Pursuant to section 90.12 (c), 8 C. F. R., the case is certified to the Attorney General for review of the Board's action.

BEFORE THE ATTORNEY GENERAL

(October 2, 1952)

The decision and order of the Board of Immigration Appeals, dated October 31, 1951, as reaffirmed in its decision and order of June 10, 1952, is hereby reversed. The alien was permitted to enter the United States by the Immigration authorities as a nonquota immigrant after having obtained a nonquota immigration visa from the United States consul in Copenhagen without fraud or misrepresentation. Some evidence existed to support the alien's claim to a nonquota immigrant status. Thereafter deportation proceedings were instituted under section 14 of the Immigration Act of 1924. As I interpret section 14, once deportation proceedings have been instituted pursuant to it, a de novo review of the facts relevant to the question whether the alien was entitled to enter the United States at the time of entry is required even under circumstances such as are present in the instant case. This order does not determine that question or, except as indicated, any other question present in the case. The Board of Immigration Appeals is authorized to take such further action as may be not inconsistent. with this order.

RECONSIDERED BY BOARD

(October 10, 1952)

Discussion: This case is before us on the basis of the Attorney General's order, reversing the decision and order of this Board dated October 31, 1951, as reaffirmed by us on June 10, 1952.

The facts in this case are fully set forth in our previous decision of October 31, 1951, at which time we ordered that the proceedings be terminated. The effect of the Attorney General's decision is to sustain the position of the Service that the respondent is deportable on the grounds stated in the warrant of arrest; that is, that at the time of entry he was a quota immigrant who was not in possession of a quota immigration visa and that he was not a nonquota immigrant as specified in his visa. Since it has been determined that the respondent's entry was unlawful and that he is deportable, we will give consideration to the question of whether discretionary relief should be granted in this case.

The respondent has no criminal record and we are satisfied regarding his good moral character during the last 5 years. It appears that, at this time, he may be in a position to meet the requirements for obtaining a nonquota visa under the provisions of section 4 (d) of the Immigration Act of 1924. We will, therefore, afford him an op

portunity of adjusting his immigration status. Accordingly, the following order will be entered.

Order: It is ordered that the order of the Acting Assistant Commissioner dated February 26, 1951, and the orders of this Board dated October 31, 1951, and June 10, 1952, be and the same are hereby withdrawn.

It is further ordered that the alien be permitted to depart from the United States voluntarily at any time prior to December 24, 1952, without expense to the Government, to any country of his choice, under such conditions as the officer in charge of the district deems appropriate.

It is further ordered that preexamination be authorized, provided that the respondent avails himself of this privilege on or before December 23, 1952.

IN THE MATTER OF H

In VISA PETITION Proceedings

VP-448327

Decided by the Central Office November 9, 1951

Decided by Board March 12, 1952

Citizenship-Expatriation-Army deserter in wartime dishonorably discharged after conviction by court martial-Construction of section 401 (g) of the Nationality Act of 1940.

(1) Native-born citizen held to have lost his United States nationality on March 15, 1949, under the provisions of section 401 (g) of the Nationality Act of 1940, by reason of his dishonorable discharge from the United States Army after his conviction by a court martial for deserting the military service of the United States in time of war.

(2) Loss of United States nationality under section 401 (g) of the Nationality Act of 1940 held to have occurred on March 15, 1949, under the following circumstances: Desertion from the military service of the United States which occurred from about December 17, 1943, until April 9, 1944; after conviction by court martial, sentenced on May 13, 1944, to be dishonorably discharged and to be confined at hard labor for 25 years; on June 19, 1945, the unexecuted portion of sentence including dishonorable discharge was suspended and restoration to active duty followed; as a result of absence without leave from August 9, 1945, to April 12, 1948, suspension of unexecuted suspended sentence vacated and unexecuted sentence ordered into execution; on October 13, 1948, so much of sentence to confinement as was in excess of 6 years remitted by direction of the President; and on March 15, 1949, dishonorable discharge from the military service of the United States.

BEFORE THE CENTRAL OFFICE

(November 9, 1951)

Discussion: The petition was filed for the purpose of establishing that the beneficiaries are each entitled to a nonquota status under the provisions of section 4 (a) of the Immigration Act of 1924, as amended, as the wife and child of a citizen of the United States.

