In DEPORTATION Proceedings

MATTER OF H—

In DEPORTATION Proceedings

A-8523020

Decided by Board August 22, and October 13, 1960

Ineligible to citizenship—Exemption from military service—Effect of subsequent service in armed forces.

(1)

Bar to citizenship imposed by section 315 of Immigration and Nationality

Act against alien who obtained exemption from military service in ID54 wao

not removed by his subsequent volunteer service in armed forces during

peacetime period, 1956-58.

(United States v. Hoetiger, 273 P.2d 760, distinguished.)

(2) Termination of deportation proceedings to permit filing petition for naturalization will not be authorized where respondent's purpose is to obtain

review by the naturalization court of the findings made in the deportation

proceeding. Respondent has remedy available under section 10 of the Administrative Procedure Act to obtain judicial review of the deportation

order.

CHARGE •

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable

at entry as an alien who was ineligible to citizenship (section

212(a)(22); 8 U.S.C. 1182(a)(22)).

BEFORE THE BOARD

(August 22, 1960)

DISCUSSION: On February 8, 1960, the Board dismissed rerespondent's appeal from a decision of the special inquiry officer

holding him deportable and denying voluntary departure. The

alien seeks termination of proceedings, contending that he is not

ineligible for United States citizenship for having filed Forms

SSS-130 and S-1120. As a result of filing these forms the Selective

Service authorities placed him in class IV—C, an alien exempt from

military service. Respondent later served two years in the United

States Army. Counsel rests his motion for reopening and reconsideration on Ceballos v. Shaughnessy, 352 U.S. 599 (1957), and

United States v. Hoellger, 273 F.2d 760 (C.A'. 2, 1960).

Respondent, a native and citizen of Switzerland, was admitted to

the United States for permanent residence as a quota immigrant on

August 10, 1953. On May 19, 1954, he executed the forms referred

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to above requesting exemption from military service. There has

not been any suggestion that respondent did not comprehend the

meaning and significance of the forms. He has testified that he

served in the Swiss army in 1952, and, as a Swiss citizen, was not

permitted to enter the armed forces of any other country. He

consulted an official of the Swiss Legation in Washington, p.c., and

was advised to claim exemption under the treaty between Switzerland and the United States. At that time treaty aliens were no

longer exempted from service in the Armed Forces of the United

States,1 and there is no contention that this case is governed by

Moser v. United States, 341 U.S. 41, 46 (1951).

Respondent remained in class IV—C until he requested induction

into the armed forces on March 22, 1956, and was inducted into the

army on June 19, 1956. He served honorably for two years until

June 18, 1958, including a period of active duty abroad. He was

placed in reserve status thereafter for a period of four years. Exhibit 6 indicates that the terminal date of his reserve obligation is

June 1R, 1962.

The respondent testified that after he entered the army and before he was transported overseas, the Swiss Army Sixth Division

court-martialed him in absentia for his service in the United States

Army and sentenced him to three months' imprisonment and the

costs of the court-martial. He testified further that on January 4,

1958, while he was in Europe, he had his court-martial proceedings

in Switzerland reopened. He succeeded in having the proceedings

suspended or dismissed, because respondent and the court believed

that he was going to become an American citizen within a reasonable time. He testified that he fears if he is returned to Switzerland, not having become a United States citizen, he would be

again court-martialed for having served in the United States Armed

Forces.

Respondent completed his two year service in the United States

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Army while he was in Germany. He applied for separation from

active duty status while overseas, in order to spend some time in

Sweden with the family of his fiancee, now his wife. He was married in Sweden, and his wife was admitted to the United States for

1 Section 101(a) (19), Immigration and Nationality Act; 8 U.S.C. 1101(a)

(19) : The term 'ineligible to citizenship,' when used in reference to any individual, means notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time, permanently debarred

from becoming a citizen of the United States under section 3(a) of the SeleCtive Training and Service Act of 1940, as amended (54 Stat. 885; 55 star.

