Q. Didn't you realize that it was your obligation to present yourself for training and service in the armed forces of this country?

A. I didn't have my birth certificate and the baptismal certificate.

Q. Weren't you in possession of a U. S. Citizen's Identification Card which was issued at the port of Laredo, Tex., on March 23, 1936?

A. Yes, I had that but I didn't know it said U. S. Citizen.

Q. Then you have had proof of United States citizenship in your possession since March 23, 1936, until the present time, isn't that correct?

A. Yes, that is true.

Q. You stated that you had obligations to your family, is that the reason that you remained outside the United States to avoid military training and service in the armed forces of this country?

A. I had my mother and I had two children, and the woman I was living with and to whom I am now married, and I had to support them, and if I came to the United States I couldn't support them.

Q. Then you voluntarily remained outside the United States to avoid training and service in the armed forces of the United States-is that correct?

A. Yes.

On this evidence, we think that appellant was not expatriated. Appellant remained in Mexico because he was living in that country and because it was necessary for him to continue to support his family. The last question set forth above asked for a conclusion, and his reply is of little value because it is not supported by his preceding testimony. Section 401 (j) was added to the Nationality Act by an amendment approved September 27, 1944. The legislative history shows that Congress was primarily intent on reaching citizens who departed from the United States during the war and expected to remain outside until the war was ended. (See 78th Cong., 2d sess., S. Rept. 1075, H. Rept. 1229.) However, in view of the board language, the section is applied even though the citizen has resided abroad for several years prior to the effective date of the Selective Service Act. Where these are the facts, we think section 401 (j) should not operate to expatriate unless the evidence clearly shows that the citizen remained outside the United States for the primary purpose of escaping military service. (See Matter of G- M- 6605457, May 15, 1947; Matter of DR, 6489137, May 22, 1947; Matter of K6661544 (renumbered 56231/835), July 1, 1947.) In a case of this kind, a finding of expatriation under section 401 (j) for remaining outside the United States should not be made, except in unusual circumstances, unless the citizen had a desire or an intention to return to the United States, but refrained from doing so because he wished to escape military service. Where a person subject to military service departed from this country during the war, the facts may reasonably give rise to the inference that he was motivated by a desire to escape military service. And it also may be inferred that he remained abroad for the same purpose.

However, where a person has resided abroad for a lengthy period, there are considerations other than the desire to escape military service which explain the fact that he continued to reside abroad. With possible exceptions which we need not here attempt to define, such a person should not be regarded as having remained abroad for the purpose of escaping military service unless it appears that he intended to come to the United States but refrained from doing so because he feared military service.

Appellant has resided in Mexico since 1920. His residence was in Mexico City, far from the border. There is no indication that he desired to come to the United States during the war. We think the evidence shows that he remained in Mexico in order to continue to support his family and not to escape military service.

Findings of Fact: Upon the basis of all the evidence presented, it is found:

(1) That appellant was born in the United States in November 1918, but he has resided in Mexico since 1920;

(2) That appellant registered for military service at a Unted States consulate in August 1946 and he applied for admission for permanent residence in June 1947;

(3) That prior to his application for admission in June 1947 appellant remained in Mexico in order to continue to support his family and not for the purpose of escaping military service. Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under the fourteenth amendment to the Constitution, appellant acquired United States citizenship by birth in this country;

(2) That under section 401 (j) of the Nationality Act of 1940, as amended, appellant did not become expatriated by remaining outside of the United States for the purpose of evading or avoiding training and service in the military forces of the United States, and the immigration laws relating to aliens do not apply to him.

Order: It is ordered that the appeal be sustained and that appellant be admitted as a citizen of the United States.

IN THE MATTER OF L

In PREEXAMINATION Proceedings

5878178

Decided by Board July 14, 1947

Ineligible to citizenship-Neutral alien files exemption from United States military service as national of neutral country-Section 3 (a) of the Selective Training and Service Act of 1940. Inadmissible-Section 13 (c) and 28 (c) of the Immigration Act of 1924, as amended.