The question presented is whether the petitioner is a citizen of the United States.

The petitioner acquired United States citizenship at the time of his birth on April 10, 1911, at Carnegie, Pa. He was lawfully married to the beneficiary wife on May 20, 1946, in Italy. Documentary evi

dence of the birth of the petitioner's child, named in the petition, has not been submitted. The petitioner is gainfully employed, earning about $250 per month. His employment is of a permanent nature. He has submitted satisfactory evidence of his ability and willingness to support the beneficiaries, in the event of their admission into the United States.

On March 7, 1942, the petitioner was inducted into the Army of the United States at New Cumberland, Pa. On March 5, 1943, he departed for military service abroad. About December 17, 1943, while this country was at war, the petitioner deserted from the military service of the United States and remained absent in a desertion status until April 9, 1944, when he was apprehended. Thereafter he was found guilty by a general court martial of violation of the 58th Article of War, by reason of such desertion, resulting in his being sentenced on May 13, 1944, to be dishonorably discharged from the military service, forfeiting all pay and allowances due or to become due, and to be confined at hard labor for a period of 25 years. On June 19, 1945, the unexecuted portion of the sentence, including dishonorable discharge which was suspended until his release from confinement, was suspended and the petitioner was restored to active duty. Subsequently the petitioner absented himself from military service without official leave from August 9, 1945, to April 12, 1948, inclusive. As a result of this absence without official leave, the suspension of the unexecuted portion of the sentence previously imposed was vacated and the sentence was ordered carried into execution. Under date of October 13, 1948, so much of the sentence to confinement as was in excess of 6 years was, by direction of the President, remitted. On March 15, 1949, the petitioner was dishonorably discharged from the military service of the United States in accordance with the unremitted portion of the sentence imposed by general court martial.

Prior to its amendment by the act of January 20, 1944, section 401 (g) of the Nationality Act of 1940 (8 U. S. C. 801), provided as follows:

A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

(g) deserting the military or naval service of the United States in time of war, provided he is convicted thereof by a court martial;

The present form of the statute was effected by the amendatory act of January 20, 1944, subdivision (g) of the statute now reads as follows:

A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

(g) deserting the military or naval service of the United States in time of war, provided he is convicted thereof by a court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such

military or naval forces: Provided, That notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this or previous acts by reason of desertion committed in time of war, restoration to active duty with such military or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military or naval authority, prior or subsequent to the effective date of this act, shall be deemed to have the immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or hereafter so lost and of removing all civil and political disabilities resulting therefrom.

The petitioner deserted from the military service in 1943, but he was apprehended and tried and sentenced by general court martial after the effective date of the said amendatory act of January 20, 1944. The statute provides that the penalty of loss of nationality shall not be effected unless, as a result of such conviction, the person is dismissed or dishonorably discharged from the armed forces. Under the statute, if a member of the military service is convicted by court martial of deserting the military or naval service in time of war and, as a result thereof, he is dismissed or dishonorably discharged from the service, he immediately loses his citizenship. However, in the instant case, the petitioner's dishonorable discharge was suspended until he had served part of his sentence of confinement and the remaining portion of the sentence of confinement had been remitted. Therefore he did not lose his United States citizenship until March 15, 1949, when he was actually dishonorably discharged from the military forces. The statute definitely provides for the loss of "nationality."

The petitioner's restoration to duty under suspension of sentence, which suspension was later revoked, and a remittance of a portion of his sentence of imprisonment, could not, under the statutory provisions, effect any change in his citizenship status, as he did not lose his nationality until his dishonorable discharge pursuant to the unremitted portion of the court martial sentence. Nor could such temporary restoration to duty defeat the operation of the statute with respect to loss of nationality upon the subsequent execution of the sentence of dishonorable discharge.

On the record, it is concluded that the petitioner lost his United States citizenship on March 15, 1949, upon being dishonorably discharged from the United States Army by reason of his conviction of deserting the military forces of the United States in time of war. Therefore his visa petition must be denied.

With respect to the petitioner's child, alleged to have been born in Italy on May 14, 1947, it appears that she may have acquired citizenship in the United States under the provisions of section 201 (g) of the Nationality Act of 1940. Application for an American passport can be made for the child, at which time her citizenship status may be determined.