844), or under section 4(a) of the Selective Service Act of 1948, as amended

(62 Stat. 605; 65 Stat. 76), or under any section of this Act, or any other

Act, or under any law amendatory of, supplementary to, or In substitution for,

any of such sections or Acts." (Emphasis added.)

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permanent residence and is now living with him in this country.

She testified on August 24, 1959, that she was expecting the birth

of a child.

Counsel contended that respondent's reentry on September 10,

1958, did not constitute an "entry," because he returned to the

United States under military orders. We sustained the special inquiry officer's holding that respondent made an entry for immigration purposes.

The principal contention made by counsel at this time is that respondent has never been "effectively relieved" from military service

under section 315(a) of the Immigration and Nationality Act. 2

CounselbmitardMy19,60iectngrspod

to report for further duty as a member of the United States Army

Reserve at Fort Riley, Kansas, for the period July 3, 1960, to

July 17, 1960.

There has been abundant litigation concerning applications of

aliens in the United States for exemption from military service.

There are only a few court cases where, following such application,

the alien actually served in the Armed Forces of the United

States. We have had a number of such cases, however. Matter

of S—, 7-561 (B.I.A., Aug. 29, 1957), concerned a Swiss citizen

in much the same position as respondent. He claimed exemption

from military service and later was granted voluntary departure

from the United States, and returned to Switzerland. He succeeded

in reentering the United States from Switzerland, and testified that

the consul in Switzerland told him that if lie were willing to go into

the service now "it would be all right." He served in the United

States Army from March 5, 1956, until September 1, 1956, at which

time he was honorably discharged from military service as "an

alien without legal residence in the United States." He was made

the subject of deportation proceedings, and the Board held that the

alien was excludable for being ineligible to citizenship at the time

of his last entry, and barred from citizenship by section 315 of the

Immigration and Nationality Act, stating:

It is the administrative position that an alien who obtained exemption froM

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military service on the ground of alienage is not ineligible to citizenship unho

thereafter served honorably in the Armed Forces of the United States between September 1, 1939, and December 31, 1946 (during World War H,

der section 515 nor 101(a) (19) of the Immigration and Nationality At if

3 Section 315(a), Immigration and Nationality Act; 8 U.S.C. 1426(a)

: "Notwithstanding the provisions of section 405(b), any alien who applies or has

applied for exemption or discharge from training or service in the Armed

Forces or in the National Security Training Corps of the United States on

the grounds that he is an alien, and is or Was relieved or discharged from

such training or service on such ground, shall be permanently ineligible to

become a citizen of the United States. (Emphasis added.)

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thereby coming within the provisions of section 529 of the Iinuagratiou and

Nationality Act), or became eligible for the benefits of the Act of June 30,

1953 (Public Law 86, 83d Cong., 1st Sess.), by active service in the Armed

Forces of the United States between June 25, 1950, and July 1, 1955. The

respondent who served in the United States Army between March 5, 1958,

and September 1, 1956, is not eligible for naturalization on the basis of his

military service.

.. . The subsequent military service of the respondent from March 1956 to

September ltrati Goes not relieve him hum the consequences of his act, inasmuch as Congress has not seen fit to declare that by virtue of such service

the respondent would thereby become eligible for naturalization. . . .

We said in Matter of 8—, supra, that court decisions do not appear to be uniform concerning whether the Moser decision has been

superseded by section 315 of the Immigration and Nationality Act

and whether this section had retroactive effect. Similarly, court

decisions are not uniform as to whether subsequent service in the

armed forces relieves the alien of his "permanent ineligibility" to

become a United States citizen. There is a lot of discussion in cases

where tho alien did not actually serve_

We find two cases where

naturalization was denied to a petitioner in the armed forces: In re

Derail, 160 F. Supp. 531 (D.C. Cal., 1957), and In re Elken's Petition, 161 F. Supp. 823 (D.C. N.Y., 1958).

