the said Act or regulations made thereunder. Accordingly two basic factors were presented. First Kristensen was unlawfully "residing" in the United States under the immigration laws at the time he filed his application for relief from military service. Second, under section 3 (a) of the Selective Training and Service Act of 1940 Kristensen was liable for military service if "residing" in the United States within the meaning of the act. The Selective Training and Service Act, however, did not define who was a "male person residing in the United States" liable for training and service after its amendment December 20, 1941. It was necessary for the Supreme Court to turn to the administrative regulations authorized under the act. They found in the alternative that under applicable regulations an alien in Kristensen's situation was either a nonresident of the United States between February 7, 1942, and May 7, 1942, for the purpose of the Selective Training and Service Act or that the applicable regulations were nondeterminative of his status during the period. The latter alternative made it necessary for the Supreme Court to interpret the term "residing" as used in section 3 (a) of the Selective Training and Service Act, as amended. It is clear from a reading of the penultimate paragraph of Justice Reed's opinion that the overall purpose of the Selective Training and Services Act together with the fact that exigencies of war made Kristensen's extended sojourn necessary were duly considered in reaching their conclusion.

The case at bar, however, presents only the first basic factor referred to above. The respondent originally entered the United States on August 18, 1939, one day after Kristensen. Unlike Kristensen he was granted successive extensions of staying by the Immigration and Naturalization Service which extended to January 1, 1946. He voluntarily departed from the United States on September 22, 1945, while still in the lawful status of a visitor for business. At the time the respondent filed an application for relief from military service on November 4, 1942, the records of the agency of the Government primarily charged under the Immigration Act of 1924 with the responsibility of determining his immigration status showed that he was to be considered as a "temporary visitor" until March 1, 1943. In fact the respondent, under date of August 30, 1942, wrote the then Deputy Commissioner thanking the Department of Justice "for the extension of (his) temporary stay to March 1, 1943, and for the permission to continue (his) employment." He referred to the fact that he had been placed by the "United States Farm Employment Service," that he was "giving a hand to the farmer's harvest as I heard they were short on help when I registered" and that he "notified the local (draft) board the first day of my arrival here." Thus it is clear from the record that both the respondent and the agency of the Government

primarily charged by law with the responsibility construed his status to be that of a nonresident alien at the time he filed the pertinent application. Under the circumstances it would be extremely arbitrary and capricious to construe the congressional use of the term "residing" found in section 3 (a) of the Selective Training and Service Act of 1940 to include all "temporary visitors," regardless of the surrounding circumstances, or their own attitude and that of the responsible Executive Agency toward their presence here.

It is our considered opinion in light of the foregoing that we would be doing complete violence to section 3 (a) of the Selective Service statute if we construed the phrase "residing in the United States" as applicable to the respondent. Our position is amply supported by Mr. Justice Jackson's concurring opinion in the Kristensen case (supra). He repudiated a prior opinion of his (39 Op. A. G. 504) interpreting the very same clause of the Selective Training and Service Act with which we are here concerned. Justice Jackson stated that his opinion as Attorney General did not consider our diplomatic history which consistently asserted the rights of our citizens to be free from "seizure for Military duty by reason of temporary and lawful presence in foreign lands." He mentioned the fact that "if an alien is not a mere sojourner but acquires residence here in any permanent sense, he submits himself to our law and assumes the obligations of a resident toward this country." He reached the same conclusion as we do; namely, that "the language of the Selective Training and Service Act can be interpreted consistently with this history of our international contentions." Under similar circumstances Judge Hall in Ex Parte Ghosh, 58 F. Supp. 851, 854 (D. C. S. D., Cal., November 16, 1944), so forcibly said, “after all, it is one government and I do not think it is within the contemplation of our system that a man should be fish before one department and fowl before another *** it would require, I think, what John Marshall called refined and metaphysical reasoning (to subject an alien student visitor to Military Service on behalf of the United States)." These views we consider basic in adjudicating this case.

There is one point in the argument of counsel for the Immigration Service not included in those referred to above and which we think should be answered. Counsel for the Service maintains that the distinction he has raised with respect to Kristensen case (supra), was recognized by this Board in Matter of K, A-9623678, April 17, 1951. The alien in Matter of K (supra), last entered the United States on January 1, 1943, and was admitted as a seaman for a period of 29 days or the length of time his vessel was in port whichever period was the shorter. He remained after his vessel departed. When he filed an application for relief from military service as an alien of a

neutral country, Finland, on February 6, 1943, he was residing here in an unlawful status.