An alien who filed exemption from United States military service as a national of a neutral country is barred from naturalization under the provisions of section 3 (a) of the Selective Training and Service Act of 1940 and became inadmissible as an alien ineligible to citizenship under the provisions of section 13 and 28 (c) of the Immigration Act of 1924 upon the amendment of the latter section on October 29, 1945.

FOUND INADMISSIBLE BY BOARD OF SPECIAL INQUIRY:

Act of 1924, as amended-Ineligible to citizenship.

BEFORE THE BOARD

Discussion: Appellant is a 47-year-old native of Germany and citizen of Switzerland. He was admitted to the United States on June 3, 1941 under section 3 (6) of the Immigration Act of 1924 as a treaty trader. He still has that status. However, appellant desired to become a permanent resident of the United States, and accordingly he filed an application for preexamination. His application was granted but during the preexamination proceeding he was found inadmissible on the ground stated above. The Commissioner affirmed the finding of inadmissibility made by the Board of Special Inquiry.

Appellant registered under the Selective Training and Service Act of 1940. Apparently when his induction became imminent he contacted the Swiss Legation in Washington for advice as to his status under the Selective Training and Service Act. It appears that negotiations were conducted between the Swiss Legation and the Department of State. The Swiss Legation took the position that its nationals were exempt from military service under article 2 of the Treaty of Friendship, Commerce and Extradition, 1850, between the United States and Switzerland. The Legation was of the further opinion that its nationals would not be ineligible for American citizenship even if they claimed and were granted exemption from military service. The Department of State, however, apparently advised the Swiss Legation that the question of eligibility for naturalization would be

a question for the courts to decide. We note that at that time neutral aliens who became ineligible to citizenship because of claiming exemption from military service were not inadmissible to the United States. Such aliens did not become inadmissible until section 28 (c) of the Immigration Act of 1924 was amended on October 29, 1945.

In accordance with the advice received from the Swiss Legation, appellant in May 1943 filed his claim of exemption from military service with his local draft board. In a covering letter to the draft. board appellant explained that he was claiming exemption, not under section 3 (a) of the Selective Training and Service Act of 1940, but under article 2 of the treaty with Switzerland. Appellant was exempted from military service in accordance with his claim.

On January 26, 1945, appellant wrote the local board withdrawing his claim of exemption and waiving any rights or privileges that he had acquired by reason of his 4-C classification. The local draft board apparently acceded to his request and reclassified him 4–A.

Counsel for appellant now contends that he is not ineligible to citizenship nor inadmissible to the United States under section 13 (c) of the Immigration Act of 1924. He argues that appellant claimed and obtained exemption from military service under the treaty with Switzerland, and that alone. He requests that if we cannot make such a finding on this record, the hearing should be reopened to incorporate into the record the appropriate files of the Department of State and the Selective Service System which bear on his contention.

We do not think anything can be gained by reopening the case for further evidence in accordance with counsel's request. Whatever opinion may have been expressed by the Department of State or the Selective Service System on the question of appellant's eligibility for citizenship, such opinions would not be binding upon us. We think that nationals of Switzerland were and are now entitled to claim exemption from military service on the basis of the Swiss treaty. However, we further think that Congress, in amending the Selective Training and Service Act of 1940 in December 1941 by making all neutral aliens who claim exemption ineligible for citizenship, declared its intent to penalize all nationals of neutral countries having treaties with the United States similar to the Swiss treaty who claimed exemption from military service. Appellant in this case did claim exemption and his claim was recognized. We conclude that he thereby became ineligible to citizenship. The fact that subsequently he abandoned this claim and was reclassified is of no moment. (Matter of J—, 4558054 (Atty. Gen.'s decision June 9, 1947)).

Findings of Fact: Upon the basis of all the evidence presented, it is found:

(1) That appellant is an alien, a native of Germany and a citizen of Switzerland;

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(2) That appellant claimed exemption from military service in May 1943 and his claim of exemption was recognized;

(3) That in January 1945 appellant withdrew his claim of exemption and was reclassified accordingly.

Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under section 13 (c) of the Immigration Act of 1924 appellant would be inadmissible to the United States on the ground that he is a person ineligible to citizenship.

Order: It is ordered that the motion to reopen be denied.

It is further ordered, That the finding of inadmissibility by the Board of Special Inquiry be affirmed.