We find three cases where the alien actually served in the armed

forces following an application for exemption, and his petition for

naturalization was granted: United States v. Hoellger, 273 F.2d

760 (C.A. 2, 1960)

Petition for Naturalisation of Felleson, 169

F. Supp. 471 (D.C. Ill., 1958) ; and Petition of Ahrens, 138 F. Supp.

70 (D.C. N.J., 1956).3

The alien relies on United States v. Hoellger, supra, wherein the

facts are similar to those now before us, except that Hoellger

served after induction, whereas respondent served after volunteering. Hoellger was a German citizen who was classified IV-C by his

draft board on September 11, 1952, cut Its own initiative. On

May 13, 1954, his draft board, again acting on its own initiative,

sent him an application for exemption which he filled out and returned. His IV-C classification was continued until February 9,

1955, when his draft board reclassified him I-A, because of abrogation of the treaty with Germany. Hoellger was inducted April 18,

1955, served his full term and received an honorable discharge on

April 6, 1957. The parties agreed that his eligibility for citizenship was to be determined by section 315 (a) of the Immigration and

Nationality Act. The court stated that when Congress used the

words in this section "relieved from service" it meant "effectlivek

relieved":

3 Petition of Ahrens,

supra, is unlikely to be a precedent and Is included

here only fur the !sake of completeness. It is unique on its facts and also in

its grant of citizenship on those facts.

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. . An alien who has actually served in the Armed Forces under compulsion of the executive branch of the Government cannot be said tc have been

effectively relieved from service. Moreover, the cases the Government cites

do not support the proposition that under section 315(a) eligibility for citizenship is lost despite the fact of military service resulting from involuntary

induction....

In view of the above we hold that appellee was not relieved from service

within the moaning of section 315(a) ; and we also point out that the principle of "elementary fairness" suggested in Moser v. United States, 1951, 341

U.S. 41, 47, 71 S.Ct. 553, 95 L.Ed. 729, may well be applicable here.

Petition for Naturalization, of Felleson,, supra, concerned a Swedish alien who made a claim of exemption on May 8, 1951, during

the Korean War, asserting that filing this application was the only

way he knew to obtain permission to visit his dying mother in

Sweden. After his mother's death he volunteered, and "someone,"

not identified in the record, wrote "Cancelled" 4 across his exemption application, said the court. On April 1, 1952, Felleson was

inducted into the United States Armed Forces and served two

years, including combat action in Korea. The court reviewed the

draft legislation, including the World War I enactments, and quotes

Moser, supra, that Congress gave the alien "a choice of exemption

and no citizenship, or no exemption and citizenship." The court

stated that the Selective Service laws and regulations have never

dealt with the situation, of an alien who applied for exemption and

later became available for nwilitary service, either through his volun-

tary choice or because of a change in the statute or regulations.

The court said:

The picture is quite different, however, when the alien actually has become a member of the armed forces. It is utterly incongruous to suppose

that a person who in fact has worn the uniform and has performed military

functions should be denied the naturalization boon because of a relinquished

exemption claim. A distinction doubtless could be made if Immunity was

enjoyed during hostilities and the military involvement took place after the

shooting stopped. Cf. United. States v. Keavny, supra.

But it seems that

when the military duty was undertaken under reasonably comparable conditions, the del:dal of citizenship benefits to a combat veteran cannot be justified in logic or equity or ou the basis of legislative intent. Under such circumstances it might' well be found that the applicant was not relieved from

military obligations and that under the injunction of section 315 of the 1952

Act his access to naturalisation benefits thus is not foreclosed. . .

The court cited cases, including rulings under World War I legislation, and found, in addition, that Public Law 86 granting naturalization to aliens who served in the United States Armed Forces for

at least 90 days between June 1950 and July 1, 1955, created benefits for Fellesort, even though the law had expired before his peti4 A similar notation appears on exhibit 4 of the present record: "Cancelled,

6116/54, John L. Mokersky," the signature being that of the Chairman, Selective Service Board 102, Michigan.

