marriage was registered by the mayor of Fukuoka, Japan, on August 29, 1951. The marriage appears to be of the type referred to in the Petition of L-, VP-455179, March 28, 1952, C. O. In that case reference was made to arrangements which had been made by the Department of State, the United States military authorities, and the Japanese civil authorities, whereby marriages performed by Japanese or Christian ceremony could be subsequently registered in accordance with Japanese law, where the United States citizen spouse was no longer under military authority and was no longer present in Japan. In the L case, it was determined that such marriages were valid as of the date of registration and although one spouse was absent at the time of the registration, such marriage was not a proxy marriage. The marriage in the instant case may, therefore, be considered a valid marriage as contemplated by section 4 (a) of the Immigration Act of 1924, and Public Law 717, as amended by Public Law 6. There now remains the question as to whether petitioner's dishonorable discharge from the Armed Forces of the United States disqualifies him for the benefits of Public Law 717, as amended by Public Law 6. Public Law 6, 82d Congress, March 19, 1951, amended Public Law 717 to read as follows:

Notwithstanding the provisions of section 13 (c) of the Immigration Act of 1924, as amended (8 U. S. C. 213 (c)), alien spouses or unmarried minor children of United States citizens serving in, or having an honorable discharge certificate from the Armed Forces of the United States during World War II shall, if otherwise admissible under the immigration laws, be eligible to enter the United States with nonquota immigration visas issued under the provisions of section 4 (a) of the Immigration Act of 1924, as amended (8 U. S. C. 204 (a)): Provided, That in the cases of such alien spouses of the United States citizens serving in, or having an honorable discharge certificate from the armed forces of the United States during World War II the marriage shall have occurred before twelve months after the enactment of this Act, as hereby amended.

Although the petitioner was dishonorably discharged on November 22, 1949, he had previously received an honorable discharge on March 18, 1949, having served from March 5, 1946. Petitioner's first period of service and his honorable discharge on March 18, 1949, would, in itself, qualify him for the benefits of Public Law 717, as amended. However, consideration must be given the question as to whether his later dishonorable discharge from a subsequent period of service would disqualify him from such benefits.

A similar problem arose in the Matter of S―, A-6389124, May 19, 1948, in which the spouse of a United States citizen sought to adjust her immigration status under Public Law 271. The citizen spouse had served in the United States Navy from January 26, 1942, to May 22, 1942, at which time he was honorably discharged. He again enlisted July 30, 1942, and following a conviction by a general court martial he was given a bad-conduct discharge on October 13, 1944.

260397-54- -41

Public Law 271 provided special benefits for alien spouses of United States citizens serving in, or having an honorable discharge certificate from the Armed Forces of the United States during the Second World War. In that case it was determined that the subsequent bad-conduct discharge did not nullify the benefits earned by the honorable service and discharge and that the spouse was eligible for the benefits of Public Law 271. It was stated that:

** * there would appear to be no jurisdiction for extending the meaning of the statute with a delimiting effect not apparent from its present wording. That language is clear and explicit. It sets forth certain requirements to be met. Once met, the alien is entitled to the benefits thereof. No provision is made for the exercise of discretion or withholding of the benefits.

This view of the statute is not inconsistent with the evident intent of the legislature to confer a reward for meritorious service. Conceivably a citizen spouse might serve meritoriously for several years under hazardous combat conditions, receive an honorable discharge, thereafter reenlist and after a brief period of service receive a discharge under other than honorable conditions. To deny an application for the benefits of the act of December 28, 1945, on the ground that a dishonorable discharge has the effect of negativing any honorable service, might lead to inequity.

Moreover, to hold that the legislative intent was that the overall service shall have been honorable, leads necessarily to throwing open the citizen spouse's entire record of military service, and involves determination of such questions as the nature of the offense or offenses resulting in a bad conduct or dishonorable discharge; whether the citizen spouse had committed other crimes or offenses during his entire military career, or whether he had performed any meritorious acts. It is doubtful if it was intended that this Service examine thus behind the fact of a duly issued honorable or dishonorable discharge certificate into matters not generally deemed within its province, and not susceptible to accurate determination with information readily available.

This problem also arose in the Petition of G, A-7189522; 2270P-582466, a petitioner under the provisions of section 324A of the Nationality Act of 1940 seeking naturalization on the basis of his honorable service in the Armed Forces of the United States from August 14, 1945, to October 18, 1945, at which time he was honorably discharged; and from October 19, 1945, to September 10, 1948, at which time he was also honorably discharged. He again enlisted on September 13, 1948, and was dishonorably discharged April 22, 1949. It was determined that the petitioner met the requirements of section 324A by his honorable service and his honorable discharge prior to December 31, 1946. The court admitted him to citizenship despite the subsequent discharge under other than honorable conditions.

