Matter of R---- E----
| Decision Date | 18 June 1962 |
| Docket Number | A-11987584. |
| Parties | MATTER OF R---- E----. In EXCLUSION Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) A Mexican national was classified as available for military service by his local draft board; sought advice from, and was informed by, the Mexican Consulate that he did not have to serve; was advised by the Consulate to file DSS Form 301 which was filled out at the Consulate and filed by him with the local draft board. He did not read the contents of DSS Form 301, nor were the consequences thereof made known to him. Held: The alien was unaware that he would become ineligible to citizenship by signing the DSS Form 301, and did not, therefore, knowingly and intentionally waive his rights to citizenship within the doctrine of Moser v. United States, 341 U.S. 41.
(2) Attorney General's decision states: "In any event, I do not understand the Board's decision to establish a rule of proof for other cases, nor does this decision affirming it do so."
The applicant is a 52-year-old married male, native and citizen of Mexico, who was admitted to the United States for permanent residence on March 31, 1960. On August 6, 1960, after an absence of a few hours in Mexico, he applied for admission as a returning resident and was excluded by a special inquiry officer on the ground stated above. He had previously resided in the United States from about 1922 until about November 1942. On May 25, 1942, he executed DSS Form 301, and the local draft board exempted him from service by reason of alienage and classified him as IV-C on May 27, 1942. He was reclassified as I-A on August 4, 1943.
In our previous order, we stated that it was unnecessary to discuss certain contentions of counsel in view of our conclusion. Since two of counsel's contentions would require a ruling before we could grant the request of the Service that the appeal be dismissed, these contentions will be discussed later herein. However, the principal issue in this case is whether the applicant is ineligible to citizenship under section 315 of the Immigration and Nationality Act of 1952 (8 U.S.C. 1426).
We have carefully reviewed the entire record. In our previous order, we summarized the applicant's testimony concerning the circumstances surrounding the execution of the application for exemption from military service. He testified that, upon receiving a notice to appear for a medical examination, he went to the Mexican Consulate for advice and was informed that he was not obligated to serve in the Armed Forces of the United States and that he should obtain DSS Form 301 from his draft board. He obtained the Form and took it to the Mexican Consulate where it was filled out and he then signed the Form before an employee of the draft board. He was positive in his testimony that he did not read the Form; that no one at the Mexican Consulate or at the draft board informed him that the signing of the application would bar him from becoming a citizen of the United States; and that no statement whatever was made to him that this application would have any effect upon his eligibility for citizenship. He testified that he would not have signed the Form if he had known that such action would bar him from becoming a citizen.
It was stated in our previous order that the applicant would be ineligible to citizenship under 8 U.S.C. 1426 unless his case was within the rule stated in Moser v. United States, 341 U.S. 41 (1951), and we reached the conclusion that the case was within the rationale of that decision. In its motion, the Service seeks to distinguish the applicant's case from that of Moser by saying, "Moser went to his consulate and was specifically told that he would not become ineligible upon signing. "This is not correct. The one statement along that line which the Swiss Legation made to Moser in its letter of February 18, 1944, was:
The Service cited Kahook v. Johnson, 273 F.2d 413 (C.A. 5, 1960), which will be discussed later, and four district court decisions. It was stated that these decisions plainly indicate that the applicant's case is distinguishable from Moser and that "the great weight of legal authority in this area has not been followed by the decision of the Board." Actually, whatever legal question formerly existed was authoritatively answered by the Supreme Court's decision in the Moser case. Since that time, the inquiry is whether or not the facts of the particular case bring it within the Moser rule. The four district court decisions cited by the Service are Petition of Miranda, 111 F.Supp. 481 (E.D.N.Y., 1953); In re Pinto's Naturalization, 152 F.Supp. 892 (S.D.N.Y.,1957); In re Calvo's Petition, 161 F.Supp. 761 (D.C.N.J.1958); and Petition for Naturalization of Rodrigues, 193 F.Supp. 150 (N.D.Cal., 1961). In each of these, it was held that the alien was not within the rule set forth in the Moser case and that he was ineligible to citizenship. A decision to the same effect is Keil v. United States, 291 F.2d 268 (C.A. 9, 1961). A contrary conclusion to the effect that the alien was within the Moser rule was reached in each of the following cases: Machado v. McGrath, 193 F.2d 706 (C.A.D.C., 1951), cert. den. 342 U.S. 948; Petition of Berini, 112 F.Supp. 837 (E.D.N.Y., 1953); Petition of Sally, 151 F.Supp. 888 (S.D.N.Y., 1957); In re Planas, 152 F.Supp. 456 (D.C.N.J., 1957); and In re Bouchage's Petition, 177 F.Supp. 887, 897 (S.D.N.Y., 1959). Machado v. McGrath, supra, which was decided a few months after Moser, differs factually in some respects from the applicant's case, but it shows that the Moser rule is not limited to precisely identical factual situations. We believe it is clear from the foregoing that no legal question is involved in this applicant's case. Instead, there is only the question of whether, under the facts of his case, he does or does not come within the legal rule enunciated in the Moser case. If he is within that rule, then the DSS Form 301 filed on May 25, 1942, does not bar him from citizenship.
In Moser v. United States, supra, at page 47, the court said: In three of the cases in which the courts held that the aliens were ineligible to citizenship (the Pinto and Rodrigues cases, cited by the Service, and the Keil case), the courts made statements, nevertheless, to the effect that the Moser rule requires that the alien, when executing the application for exemption, must knowingly and intelligently waive his right to citizenship in order to be barred from naturalization.
In its motion, the Service quoted from the decision in Kahook v. Johnson, supra, and a part of the quotation is as follows: "So long as it is not disputed on the record that he knew the effect of the request, that is, that he would acquire an exemption from military duty, it is not necessary that he also know that by obtaining such exemption he was thereafter subjecting himself to the disabilities such action entailed." We understand that the Service asserts that the Kahook decision holds that, if an alien knows that he will secure exemption from military service by executing DSS Form 301, it is unnecessary that he must also know that he will be ineligible to citizenship if he executes the Form. That, of course, appears to be the tenor of the statement we have quoted. However, the Service indicated that it was not relying on this principle. This statement in the Kahook decision was dictum. In any event, it does not correctly state the law since it is contrary to the Supreme Court's decision in the Moser case. The Kahook decision does not mention the Moser case, although it is probable that Kahook was attempting to bring himself within that rule.
Kahook contended that he was unable to secure the production of certain documents in possession of the Immigration authorities which would have disclosed that he could not read, write or speak English when he executed the DSS Form 301. The quotation by the Service from the Kahook decision includes language to the effect that, notwithstanding his inability to read or speak English, it did not follow that Kahook did not voluntarily and intelligently sign DSS Form 301. In other words, there was no testimony or evidence on the part of Kahook that he did not understand the effect and purpose of the DSS Form 301 when he signed it and, even if he could not read or speak English, this would not exclude the possibility that the matter might have been explained to him at the time and that he might have been aware of the result which would follow from the execution of the DSS Form 301.
The Service stated that this applicant attended public schools at Nogales, Arizona, from 1922 to 1927 through the seventh grade, and that only English was taught in these schools. It is not...
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