Matter of B-

Cite as 5 I&N Dec. 625

IN THE MATTER OF B

In PREEXAMINATION Proceedings A-7563659

Decided by the Board January 15, 1954

Ineligible to citizenship-Excludability under section 212 (a) (22) of the Immigration and Nationality Act where citizen of Switzerland claimed exemption from United States military service. A citizen of Switzerland who obtained exemption from United States military service based on advice by the Swiss Legation that he would not thereby waive his right to apply for American citizenship is not ineligible to citizenship as defined in section 101 ( a) (19 ) of the Immigration and Nationality Act (Moser v. United States, 341 U. S. 41 (1951) and Matter of Mand G , Int. Dec. No. 429, B. I. A. 1953 ) . Such individual is, therefore, not excludable from the United States under section 212 ( a) (22) of the act. EXCLUDABLE : Act of 1952, section 313 (a) (2) -Ineligible for citizenship.

BEFORE THE BOARD

Discussion : This case is before us on appeal from a decision of a special inquiry officer dated April 23, 1953, excluding appellant as an alien ineligible to citizenship (sec. 212 (a) (22) , act of 1952) . Appellant, a 40-year-old native of Italy and citizen of Switzerland, first entered the United States at New York June 9, 1941, as a temporary visitor. His last entry occurred at New Orleans, La., on May 26, 1951 ; on that occasion, appellant was admitted as a treaty trader and has maintained this status since that time. On February 12, 1953, appellant was granted preexamination and afforded a hearing at Memphis, Tenn., on April 23, 1953. His present exclusion was the result of this preexamination proceeding. On May 3, 1943, appellant executed Selective Service DSS form 301 at New York and obtained relief from military service as a neutral Swiss alien. In this connection, appellant has submitted a letter from the Swiss Legation, dated April 30, 1943, which caused him to file the above-mentioned DSS form 301. This letter read as follows : In reply to your letter of April 29 please be advised that, in accordance with the provisions of Article II of the Treaty of Friendship, Commerce and Ex- tradition, concluded between the United States and Switzerland on November 25, 1850, this legation has requested the Department of State on August 20, 1942, to exempt you from the liability of personal military service with the United States Armed Forces.

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We are forwarding to you, enclosed, two copies of DSS form 301, as amended, which kindly execute and file with your local board. This action on your part is necessary in order to complete the exemption procedure ; your local board, in accordance with Selective Service Regulations, as amended, will then classify you in class IV-C. Please note that, through filing of DSS form 301, as amended, you will not waive your right to apply for American citizenship papers. The final decision regarding your naturalization will remain solely with the competent naturalization courts .

Appellant stated that he has been employed by the Swiss Aluminum Co. , Jackson, Tenn., in an engineering capacity since 1936 and that he came to the United States in 1941 for a period of 9 months to assist on the development of a proposed aluminum plant for the Dutch East Indies, prior to his departure for that country. However, the outbreak of the Pacific war late in 1941 canceled any departure plans for the Far East. Upon the declaration of war, appellant said that he promptly registered for Selective Service and was classified IV-A, until August 18, 1942, when his classification was changed to I-A. Appellant stated that originally he refused to sign a DSS form 301, because he was glad to serve in our military forces and was unwilling to forfeit a possible opportunity to become a United States citizen. However, the Swiss Legation distributed a release at this time which stated : There exists now the possibility that such exemption can be obtained by compatriots who qualify, without the necessity of forfeiting the right thereafter to become an American citizen, if their request is based on article II of the Treaty of Friendship, Commerce and Extradition, between the United States and Switzerland of November 25, 1850. Such a petition, however, can only be submitted by the legation on behalf of the nondeclarant Swiss registrant.