In view of the foregoing, it is concluded that petitioner's dishoncrable discharge on November 22, 1949, does not nullify the fact that he meets the requirements of Public Law 717, as amended by Public Law 6, by reason of his service and honorable discharge for the period from March 5, 1946, to March 18, 1949.

His petition for issuance of immigration visa may, therefore, be approved.

Information received informally from the Adjutant General's Office discloses that the petitioner's dishonorable discharge following conviction by a court martial was not because of desertion.

Order: It is ordered that the petition for issuance of immigration visa filed by LS, Jr., in behalf of T- SS be T▬▬S▬S▬▬ approved.

IN THE MATTER OF M

In DEPORTATION Proceedings

0402-16159

Decided by Board April 22, 1952

Voluntary departure (without order of deportation)-Statutory eligibility— Section 19 (c), Immigration Act of February 5, 1917, as amended-Ultimate grant of such relief in each case rests on its merits-General considerations whether discretion to be exercised, if alien here but short period of time and has no family ties mentioned in section 19 (c) (2) (a) of the above act, as amended.

(1) Though eligible by statute for the relief of voluntary departure, without an order of deportation under section 19 (c) of the Immigration Act of February 5, 1917, as amended, the ultimate decision to exercise such discretionary relief is predicated on the merits of the case.

(2) If an alien has been here a relatively short period of time and has no family ties mentioned in section 19 (e) (2) (a) of the above act, as amended, there are some general considerations involved which permit like treatment in substantially similar cases, insofar as the grant of such discretionary relief is concerned.

(3) An alien, who once was granted voluntary departure and who again is found here illegally, does not merit a second chance for such departure in the absence of very strong extenuating circumstances.

(4) A further grant of such voluntary departure within a reasonable time (usually 30 days) is not deemed merited; (1) if previously granted such privilege before hearing but after apprehension in deportation proceedings, and sufficient reason is not given why he did not or could not so depart; or (2) if such privilege is granted at the hearing or the alien then rejects such privilege, and persuasive reason to support contrary action is absent.

CHARGE:

Warrant: Act of 1924-Remained longer-seaman.

BEFORE THE BOARD

Discussion: The respondent, a native and citizen of Portugal, about 45 years of age, has been ordered deported by the Acting Assistant Commissioner on the above charge. He arrived as a seaman at Norfolk, Va., December 22, 1950, on the S. S. Braga, and was admitted for the usual period of time, not exceeding 29 days. The deportability of the respondent is not questioned.

The only issue raised is whether, as a matter of discretion, voluntary departure within a reasonable time without an order of deportation should be authorized. This is the relief the respondent seeks.

It might be well at this time, broadly, to state the considerations which normally would lead to an order of voluntary departure, as a matter of discretion, in the case of aliens who have been in the United States a relatively short period of time and who do not have here the family ties mentioned in section 19 (c) (2) (a) of the Immigration Act of 1917 (as amended), and also factors which usually militate against the grant of such relief. We wish to caution that what we say here is not to be taken as an invariable rule, but that in each case the decision ultimately must be predicated upon the merits or demerits of that case. Nevertheless, when considering discretionary action, it is of the greatest importance in striving for justice and impartiality that all aliens whose cases are substantially similar receive like treatment. On this basis, we set forth a general guide as an aid toward this end.

In this discussion, it is assumed, and in the case before us it has been established that the statutory requirements for voluntary departure under section 19 (c) of the Immigration Act of 1917 are present. Voluntary departure without an order of deportation within a reasonable time, usually 30 days, ordinarily may be granted an alien of this class (1) who has not previously violated the immigration laws (or if so, that the violation was remote in point of time to facts involved in the current proceeding), (2) who establishes that he has, or very shortly will have the ability to depart at his own expense, either as a passenger or as a seaman, and (3) who makes a reasonable showing that in all good faith he will so depart within the time allotted and no reason is apparent why he will be unable to effect such departure. On the negative side, normally, aliens who entered the country as stowaways, who were smuggled into the United States, or who otherwise entered illegally where there was a design to effect permanent residence in the United States in violation of law, are denied voluntary departure.

The control of seamen has always been a troublesome problem in immigration enforcement. Under the foregoing criteria, a bona fide seaman who overstayed his shore leave ought to be given an opportunity to depart voluntarily, if able and willing to so leave. We recognize that a close factual question is often presented in regard to whether an alien was using the seaman route to gain entry into the United States, or whether the alien at the time of entry was a bona fide seaman, who after admission decided to get a job on shore and stay for a while at least. As an aid in this matter, usually a seaman should have been such occupationally for at least a year before meriting voluntary departure. On the other hand, an alien employed as a seaman