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deportation as one not in pursuance of law." This Board has held similarly on numerous occasions. See WJ. J- R, A-3844720 decided April 29, 1949. The courts have supported this position, and in the case of U. S. ex rel. Steffner v. Carmichael, 183 F. (2d) 19, June 21, 1950 (C. C. A. 5), the court said:
Where an alien has been deported from the United States pursuant to a warrant of deportation, we do not think it permissible to allow a collateral attack on the previous deportation order in a subsequent deportation proceeding unless we are convinced there was a gross miscarriage of justice in the former proceeding.
We believe the principal problem in this case is one pertaining to possible discretionary action predicated upon the alien's long residence in the United States and the hardship to obtain to the six United States born children in the event the subject parent should be deported. The appellant alleged that he was first married in 1928 and his wife died in 1943, and he further alleged that during that year he remarried and the second wife died in 1946. There is some question as to these allegations as hereinafter explained. The alien asserts that he is the father of six children born in this country, all of whom are citizens of the United States, their ages ranging from 12 to 20 years, but these children were apparently born out of wedlock, as hereinafter explained. It is said that not only these children are dependent upon the subject but he also maintains his sister and her offspring.
The criminal offenses herein set forth were committed in 1935 and 1938. On our previous consideration of this case on June 18, 1948, we pointed out that the six native-born children hereinabove referred to were the offspring of a common-law relationship of the alien with one L I———————— R———————, a citizen of this country. The record indicates that she died in 1943 and the custody of the said children was awarded by the juvenile court in Chicago, Ill., to the appellant's sister-in-law. The sister-in-law previously stated that she received $76 every 15 days from the Office of Dependent Children, Cook County, Ill., for the support of the said children and that the appellant contributed very little to their support, subsequent to his discharge from the Army.
Despite the fact that the alien has resided in the United States for an aggregate of almost 25 years and the fact that the criminal offenses herein set forth occurred many years ago, the record pertaining to this alien's case, which record must be considered in its entirety-since the question before us is now one of discretionary relief-including all of the representations of counsel, leads us to the conclusion that this alien does not sufficiently establish that his case is one wherein other than dismissal of the appeal is warranted.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner of Immigration and Naturalization, Adjudications Division, be and the same is hereby dismissed.
IN THE MATTER OF C———
In DEPORTATION Proceedings
Decided by Board September 26, 1950
Decided by Acting Attorney General December 20, 1950
Decided by Board February 1, 1951
"Neutral alien," claiming exemption from service in United States armed forces-Ineligibility for United States citizenship—Section 3 (a) of the Selective Training and Service Act of 1940, as amended-Effect of volunteering for induction thereafter.
A "neutral alien," who last entered the United States as a stowaway on October 24, 1938, with intent to reside here permanently, and who claimed exemption from service in United States armed forces as a "neutral alien” by filing DSS Form 301 on May 6, 1942, rendered himself ineligible to citizenship thereafter under the provisions of section 3 (a) of the Selective Training and Service Act of 1940, as amended, it being clear that he had full knowledge of the attendant consequences for filing such a claim. (See Moser v. U. S. of A., 341 U. S. 41, 71 S. Ct. 553.) He was bound by his elective act and his subsequent withdrawal of such claim and application for voluntary induction did not remove the basis for his ineligibility to citizenshp. (McGrath v. Kristensen, 340 U. S. 162, held not applicable.)
Warrant: Act of 1924-No visa.
BEFORE THE BOARD
(September 26, 1950)
Discussion: This is a motion to reconsider an order directing the respondent's deportation to Portugal on the warrant charge stated above. Oral argument on the motion was granted July 25, 1950. Relief is sought under the provisions of section 19 (c) of the Immigration Act of 1917, as amended by Public Law 863 of the 80th Congress.
Respondent, a native and citizen of Portugal, 42 years of age, arrived in the United States on October 29, 1938, as a stowaway. Respondent filed a DSS Form 301 on May 6, 1942, and secured exemption from
military service under the Selective Training and Service Act of 1940 as a national of a neutral country. During April of 1944 respondent sought to withdraw this claim for exemption and to volunteer for military service. Upon receiving a physical examination for induction, he was rejected. He married a native of Puerto Rico, a citizen of the United States, in 1945. The record establishes that the respondent's wife is unemployed and solely dependent upon him for support.
No issue is raised as to the respondent's deportability. The only question before us is whether the respondent can legally adjust his immigration status. Counsel in requesting reconsideration contends that when respondent volunteered for induction he was thereafter no longer ineligible for citizenship notwithstanding that he subsequently was rejected for military service by the armed forces. We find no merit to counsel's contention.
It has been held that an attempt to withdraw DSS Form 301 filed under section 3 (a) of the Selective Training and Service Act of 1940, as amended, short of actual service in the armed forces, leaves the neutral alien ineligible to naturalization. Matter of 0. A-1141799 (April 29, 1946); Matter of B—— N————, A-3180834 (September 13, 1949). An alien ineligible for citizenship cannot be granted suspension of deportation under the provisions of section 19 (c) of the Immigration Act of 1917, as amended. Matter of GA-3591839 (July 12, 1946).
