Matter of R-

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IN THE MATTER OF R

In EXCLUSION Proceedings

A-8169797

Decided by Board May 12, 1954 Ineligible to citizenship-Section 315 (a) of the Immigration and Nationality Act-Applied for and received relief from training and service in the Armed Forces of the United States-Excludability under section 212 (a)

(22) of the act.

A lawful permanent resident of the United States who applied for and received relief from training and service in the Armed Forces of the United States under the Universal Military Training and Service Act of 1951 (50 U. S. C. A. Appendix 454 ( a) ) is ineligible to citizenship under section 315 (a) of the Immigration and Nationality Act and is excludable from the United States under section 212 (a) (22) of that act even though he was not entitled under the law to apply for and receive such exemption from military training and service. ( Matter of D , A-3203582, 5, I. & N. Dec. 301, adhered to. Position supported by decision U. S. D. C. for Southern District of New York, Petition of S , No. 614454, 10-21- 53.) EXCLUDABLE :

Section 212 ( a) ( 22) -Immigration and Nationality Act-( Ineligible to citizenship-Applied for and received relief from training and service in the Armed Forces of the United States) .

BEFORE THE BOARD

Discussion : This case is before us on appeal from the special inquiry officer's decision of March 29, 1954, ordering that the appellant be excluded from admission to the United States on the above-stated ground. The request here is that the order of the special inquiry officer be reversed. The subject is a 25-year-old single male alien, a native and citizen of France, who was lawfully admitted to the United States for permanent residence on December 9, 1951. Thereafter, he registered for military service and, on August 7, 1952, was placed in class IV-C, this status to continue to December 10, 1952. On January 8, 1953, he was notified that he had been placed in class I-A. On January 15, 1953, he executed and filed with his local draft board Form SSS 130, "Application By Alien For Relief From Training and Service In The Armed Forces." The following

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day, January 16, 1953, he was granted relied from training and service and placed in class IV-C. Shortly thereafter he applied for and was issued, on March 27, 1953, a permit to reenter the United States valid to March 27, 1954. He presented such document at the time he applied for readmission at New York on March 20, 1954, but was then excluded for the reason stated above. The sole issue we are called upon to determine in this case is the effect of the alien's application for, and the subsequent granting by Slective Service authorities of, exemption from military training and service. It is urged that at the time the subject executed form SSS 130, he was a permanent resident alien and as such not eligible under the law to apply for or receive exemption from training or service. It is argued that, therefore, the filing of the form and the granting of the exemption are a nullity, i.e., without legal effect. Support for the foregoing argument has been sought in the decision of the United States District Court for the Eastern District of Michigan, Southern Division, in the Petition of Ajlouny (77 F. Supp. 327 (1948 ) ) . In that case, the alien, a native and citizen of Palestine, made a claim for exemption from military service as a neutral alien under the provisions of section 3 (a) of the Selective Training and Service Act of 1940, 50 U.S.C.A., Appendix, section 303 (a) , by executing the appropriate selective service form, known as Form 301, in which he applied as a neutral alien for relief from liability from military service and he was given the classification which recognized such a status. The basis for the exemption applied for and granted was set forth in 50 U.S.C.A., Appendix, section 303 ( a) : That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by * * * the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States .

At the time involved in the Ajlouny case, the Selective Service Director had listed Palestine as a neutral country. The court therein pointed out that the action of the Director of Selective Service in listing it as such did not make it so and found that, in fact, Palestine was not a neutral country. The court then held : "It follows, therefore, that the petitioner's claim for exemption as a citizen of a neutral country was a nullity and without legal effect, since he was not in fact a citizen of such a country and the section could have no application in his case." That is the ruling we are requested to apply to the facts of this case. The provisions of the Universal Military Training and Service

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Act of 1951 govern this case. The section thereof here pertinent [50 U.S.C.A., Appendix, sec. 454 (a) ] reads as follows : *** Every male alien admitted for permanent residence * * * shall be liable for training and service in the Armed Forces of the United States : *** provided further, that any male alien *** who has remained in the United States in a status other than that of a permanent resident for a period exceeding 1 year *** shall be liable for training and service in the Armed Forces of the United States, except that any such alien shall be relieved from liability for training and service under this title [said sections ] if, prior to his induction into the Armed Forces he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President; but any alien who makes such application shall thereafter be debarred from becoming a citizen of the United States. ***

Thus, it appears that the appellant was not entitled under the law to apply for or receive an exemption from military service. However, the fact remains that he did request such relief and it was granted to him. That is, the appellant applied for privileges under the law of this country and received the full benefit of ১ exemption from military service. We note that in rendering his decision, the special inquiry officer relied upon a prior decision of this Board (Matter of D , A-3203582, 5, I. & N. Dec. 301 (1953 ) ) . That case involved the same issue as was before the court in the Petition of Ajlouny, (supra) , and was subsequent thereto. In reaching that decision, we relied upon advice furnished by the Deputy Attorney General to the Acting Legal Advisor of the Department of State on March 10, 1949, to the effect that aliens situated as was the one in the case we were considering were ineligible to citizenship and, therefore, under section 13 (c) of the Immigration Act of 1924 unable to obtain immigration visas. The Deputy Attorney General's advice continued as follows : I arrive at this conclusion simply by applying to the situation the plain language of section 3 (a) of the Selective Training and Service Act of 1940. These aliens, as nationals of Palestine, asserted their Palestinian nationality and asserted the neutrality of Palestine in their applications to be relieved from liability for training and service under the Selective Training and Service Act of 1940. As the result of such assertions by the aliens, their applications for exemption from military service were granted and they were not called upon to, nor did they, render any military service to the United States. In these circumstances section 3 (a) clearly debars them from becoming citizens of the United States. I have arrived at my opinion in this matter without considering the question raised by the aliens as to whether Palestine was neutral at the times of their applications for exemptions from military service. The arm of the executive branch of the Government charged with administering the Selective Training and Service Act of 1940, namely, the Selective Service System, regarded Palestine as a neutral country for the purposes of that act. Whether that determination may be questioned by anyone outside the