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tion was presented. The court declared that the military service,

coupled with the legislative dispensation, extinguished the perpetual

debarment from naturalization benefits, and granted the petition.

Here is the weakness in respondent's case, and we pointed to the

same flaw in Matter of 8—, supra. He did not serve within the

time provided by Congress in Public Law 86.

In re Cerati, 160 F. Supp. 531 (D.C. Cal., 1957), is one of the

two cases cited by lioellger where naturalization was denied to a

petitioner in the armed forces. The court suggests that Cerati was

"active" in seeking release from military service, and his term of

service resulted from voluntary induction at a time when it suited

his own convenience, not at a time chosen by his local board: "In

contrast Hoellger served without protest at a time and under circumstances chosen for him by his local board" (footnote 2, p. 762).

In re Elken's Petition, supra, probably turned, on the fact that

the alien was effectively relieved from military service during the

time the United States was engaged in the war in Korea, and was

not inducted until nearly four years after he made application for

exemption, at a date when this country was not actively at war.

There is a group of cases wherein the courts granted citizenship,

even though the petitioner had filed an application for exemption

from military service and never served in the armed forces. The

rationale for the grant varies from case to case. Felleson, supra,

refers to Kiviranta and Caputo, infra, as "rejected by an overwhelming array of authorities." This group seems to be the minority view: Petition, of Caputo, 118 F. Supp. 870 (D.C., 1954); Kirviranki v. Brownell, 141 F. Supp. 435 (D.C., 1956) ; United States v.

Bazan, 228 F.2d 455 (C.A. D.C., 1955) ; Application of Mirzoeff,

253 F.2d 671 (C.A. 2, 1958).

Petition of Kutay, 121 F. Supp. 537 (D.C. Cal., 1954) ; Petition

of Berini, 112 F. Supp. 837 (D.C. N.Y., 1953) (held, alien had no

knowledge under Moser rule) ; Petition of Gourary, 148 F. Supp.

140 (D.C. N.Y., 1957) (held, Austrian alien enemy given wrong

classification by draft board) ; Petition of Zunnsteg, 122 F. Supp.

670 (S.D. N.Y., 1954) (held, German enemy alien never made application for exemption) ; Petition of Sally, 151 F. Supp. 888 (D.C.

N.Y., 1957) (held, under Moser, alien had no knowledge); Petition

of Pianos, 152 F. Supp. 456 (D.C. N.J., 1057) (hold, under Moser,

alien had no knowledge) ; Petition of Ajlouny, 77 F. Supp. 327

(D.C. Mich., 1948).

In each of the following GA SPS the alien was not granted naturalization. He applied for exemption from service, although in many

of them he attempted, following his original application, to volunteer, and was rejected as physically unfit : Jubran v. United States,

255 F.2d 81 (C.A. 5, 1958) (held, the alien "enjoyed the exemption

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for a year") ; In re Skender's Petition, 248 F.2d 92 (C.A. 2, 1957) ;

United States v. Kenny, 247 F.2d 139 (C.A. 2, 1957) (application

for exemption was made during Korean 'War; withdrawal of request for exemption was nut until May 1955) ; Vetasyuez v. United

States, 139 F. Supp. 790, affd. 241 F.2d 126 (C.A. 2, 1957) (Local

Board Memo No. 112 was amended to permit a persort situated as

was petitioner to remove some of the stigma, but not the disability,

by volunteering for induction) ; Machado v. McGrath ; 193 F.2d 706

(C.A. D.C., 1951), cert. den. 342 U.S. 948 (1052) (Circuit•Court

states that request for induction by aliens who filed 301 should be

made in an "Application for Voluntary Induction." "Draft boards

were instructed not to surrender DSS Form 301. They were advised

that the effect to be given Form 301 when followed by Form 165

was a matter to be determined by the courts. A notation to this

effect was to be typed on the face of each Form 165 prior to the

applicant's signature.") ; Benzian v. Godwin, 168 F.2d 952, 956-7

(C.A. 2, 1948), cert. den. 335 U.S. 886 (1048) ("disability outlives

the repeal of the Act") ; Petition of Cuozzo, 235 F.2d 184 (C.A. 3,

1956) (contains the much quoted dictum, "If, as has been suggested,

administrative practice has been to refrain from insisting upon denial of citizenship to those aliens who do in fact serve their term

