (1)]—Excludable

at entry under S U.S.C. 1182(a) (22)—Ineligible to citizenship.

BEFORE THE BOARD

Discussion: This matter is before us pursuant to the order of a

special inquiry officer on February 12, 1955, terminating the proceedings and dertifying the case to this Board for final decision.

The respondent is a 30-year-old unmarried male, native of Ireland and claiming United States citizenship, who last entered this

country on March 11, 1956, as a returning resident. He has resided in the United States since December 23, 1952, when he was

admitted for permanent residence as a quota immigrant. The order

to show cause charged that the respondent was excludable on March

11, 1556, as an alien ineligible to citizenship because be had applied

for exemption from United States military service on August 18,

1953, and had been relieved from training and service on the ground

of alienage. We agree with the special inquiry officer's conclusion

that alienage has not been established and our discussion will be

limited to that ip_seo.

The respondent was born in Ireland on November 15, 1928. He is

the legitimate son of a man who was born in the United States in

1891 and who has not become expatriated. The respondent at birth

became a citizen of Ireland and a citizen of the United States—the

latter under section 1993 of the Revised Statutes. On March 24,

1946, he enlisted for a 5-year term in An Forsa Consanta Aitiuil.

The English equivalent is stated in the record at times as Local

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Defence Force and at other times as Reserve of Men. It will be

referred to hereinafter as An Forsa.

The respondent stated that An Form met weekly for drill exeraiaaa; that attendance teas not compulsory; that there was no penalty for failure to attend; and that he received no pay during the

entire period of enlistment. He testified that about Easter of 1948

he was injured in an accident while en route to maneuvers of An

Forsa; that he was informed by his sergeant that he would be discharged; that he was employed in another town. commencing in 1949;

and that he did not attend any exercises of An Form after the

accident in 1948. However, the records indicate that the respondent was not actually discharged from An Forsa until March 23

1951, upon the expiration of his term of enlistment.

The respondent's testimony et the hearing on Juno 19, 1057, waa

to the effect that he had not prior thereto made a claim of being a

citizen of the United States; that he has 2 brothers and 3 sisters

in this country; and that he believes that all of them were admitted

as United States citizens. He stated that he did not apply for a

United States passport because friends had told him that he lost

his citizenship because of his service in An Forsa.

At the time the respondent enlisted in An Forsa, he executed an

oath which may or may not have been an oath of allegiance. However, the respondent was then under 18 years of age and it is clear

that the taking of the oath and the eilliAment, itself could not have

caused expatriation in view of the provisions of section 403(b) of

the Nationality Act of 1940 [8 U.S.C. 803(b), 1946 ed.]. There

are two questions involved in this case: (1) Whether the respondent served in the. armed forces of a foreign state, that is, whether

the service in An Forsa constituted service in the armed forces of

Ireland, and (2) whether his service after becoming 18 years of age

was voluntary. While the respondent continued to be a member of

An Forsa until March 23, 1951, it appears from his testimony that

he can hardly be said to have served in An Forsa after Easter of

1948.

With respect to the first question mentioned above, a letter addressed to counsel on September 13, 1957, by the Irish Department.

of Defence contains the statement that a member of An Forsa would

not have been a member of the armed forces of Ireland unless called

out on permanent service, and that An Form had not been called

for such service be[ween 1047 and 5050. There is alc, a letter dated

August 21, 1958, from the Minister for External Affairs of Ireland

which contains the statement that during the entire period between

1946 and 1951 An Forsa "was an integral part of the Defence Forces

of Ireland." The last-mentioned letter contains the specific statement that it was based on information furnished officially by the

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Minister for Defence of Ireland. A letter dated March 20, 1958, by

the Department of External Affairs of Ireland contains statements

to the effect that service in An Forsa is on a part-time basis; that

attendance at training is voluntary, subject only to the condition

that a member is required to attend a minimum number of training parades; that an obligation to render full-time milifary service

would arise only if An Forsa were called out in defense of the

state; and that such a situation has not arisen since the establishment of An Force.

In a letter dated March 30, 1959, counsel informed this Board that

he had written to the Minister for Defence on January 5, 1959,

tameernin ■o the apparent discrepancy between the two letters mentioned above, and he enclosed a copy of a reply dated March 4,

1959. In this letter the Minister for Defence stated that, although

An Forsa was formed as a class within the Reserve and had certain

attachments to the Defence Forces, the position of the respondent,

in law, was that unless he was called out on permanent service he

was not a member of the armed forces of Ireland. It was further

stated that An Forsa was not called out on permanent service during the period from March 24, 1946, to March 23, 1951.

After careful examination of the record, it is our considered opinion that:, while An Pores iteelf may have been an integral pore of

the defense forces of Ireland, the respondent's service in An Forsa

did not constitute service in the armed forces of Ireland. We be, 2 T. & N. Dec.

lieve the situation is analogous to Meter at Z

F— , 2 I. & N. Dec.

346 (Atty. Gen., 1945), and Matter of L

455 (1946), in which it was held that service in the Canadian Officers' Training Corps and the University Air Training Corps of

Canada did not constitute service in the armed forces of Canada.

In the first case, we specifically stated that only service in that part

of a foreign army which is activated or subject to active Military

duty will satisfy the requirements of section 401(c) of the Nationality Act of 1940.

The second question we have referred to above is whether the

respondent's service after becoming 18 years of age was voluntary.

As we have indicated, his evlislment while under the age of 18

would not have caused his expatriation even if An Forsa had been

part., of the armed forces of Ireland. Tt was stated in a communication dated February 3, 1958, that the respondent did not apply

for discharge prior to the termination of his enlistment ; that it was

open to hint to do so at any time; and that the discharge of a member of An Forsa during the period from 1946 to 1951 "could only

have been effected on application by him for his discharge on compassionate grounds but he would have to prove adequate cause for

his case to merit consideration on such grounds."

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The record does not disclose precisely what is regarded by the

Irish authorities as "compassionate grounds" for a discharge but

presumably it means that the respondent would have had to prove

that hia continued service would result in hand..hip to him or other

persons. While it was stated that the respondent could have applied

for a discharge at any time, the fact that he failed to do so is not

significant if actually he would have been unable to obtain a discharge.

The Service contends that the testimony of the respondent is to

the effect that any member of An Forsa, could obtain a discharge

regardless of whether compassionate grounds existed. We agree

that the respondent seems to have been of that opinion but the evidence introduced by the Service shows that he was mistaken and

that he would have to prove that his case merited discharge on

compassionate grounds. The respondent's testimony is that no

change occurred in his situation or that of his family between the

time of •his enlistment and his discharge, and we believe- it is clear

that counsel has put in issue the question of whether the respondent's service in An Forsa after his 18th birthday was voluntary or

involuntary. On the basis of the record before us, we do not believe

that the Government has established by clear, convincing and unequivocal evidence that the respondent voluntarily served in An

Forsa after reaching the age of 18 as required by the decision in

Nish:lb:ma v. Duties, 356 U.S. 129 (1958). We conclude, therefore,

that it has not been established that the respondent is an alien, and

the special inquiry officer's action was correct.

Order: It is ordered that the special inquiry officer's order of

February 12, 1959, terminating the proceedings, be and the same is

hereby affirmed.

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