Respondent elected in May of 1942 not to serve in the armed forces of the United States. His wish was respected by the Selective Service officials. He was accorded the exemption provided by section 3 (a) of the Selective Training and Service Act. Although he applied for voluntary induction in April of 1944, we must hold that he is bound by his election in May 1942 and that he is barred from the relief he seeks. Matter of J- A-4558054, 2, I. & N. Dec. 545 (A. G. A-5113737, 2, I. & N. Dec. 899
June 9, 1947); Matter of W (October 14, 1947).
The respondent was 35 years of age when he executed the application for relief from military service as a neutral alien. He has resided in this country intermittently for a total of 11 years. He should have had sufficient intelligence and knowledge to know or inform himself of his various responsibilities and obligations under the law. Under the circumstances, we find no merit in the arguments advanced by counsel. Cf. In re Martinez, 73 F. Supp. 101 (D. C. W. D. Pa., July 23, 1947). The motion will be denied.
Order: It is ordered that the motion be and the same is hereby denied.
CERTIFICATION TO ATTORNEY GENERAL
(November 13, 1950)
In accordance with the provisions of section 90.12 (a) of title 8, Code of Federal Regulations, the decision and order of the Board dated September 26, 1950, are hereby certified to the Attorney General for review.
BEFORE THE ACTING ATTORNEY GENERAL
(December 20, 1950)
The question involved is whether the above-named alien, a native and citizen of Portugal, a neutral country, can legally adjust his immigration status after having claimed exemption from United States military service during World War II.
The applicable provision of the Selective Training and Service Act (50 U. S. C. App. 303 (a)) reads as follows:
Provided, 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 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: * *
The applicable provision of the Immigration Act of May 26, 1924, as amended October 29, 1945 (8 U. S. C. 224 (c)), reads as follows:
The term "ineligible to citizenship," when used in reference to any individual, includes an individual who is debarred from becoming a citizen of the United States under sections 703 and 706 of this title, or section 303 (a) of appendix to Title 50, or under any law amendatory of, supplementary to, or in substitution for, any such sections.
The Immigration Act of February 5, 1917, as amended and supplemented (8 U. S. C. 155 (c) (2)), provides that the Attorney General may suspend deportation of certain aliens if they are "not racially inadmissible or ineligible to naturalization in the United States [Italics supplied.]
Mr. C last entered the United States on October 24, 1938, as a stowaway with intent to reside here permanently but without an immigration visa. He is, therefore, subject to deportation.
On October 16, 1940, Mr. C registered for Selective Service. On May 6, 1942, he claimed exemption from military service as a national of a neutral country. On March 12, 1943, a warrant for his arrest in deportation proceedings was issued under the Immigration Act of 1924-No visa. On January 17, 1944, Mr. C——— was granted a hearing on the warrant in deportation proceedings. The findings of
the presiding inspector, at this hearing, recommending deportation, at Government expense, were served on Mr. C's representative on April 21, 1944. Mr. C filed a withdrawal of his claim for exemption from military service, April 30, 1944, and applied for voluntary induction. He was examined and found physically disqualified on June 5, 1944.
Mr. C————, on May 11, 1945, married a native-born citizen of the United States. No children have been born to this marriage.
The Board of Immigration Appeals has heard oral argument, at Mr. C's request, on three occasions and, in order, has affirmed the deportation, dismissed an appeal of the denial to reopen, and denied a motion to reconsider the deportation order.
The alien, through counsel, on November 11, 1950, filed a petition with the Attorney General requesting the relief denied him by the Immigration and Naturalization Service and by the Board of Immigration Appeals. The petitioner contends that he had an elderly mother in Portugal who was financially dependent upon him and that he knew of no way she could get help if he were inducted into the Army. While this may be an appealing factor it is not determinative of the rights and equities in the matter. Many American boys, as well as some from other lands, who responded to the call to colors did so with considerable financial sacrifice and much concern for the welfare of their dependents at home. Nevertheless, they served the country when needed despite personal and domestic hardships.
The petitioner further contends that he lacked advice of any kind which would enlighten him as to the consequences of his executing and filing DSS Form 301. This contention is not borne out by the record which reflects that the petitioner at his original hearing on the warrant in deportation proceedings testified as follows:
Q. Did you know that by filing that request for relief from military service, you could never become a citizen of the United States?
Q. Who told you that by filing that form you could never become a citizen of the United States?
A. The clerk at the local board.
At his reopened hearing, May 5, 1945, ordered to discover, among other things, whether Mr. C fully understood the consequences of his request for exemption from military service, he testified as follows:
Q. Did you file that form with the intention or hope of evading military service?
A. I did not intend to evade military service. I was misled.
Q. You did know, however, that you would be forever ineligible to United States citizenship by filing DSS Form 301. Did you not?
A. Yes. I was told so at the local board.