Thus we were confronted with the same basic factors as the Kristensen case presented; namely, an unlawfully resident alien who was liable for Military Service if "residing" in the United States within the meaning of the Selective Training and Service Act. The extent of our findings in that case parallel those of the Supreme Court in the Kristensen case, namely, that the applicable regulations under the Selective Training and Service Act "specifically excepts a nondeclarant alien who enters the United States lawfully (K- entered lawfully as a seaman) from registering or filing an application for determination of residence (Form 302) until 3 months after the date of his entry if he entered subsequent to May 16, 1942." Since K-lawfully entered on January 1, 1943, and was a nondeclarant alien, there was no obligation on his part under the Selective Service regulations to register or file for a determination of residence until April 1, 1943. We found on the basis of the Selective Service regulations in effect at the time of K―'s entry that when he filed his application for relief on February 6, 1943, he was not "residing in the United States" within the meaning of the Selective Service Act because the 3-month period of grace had not expired.

The respondent herein, however, maintained the lawful status of a temporary visitor and it was so recognized by the responsible agency of the Government for the entire period of his sojourn August 18, 1939, through September 22, 1945. Accordingly counsel's argument in behalf of the Service on this point is without merit.

Order: The motion is hereby denied. Our opinion of April 6, 1951, is hereby affirmed.

Mr. LEIGH L. NETTLETON, Member, dissenting:

The decision by the Supreme Court in the Kristensen case (340 U. S. 162, 1950), in my opinion leads to the conclusion that the respondent is ineligible for citizenship. If that be so, his ineligibility disqualifies him for preexamination inasmuch as he is inadmissible to the United States (8 U. S. C. 213 (c)) and cannot obtain issuance of an immigration visa (8 U. S. C. 202 (f)).

The comment by Mr. Justice Jackson in his concurring opinion in the Kristensen case that "We should (not) construe our legislation to penalize or prejudice such aliens (here for temporary residence) for asserting a right ***" seems not to have been transgressed. Examination of the Selective Service regulations discloses that the right of a temporary resident has been fully protected by provision promulgated February 7, 1942, for an application of determination of status (32 C. F. R. 611.21). The respondent made no such application. On the contrary, he sought exemption from liability to service by assert

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ing his claim that he was a neutral alien. Such application under 50 U.S. C. 303 operated to bar him from becoming a citizen of the United States.

Under 32 C. F. R. 611.13, an alien who was not a member of a class specifically exempted, to which the respondent makes no claim, and who was in the United States after May 16, 1942, or for more than 3 months after the date of his entry, whichever is the later, is declared to be residing in the United States within the meaning of the Selective Training and Service Act of 1940. Prima facie, therefore, he was liable to serve, and on November 4, 1942, he asserted his status as a neutral alien as basis of his application for relief from such liability. The fact that for the purpose of the immigration laws he was accorded the status of a temporary visitor is, in my opinion, beside the point. I believe that so much of our order of April 6, 1951, which grants the respondent the privilege of preexamination should be withdrawn.

In accordance with the provisions of Title 8, Code of Federal Regulations, section 90.12 (c) this case is certified to the Attorney General for review of this Board's decision.

BEFORE THE ACTING ATTORNEY GENERAL

(September 11, 1951)

The decision and order of the majority of the Board of Immigration Appeals dated August 2, 1951, are hereby disapproved.

IN THE MATTER OF G

In EXCLUSION Proceedings

A-7367905

Decided by Central Office February 28, 1950

Decided by Board May 3, 1950

Crime involving moral turpitude-Putting false money into circulation in violation of sections 146 and 147 of the German Criminal Code.

The offense of putting false money into circulation in violation of Sections 146 and 147 of the German Criminal Code involves moral turpitude (conviction by United States Military Court,* Munich, Germany, August 11, 1949)

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1917-Convicted crime involving moral turpitude, to wit:
Putting false money into circulation.

BEFORE THE CENTRAL OFFICE

(February 28, 1950)

Discussion: Upon consideration of the entire record, the findings of fact and conclusions of law entered by the board of special inquiry October 24, 1949, and personally served upon appellant and his representative overseas are hereby adopted with the following modifications:

Finding of Fact No. 5 is deleted and Finding of Fact No. 6 is renumbered Finding of Fact No. 5 and amended to read as follows:

(5) That you were convicted by the United States Military Government Court for Germany, District Court for the Eighth Judicial District, at Munich, Germany, August 11, 1949, on a plea of not guilty to violation of Ordinance No. 1,

* Editor's note.-That the B. I. A. has no authority to reverse such a court's findings was noted in unreported Matter of K, A-7427459, B. I. A. 9-8-50. To like effect as the language used by the B. I. A. in the above Interim Decision in the penultimate paragraph of its decision of 5-3-50, is the language in unreported Matter of D—, A-7394992, B. I. A. 7-24-50. Theft in violation of Military Government Ordinance No. 1, Article 1, Section 19 (conviction by military government court April 1946 for stealing property of the Allied Forces was held to involve moral turpitude (unreported Matter of S, A-7356187, C. O. December 30, 1949, B. I. A. February 10, 1950.))