Matter of H----

Citation9 I&N Dec. 106
Decision Date13 October 1960
Docket NumberA-8523020.
PartiesMATTER OF H----. In DEPORTATION Proceedings.
CourtU.S. DOJ Board of Immigration Appeals

DISCUSSION: On February 8, 1960, the Board dismissed re-respondent'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 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, D.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 18, 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 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 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 Counsel submits a letter dated May 19, 1960, directing respondent 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 he 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 military service on the ground of alienage is not ineligible to citizenship under section 315 nor 101(a)(19) of the Immigration and Nationality Act if he thereafter served honorably in the Armed Forces of the United States between September 1, 1939, and December 31, 1946 (during World War II thereby coming within the provisions of section 329 of the Immigration 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, 1956, 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 1956 does not relieve him from 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 S----, 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 the alien did not actually serve. We find two cases where naturalization was denied to a petitioner in the armed forces: In re Cerati, 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 Naturalization 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, on 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 "effectively relieved" ... An alien who has actually served in the Armed Forces under compulsion of the executive branch of the Government cannot be said to 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 meaning of section 315(a); and we also...

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