in the armed forces, that administrative practice cannot alter the

explicit direction of the statute"; this is dictum, because CUOZ7,0 did

not serve) ; Ballester Pans v. United States, 220 F.2d 399 (C.A. 1,

1955), cert. den. 350 U.S. 830 (section 315 constitutes "an absolute

bar to citizenship") ; Brunner v. Del Guercio, 259 F.2d 583 (C.A. 9,

1958) (Swiss national; no final decision) ; Brownell v. Rasmussen,

235 F.2d 527 (C.A. D.C., 1956), cert. dismissed 355 U.S. 859 ("and

our decision in Machado v. McGrath, supra, also makes it clear that

appellee's action in offering himself for induction while the war was

still going on does not overcome the effect of his earlier application

for relief") ; Kahook v. Johnson, 273 F.2d 413 (CA. 5, 1960) ("He

enjoyed his deferment for seven months"; "The statute inexorably

attached the disqualification"; "The bar which is imposed by the

statute cannot be raised by the courts") ; Mannerfrid v. United

States, 200 F.2d 730 (C.A. 2, 1952), cart .den. 345 U.S. 918; Petition

for Coronado, 132 F. Supp. 419; Petition of Miranda, 111 F. Supp.

481 (D.C. N.Y., 1953) ; Petition of Mauderli, 122 F. Supp. 241

(D.C. Fla., 1954) ; Petition of Bergin, 173 F. Supp. 883 (D.C. N.J.,

1959) (curl quoted Fe/Zesufl with approval and distinguished it

from Bergin); Petition of Burky, 161 F. Supp. 736 (D.C. N.Y.,

1958) (Swiss national) ; United States ex rel. Rosio v. Shaughnessy,

134 F. Supp. 217 (D.C. N.Y., 1955) (exclusion case; alien found

excludable under section 212(a) (22), 8 U.S.C. 1182(a) (22), as

"alien ineligible to citizenship"); Petition of Carvajal, 154 F. Supp.

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626 (D.C. Cal., 1957) ; SchAnded, v. Landon, 133 F. Supp. 305 (D.C.

Mass., 1955).

Regarding respondent's Swiss court-martial, a similar contention

was made in Petition of Fleischmann, 141 F. Supp. 292 (D.C. N.Y.,

1956). A citizen of Switzerland signed a Form 301 on August 2,

1942, and later petitioned for naturalization alleging "duress." The

duress, said the court, consisted of the fact that petitioner, like all

Swiss citizens under 40 years of age, was subject to court martial

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or imprisonment under the Swiss Federal Military Penal Code providing for imprisonment for a Swiss citizen entering foreign military service without the permission of the "Federal Council." The

court ruled that Moser did not apply and held that even if this

constituted duress, there was no reason why it should relieve him

of the burden of having chosen exemption. The petition was denied. Fleischmann did not serve at any time, of course, as did

respondent.

Respondent was "effectively relieved" from military service for a

period of two years. This is not a case where he was relieved from

service until a period of active military hostilities had ceased. However, the alien delayed his induction.until he had made up his mind

that it was his intention to remain in the United States permanently,

and until it was convenient for him to serve. As the court stated in

Cerati, nothing in the statute "would indicate that the Congress

intended that an exempted alien may regain his eligibility for citizenship by service in the armed forces at such time as he sees fit.

. . . The facts in this case show that petitioner deliberately and

consciously elected to take the step which shut the door to future

citizenship."

