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?

A. Yes.

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.

By the above-quoted provision of the Selective Training and Service Act, aliens who elected to claim the benefits thereunder were required to assume the burdens and responsibilities thereof. Mr. C—— elected to claim the benefits; namely, exemption from military service. His wish was respected and he was, in fact, accorded the exemption provided in such cases. By his own testimony on two separate occasions it is abundantly clear that in claiming exemption from military service C did so with full knowledge of the attendant consequences of his act; namely, that he would thereafter be debarred from becoming a citizen of the United States. The language of the statute seems plain and I think that Congress intended that an alien who elected to claim exemption from United States military service with full knowledge of the consequences of his act should be bound by his election. To hold otherwise would require reading into the act provisions which do not exist.

On the basis of the above facts, the applicable provision of the Selective Training and Service Act (supra), and the applicable provision of the Immigration Act of May 26, 1924, as amended (supra), it is my conclusion that the alien is not eligible to United States citizenship. Being ineligible to citizenship the alien is thereby ineligible for suspension of deportation under section 19 (c) of the Immigration Act of February 5, 1917 (8 U. S. C. 155 (c) (2)). Therefore, the question before me; namely, can the above-named alien legally adjust his immigration status, must be answered in the negative. The petition of the alien is hereby denied and the order and decision of the Board of Immigration Appeals, dated September 26, 1950, are hereby approved.

BEFORE THE BOARD

(February 1, 1951)

Discussion: This case is before us on motion requesting reconsideration of the order for the alien's deportation on the charge that he is in the United States in violation of the act of 1924 in that he was not in possession of a valid immigration visa at the time of entry. The alien, a native and citizen of Portugal, about 42 years of age, entered the United States on October 29, 1938, as a stowaway. On May 6, 1942, he signed a DSS Form 301 requesting exemption from military service under the Selective Training and Service Act of 1940 as a national of a neutral country. During April 1944 he sought to withdraw the claim for exemption and volunteered for military service; however, he was rejected for service following a physical examination.

The alien is married to a United States citizen. Discretionary relief looking toward adjustment of his immigration status in this

country has been denied him as he is ineligible for naturalization because of seeking relief from military service in the armed forces.

Counsel seeks reconsideration of the case on the basis of the decision of the United States Supreme Court in J. Howard McGrath v. Peder Kristian Kristensen, decided December 11, 1950. Counsel in his motion fails to point out any similarity between the instant case and the Kristensen case. The Kristensen case was concerned with a neutral alien who had been admitted to the United States temporarily. The issue in that case was whether Kristensen was residing in the United States. In the instant case, the subject alien entered this country as a stowaway with the intent of remaining permanently in the United States. The issue in the Kristensen case is not present in the instant case. In addition, this case was exhaustively reviewed by the Acting Attorney General, and on December 20, 1950, he affirmed an order of this Board denying the request for further consideration. This decision was made after the decision of the Supreme Court in the Kristensen case.

In view of the foregoing factors, the request for stay of deportation, and for further consideration, and for oral argument will be denied. Order: It is ordered that the motion requesting further consideration and oral argument be and the same is hereby denied.

It is further ordered, That a stay of deportation be denied.

IN THE MATTER OF CR

In DEPORTATION Proceedings

A-7828860

Decided by Central Office October 2, 1950

Sentenced to imprisonment-Section 19, Immigration Act of February 5, 1917Commitment to Youth Authority and subsequent incarceration in Vocational Institution (California).

An alien was convicted in the Superior Court at Los Angeles, Calif., on December 30, 1949, for the commission of the crime of burglary, second degree, on or about October 16, 1949. This court found him to have been over 19 but under 21 years of age when apprehended, and ordered him to be committed to the Youth Authority of the State of California for the time prescribed by law. He was incarcerated in the California Vocational Institution at Lancaster, Calif., for a term of a year or more. Such alien was sentenced to imprisonment within the meaning of the immigration laws.

CHARGES:

Warrant: Act of 1924-No immigration visa.

Lodged: Act of 1917-Crime within 5 years-Burglary in the second degree.

BEFORE THE CENTRAL OFFICE

Discussion: The respondent, a native and citizen of Mexico, last entered the United States at Del Rio, Tex., about January 23, 1947. He secured entry by presenting a fraudulent certificate indicating that he had been born in the United States. At the time of entry it was his intention to seek employment. He was not then in possession of an immigration visa and had never been lawfully admitted to the United States for permanent residence. The warrant charge is, therefore, sustained.

With respect to the lodged charge, exhibit 4 shows that the respondent was convicted of the crime of burglary, second degree, a felony, on December 30, 1949, in the superior court at Los Angeles, Calif., the crime having been committed on or about October 16, 1949, within 5 years of his entry. The information charged that the respondent entered a building with the intention of committing theft. It is clear, therefore, that the crime involved moral turpitude. Matter of V——— T——————, 2, I. & N. Dec. 213.

The remaining question is whether the respondent has been sentenced to imprisonment for a term of 1 year or more. Under section 461 of the Penal Code of California, burglary in the second degree is punishable by imprisonment in the county jail for not exceeding 1 year or in the State prison for not less than 1 year or more than 15 years. The commitment in the case sets forth that on March 1, 1950, the court found that the respondent was under 21 years of age and over 19 years of age at the time of his apprehension, and the court ordered that he "be committed to the Youth Authority of the State of California for the time prescribed by law." It is stated in exhibit 3, which is a letter from the California Vocational Institution, Lancaster, Calif., that the respondent was received at that institution on April 7, 1950, under a commitment dated March 1, 1950, from the superior court of Los Angeles County. The respondent is still incarcerated in that institution.

The hearing examiner made a finding in this case that the respondent was sentenced to imprisonment for a term of 1 year or more. An official of the California Vocational Institution, who appeared at the hearing as a Government witness, testified that the respondent's confinement in that institution was an imprisonment, and he answered in the affirmative when asked whether the respondent's imprisonment was for a term of 1 year or more. Since this testimony represents merely the opinion of the witness in the nature of a legal conclusion, it is not of assistance in reaching a determination. It does not appear that this Service has previously considered the question of whether a commitment to the Youth Authority of California and subsequent confinement in an institution constitute a sentence of imprisonment within the meaning of the immigration laws.

In Matter of C—, 55829/975 (1936 C. O.), the following rule* was adopted on March 13, 1936, with respect to sentences to reformatories:

*Editor's note.-The Solicitor of Labor's view was followed; also see U. S. ex rel. Cerami v. Uhl, 78 F. (2d) 698 (C. C. A. 2), as to commitment of a minor to the New York House of Refuge and also see U. S. ex rel. Popoff v. Reimer, 79 F. (2d) 513 (C. C. A. 2), re commitment of a 17-year-old to the New York State Reformatory, which was held to be a sentence to imprisonment; the commitment to the New York House of Refuge was held not to be a sentence to imprisonment. In the unreported Matter of P, 56074/609, now A-3417212, B. I. A., September 17, 1943, a violation of 18 U. S. C. 502 (new 2275) and 371 was involved, the unlawful acts being committed when this alien was 17, and on conviction on March 29, 1941, this alien was committed to the Attorney General for imprisonment in an institution of a reformatory type and he was committed to the Federal Reformatory at El Reno, Okla. This reformatory was regarded in the same light as the Federal Industrial Reformatory at Chillicothe, Ohio, commitments to which were treated as sentences to imprisonment.