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éxecutive branch of the Government it is unnecessary to decide. It is clear to me that these aliens, having themselves asserted the neutrality of Palestine, having applied for privileges under the law of this country on the basis of such assertions, and having received the full benefit of such assertions, namely, exemption from military service, are now, at a time when all obligation to serve under the Selective Training and Service Act of 1940 is long since past, in effect estopped from denying the neutrality of Palestine at the times of their respective applications. We then believed that we were bound by the decision of the Deputy Attorney General, rather than by the decision of the court in the Petition of Ajlouny. An attempt has been made to distinguish the present situation from that involved in Matter of D , (supra) , and the decision of the Deputy Attorney General. It is urged that the Deputy Attorney General based his theory of estoppel on the use of a factual situation determined for a particular act, whereas here the special inquiry officer is basing his theory of estoppel on an error of the Selective Service draft board in accepting and giving validity to the filing of SSS Form 130. Then, it is contended that the appellant has not concealed or misrepresented any fact nor has the Government relied on any untrue fact; that this is a case purely of error on the part of the draft board in interpreting the law and cannot give rise to estoppel ; and that estoppel cannot be predicated on errors of judgment by the persons asking its benefit, but must originate in a statement of fact and not an opinion or statement or statement of law.¹ We have carefully considered the arguments advanced by counsel and, those contentions to the contrary notwithstanding, we find that the decision of the special inquiry officer must be affirmed. We are of the opinion that the case is controlled by the language of section 315 of the Immigration and Nationality Act of 1952 . Subsection (a) of section 315 provides, in substance, that any alien who has applied for and been granted exemption from military training and service shall be permanently ineligible to become a citizen of the United States. Subsection (b) thereof provides substantially that Selective Service records shall be conclusive as to whether an alien was granted the exemption on the ground of alienage. 1、

The specific language of the foregoing provisions of the Immigration and Nationality Act leaves no doubt in our minds but that this appellant is inadmissible under section 212 (a) (22) thereof. The record clearly establishes that he requested exemption from military training and service on the basis of alienage and was granted relief on that ground. The evidence in this 1Counsel have furnished citations for the concepts of the doctrine of estoppel urged as applicable to this case.

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respect comes from the record of the Selective Service System. In addition, the evidence of record definitely demonstrates that he knowingly and intentionally waived his rights to citizenship and entry and, thus, made an intelligent election between diametrically opposed courses required as a matter of law to effect the forfeiture found by the special inquiry officer (Moser v. United States, 341 U. S. 41 ; 71 S. Ct. 553) .2 We note that the SSS Form 130 executed in this case appears to have been issued for use in processing claims for exemption from military service under provisions of section 4 (a) of the Selective Service Act of 1948, rather than for use under the Universal Military Training and Service Act. This is clear from the terminology of the "Notice" at the bottom of form. The pertinent provisions of the Selective Service Act of 1948 (Public Law 759, 80th Cong., ch. 625, 2d sess.) read as follows : *** Section 4 ( a) every male citizen of the United States, and every other male person residing in the United States, *** shall be liable for training and service in the Armed Forces of the United States. Any citizen of a foreign country, *** shall be relieved from liability for training and service under this Title if, prior to his induction into the Armed Forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President ; but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States. * * * It is not clear whether forms specifically adapted for use under the terms of the Universal Military Training and Service Act had been issued to the local boards at the time here in question, whether the form actually executed in this case was issued to the appellant by inadvertence on the part of the draft board employee, or whether the claimed exemption was processed by the Selective Service authority without awareness of the change in the provisions of the Selective Service laws here pertinent. Whatever the facts may have been in this respect, on the basis of the foregoing, we feel that they are immaterial to the present consideration. Finally, we feel that our conclusion in this case is buttressed by a decision handed down by the United States District Court for the Southern District of New York (Petition of Snitkofsky, No. 614454, Oct. 21, 1953) . In that case, the petitioner for naturalization was lawfully admitted for permanent residence. In 1950 he applied for and was granted exemption from military training and service on the grounds of alienage. Subsequently, he was * The opinion of the special inquiry officer adequately disposes of an off the record argument advanced by counsel at the hearing that the circumstances surrounding the execution of Form SSS 130 by the subject constituted duress sufficient to nullify the effect of his executing the form.

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inducted into the United States Armed Forces, under the provisions of the Universal Military Training and Service Act of 1951. In denying his petition, the court said : *** there is, unfortunately, no discretion residing in this court to grant his petition. Under section 315 of the Immigration and Nationality Act, 8 U. S. C. 1426, as well as under 4 ( a) of the Selective Service Act of 1948, 50 U. S. C. App. 454 (a) , he is ineligible for citizenship. The petitioner's predicament might well merit legislative intervention. But this court is powerless to aid him. On the basis of the foregoing, we conclude that this appeal must be dismissed and we will now so order. Order: It is ordered that the appeal be and the same is hereby dismissed. Editor's note : Writ of habeas corpus filed with the United States District Court for the Southern District of New York in the instant case was dismissed by that court on June 14, 1954.

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