Respondent did not serve at a time chosen by his draft board, as

did Hoellger, but at a time chosen by himself. He is not a combat

veteran, as was Felleson, who served within the time indicated by

Congress in Public Law 86.

Certainly, this discussion indicates that there is authority on both

sides. It is the view of this Board that, because Congress did not

extend the benefits of the Act of June 30, 1953 (Public Law 86, 83d

Cong., 1st Sess.) to persons serving in the armed forces after July 1,

1055, Congress did not intend that military service during peacetime, following an application for exemption from military duty,

would make the applicant eligible for naturalization. Being ineligible for citizenship, respondent is mandatorily excludable. There

is no good reason to deport respondent, who has served honorably

in the armed forces of two countries, and who now has a family in

this country. He should be allowed the privilege of voluntary

departure.

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654377-63-9

Order: It is ordered that the respondent's motion for reconsideration and reopening be denied.

It is further ordered that the order of the special inquiry officer

of October 13, 1959, be and is hereby withdrawn.

It is further ordered that the alien be permitted to depart from

the United States voluntarily without expense to the Government,

to any country of his choice, within such period of time, and under

such conditions as the officer-in-charge of the district deems appropriate.

It is further ordered that if the alien does not depart from the

United States in accordance with the foregoing, the ,order of deportation be reinstated and executed.

BEFORE THE BOARD

(October 13, 1960)

DISCUSSION: On August 22, 1960, this Board denied respondent's motion to withdraw the order of deportation and for a reopening. In denying that motion we reviewed the applicable laws

and judicial authorities. We concluded that respondent is not

eligible for naturalization, according to the weight of authority,

and we are bound by the demonstrated Congressional intent. He

was, therefore, deportable at time of entry. We indicated, however,

that there are court decisions on both sides, that respondent has

served honorably in the armed forces of two countries, and now

has a family in the United States. We withdrew the order of deportation arid granted him voluntary departure.

Counsel states that a private bill was introduced in Congress in

respondent's behalf on August 23, 1960, which, if enacted, will

terminate proceedings and permit respondent to proceed toward

naturalization. Counsel requests that the present proceedings be

terminated for the limited purpose of permitting respondent to file

his petition for naturalization in the United States District Court

at Detroit, Michigan, and to have such petition heard and finally

determined by the Court, citing Matter of B—, 6-713 (1955). and

Matter of T—, 7-201 (1956).

The Board has the authority to take the action requested by counsel,-but the authority has been sparingly exercised in accordance

with the Attorney General's decision in Matter of B—, supra (Dec.

7, 1955). Counsel desires adjudication by the United States courts

of the order of deportation and the Board's order, but it is uncoos

sary to terminate proceedings to obtain this review. An action may

be instituted pursuant to section 10 of the Administrative Procedure

Act, 60 Stat. 213, 5 U.S.C. 1009, and the general jurisdictional provision of the Immigration and Nationality Act of 1952, 66 Stat. 230,

8 U.U.C. 1329. See Geballos v. Shaughnessy, 352 U.S. 599 (1957),

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footnote 1; SchZeich v. Butterfield, 252 F.24 191 (C.A. 6, 1058), oort.

den. 358 U.S. 814.

Section 10 of the Administrative Procedure Act, 5 U.S.C. 1009 (d),

provides that, to the extent necessary to prevent irreparable injury,

the "reviewing court . . . is authorized to issue all necessary and

appropriate process to postpone the effective date of any agency

action or to preserve status or rights pending conclusion of the review proceedings."

It is clear that respondent may repair to the courts for judicial

review, as the record now stands, even though the route is not yet

clear for a petition for naturalization. Under the circumstances, the

Board will deny the pending motion.

ORDER: It is ordered that respondent's motion for termination

of these proceedings for the limited purpose set forth above be and

is hereby denied.

It i8 further ordered that the request of the Immigration and

Naturalization Service to be represented at oral argument of this,

motion be and is hereby denied.

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