At that time, appellant stated that he had been recalled to Switzerland by his firm and wished to obtain clearance from his draft board in order to expedite his departure and possible future return. In this connection, the Legation sought an exemption from military service for appellant from the State Department on the basis of article II of the Treaty of Friendship with Switzerland. However, appellant's application for an exit permit was then denied and the Swiss Legation then sought to have appellant's draft deferment extended from October 1, 1942. At this time, the local draft board informed appellant that he did not need further deferment after October 1, for he was not then acceptable for military service, with no ground being listed. In Moser v. United States, 341 U. S. 41 ( 1951) , Moser was a Swiss alien who first arrived in this country in 1937. In 1940, he registered for the draft and was classified III-A ( alien with dependents-a citizen wife and later four citizen children) . In 1944, upon being classified I-A, the Swiss Legation sought a deferment under the treaty of 1850. The legation then directed Moser to file DSS form

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301. The Supreme Court held that the treaty and the act were not in conflict, and stated : Petitioner had sought information and guidance from the highest authority to which he could turn, and was advised to sign revised form 301. He was led to believe that he would not thereby lose his rights to citizenship. If he had known otherwise he would not have claimed exemption. In justifiable reliance on this advice he signed the papers sent to him by the legation. ( Cf., Mannerfrid v. United States, 200 F. 2d 730 ( C. A. 2, 1952. ) ) While the Moser case was decided under section 28 (c) of the prior act of 1924, counsel contended that the legislative history of the act of 1952 illustrated that Congress intended to continue the Moser doctrine through the enactment of sections 212 (a) (22) and 101 (a) ( 19) .2 Recently, the Board stated in Matter of M— and G , A-2202545, 6, Int. Dec. No. 429 (B. I. A., 1953) that the definition of " ineligible to citizenship" in the act of 1952 : * * substantially reenacted the language of section 28 ( c) of the Immigra- tionAct of 1924, with the addition of the words "notwithstanding the provisions of any treaty relating to military service." As stated in the Moser case (supra) , the conclusion that the petitioner was not ineligible to citizenship was based upon the fact that he did not knowingly and intentionally waive his right to citizenship because under the misleading circumstances of the case, he never had an opportunity to make an intelligent election between the opposed courses required as a matter of strict law. It is readily apparent that the exemption from military service obtained by these applicants was not merely upon the basis of the provisions of any treaty relating to military service, but was based solely upon a misapprehension predicated upon justifiable reliance upon advice given them by the Swiss Legation.

The instant case closely parallels Moser v. United States and Matter of M and G-, for appellant placed justifiable reliance on the advice of the Swiss Legation. Appellant also did not have an opportunity to make an intelligent election between military service and a waiver of his right to seek naturalization, for he was laboring under amisapprehension about the course open to him in 1943. Therefore, the ground of exclusion is not sustained. Petition of Berini, 112 F. Supp. 837 (E. D. N. Y., 1953) . The appeal is accordingly sustained. Appellantmarried a United States citizen on June 24, 1944, and they have four citizen children. Appellant's wife has applied for a visa petition in behalf of appellant and it has been approved by the Immigration Service. In addition, the American consul at Montreal, Province of Quebec, Canada, has found appellant's documents satisfactory and is prepared to issue a visa to him upon notification of favorable action in the present preexamination proceedings. ¹See, appendix A. See, appendix B. The court cited Matter of M and G- with approval. * See, appendix C.

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Order: It is hereby ordered that the appeal be sustained and the alien's reentry upon obtaining the required immigrant visa is authorized. APPENDIX A

The Supreme Court stated in Moser v. United States, as follows: The treaty of 1850 with Switzerland was in full force in 1940 when the Selective Training and Service Act was passed. Standing alone, the treaty provided for exemption of Swiss citizens from military service of the United States, and if that were all, petitioner would have been entitled to unqualified exemption. Section 3 ( a) of the act, while recognizing the immunity of citizens of neutral countries from service in our Armed Forces, imposed the condition that neutral aliens residing here who claimed such immunity would be debarred from citizenship. That the statute unquestionably imposed a condition on exemption not found in the treaty does not mean they are inconsistent. Not doubting that a treaty may be modified by a subsequent act of Congress, it is not necessary to invoke such authority here, for we find in this congressionally imposed limitation on citizenship nothing inconsistent with the purposes and subject matter of the treaty. The treaty makes no provision respecting citizenship. On the contrary, it expressly provides that the privileges guaranteed by each country to resident citizens of the other "shall not extend to the exercise of political rights." The qualifications for and limitations on the acquisition of United States citizenship are a political matter which the treaty did not presume to cover.

APPENDIX B

The following excerpts from counsel's brief are pertinent : From Senate Report 1515, 81st Congress, 2d session, page 725, counsel contends that- Congress thereby made clear that its purpose was purely and simply one of codification, i. e., that the Selective Service Act " * * * provisions be incorporated in the proposed bill so that all requirements for naturalization may be found in one act."

Perhaps the most determinative aspect of the 1952 act's legislative history, however, is the fact that the original draft of both subsections (a) and (b) of section 315, as it came into being prior to the decision of the Supreme Court in the Moser case contains substantially the same language as that of the act as passed. * * * * *

Moreover, it is significant that none of the later, condensed reports in either the House of Representatives or in the Senate, relating to any of the bills involved at any time discussed either the decision of the Supreme Court in the Moser case or the problem there at issue. * * * This omission is all the more significant, in view of the detail with which such reports discuss specifically the judicial decisions which the legislation was intended to overrule (p. 20, S. Rept. 1137, 82d Cong., 2d sess., pp. 4, 44; H. Rept. 1365, 82d Cong., 2d sess., pp. 27, 28, 32, 82 ; H. Rept. 2096, 82d Cong., 2d sess. ) . * * * * * * *

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There have been only two (changes in the drafts of the bills subsequent to the date of the Moser decision) , each quite explicable. First, elimination from each subsection of the word "solely. " This word was originally inserted in a too faithful adherence to the recommendation of Senate Report 1515, above quoted. Had "solely" been allowed to remain, it would have permitted an alien to avoid debarring himself from citizenship by the simple expedient of coupling with his claim of exemption on the ground of alienage an additional claim of exemption on some other ground, e. g. dependency or physical unfitness. Though his claims of dependency, physical unfitness, etc., might be denied and his deferment granted "solely" on the ground of alienage, he would nevertheless not qualify as an "alien who * * * has applied for exemption * * * solely on the ground that he is an alien." Second, prefixing to subsection (a) the qualification, "Notwithstanding the provisions of section 405 (b) , * * *." This qualification was obviously essential under any circumstances. Section 405 (b) provides that any petition for naturalization which might be pending at the effective date of the 1952 act must be heard and determined "in accordance with the requirements of law in effect when such petition was filed." Accordingly had the qualifying language not been prefixed to section 315 (subpar. a) , an alien who had filed a petition for naturalization in 1939, and deliberately claimed exemption from military service under either the 1940 or 1948 act, would have been entitled to favorable action upon his citizenship petition, despite the provisions of section 315 (a) and of the 1940 and 1948 acts (pp. 21, 22) . APPENDIX C

On November 12, 1952, the Visa Division of the State Department sent the following letter to respondent : Reference is made to your letter of October 22, 1952, addressed to the American consulate general at Montreal, Canada, a copy of which was transmitted to the Department together with photostatic copies of documents in support of your claim that an immigration visa could be issued to you notwithstanding the fact that you obtained exemption from military service in the United States Armed Forces during World War II by filing with your local draft board revised DSS form 301 in May 1943. An examination of the information available including the documentary evidence submitted by you indicates your case to be embraced within the decision of the United States Supreme Court in the case of Paul Moser v. United States of America which was rendered on April 9, 1951. In the circumstances, it is not considered that your filing of revised DSS form 301 would operate to render you ineligible to receive an immigration visa. As you intend to apply for an immigration visa at the American consulate general at Montreal, an appropriate instruction is being addressed to that office for its guidance in considering your case.

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