stated: "I do not wish to leave the country on my own. want me they can deport me." If they The respondent apparently joined the United States Army under the provisions of the Act of June 30, 1950 (Public Law 597, 81st Congress, 2d Session) as amended by section 402 (e) of the Immigration and Nationality Act. Such amendment appears as a note to 8 U.S.C. 1440 and provides in pertinent part that: * An alien enlisted or reenlisted pursuant to the provisions of this Act who subsequently enters the United States *** pursuant to military orders shall, if otherwise qualified for citizenship, and after completion of five or more years of military service, if honorably discharged therefrom, be deemed to have been lawfully admitted to the United States for permanent residence within the meaning of such section 329(a) [Immigration and Nationality Act]. Counsel takes issue with the statement of the special inquiry officer that since the respondent does not fall within any of the provisions of section 101(a)(15) of the Immigration and Nationality Act the respondent must, pursuant to section 214(b) of said act, be presumed to be an immigrant at the time of entry in November 1955. Counsel contends that the respondent entered under special legislation, neither as a nonimmigrant nor an immigrant. It is further contended by counsel that although the respondent did not serve for years in the Armed Forces of the United States and did not receive an honorable discharge, the respondent's entry into the United States was lawful and under special legislation and that the respondent is, therefore, not deportable. Section 284 of the Immigration and Nationality Act, which provides for the admission into the United States of alien members of the armed forces, also provides that nothing contained in such section shall be construed to give to or confer upon any such alien any other privileges, rights, benefits, exemptions, or immunities under the act which are not otherwise specifically granted by the act. Respondent's admission into the United States was not for permanent residence. He has neither the 5 years of military service nor the honorable discharge required under the provisions of the act of June 30, 1950, as amended by section 402 (e) of the Immigration and Nationality Act and, hence, has not acquired legal residence status (Dela Cena v. United States, 249 F.2d 341, Č.A. 9, 1957). As he has not met the conditions which would have changed his admission to that of a lawful admission for permanent residence, he becomes subject to deportation as an immigrant who was not in possession of an immigrant visa at the time of entry. He has been offered the opportunity to depart voluntarily but has declined to do so. Under the circumstances, it is concluded that he is subject to deportation on the charge contained in the order to show cause. The contentions raised in this case by counsel are somewhat similar to the contentions rejected by the court in United States ex rel. Sommerkamp v. Zimmerman, 178 F.2d 645 (C.A. 3, 1949). There, a native of Germany was brought to the United States in 1942 from Guatemala for internment. In 1946, after the end of the war, a warrant of arrest was issued by the Service charging that Sommerkamp was deportable under the Immigration Act of 1924 as an immigrant not in possession of the proper documents at the time of entry. After he failed to comply with an order of the Board of Immigration Appeals granting him voluntary departure, he was taken into custody by the Service in December 1948 for deportation. It was the contention of Sommerkamp that since he was brought into the United States involuntarily he was not an immigrant within the meaning of the Immigration Act of 1924 and was, therefore, not subject to deportation under that Act. The court held that after the time permitted for voluntary departure had expired the presence of Sommerkamp in the United States was voluntary, that he had made "an entry" within the meaning of the basic immigration act, and that he could be deported as an "immigrant" who had not satisfied the requirements of the law. In view of our finding that the special inquiry officer has correctly concluded that the respondent is subject to deportation on the charge contained in the order to show cause, the appeal will be dismissed. Order: It is ordered that the appeal be and the same is hereby dismissed. MATTER OF M In EXCLUSION Proceedings A-6421949 Decided by Board June 4, 1958 Assistant Commissioner's Motion August 26, 1958 Decided by Attorney General September 5, 1958 Exclusion proceedings-Interrogation of alien by examining officer authorized— First preference quota status-May be granted to sole owner of bona fide corporation-petitioner. (1) Absence of express statutory authority does not preclude assignment of examining officer to interrogate applicant în exclusion hearing before special inquiry officer, as other provisions of law and regulations vest authority in the Attorney General and officers designated by him to question applicants for admission. (2) Special inquiry officer is justified in drawing adverse inference from applicant's refusal in an exclusion hearing to respond to interrogation by examining officer assigned to the case. (3) Alien who is the sole owner of a bona fide corporation may qualify as beneficiary of first preference petition filed by same corporation. EXCLUDED: Act of 1952-Section 212 (a) (27) (8 U.S.C. 1182 (a) (27))—Seeks to enter United States to engage in activities prejudicial to public interest, etc. Act of 1952-Section 212 (a) (19) (8 U.S.C. 1182 (a) (19))-Procured visa by fraud or misrepresentation. Act of 1952-Section 212 (a) (20) (8 U.S.C. 1182 (a) (20))—No valid immigrant visa or other valid entry document. BEFORE THE BOARD (June 4, 1958) Discussion: This is an appeal from a decision of a special inquiry officer excluding the alien from admission to the United States. The appeal is sustained. The appellant is a 73-year-old married male, native and last a citizen of Rumania, who first entered the United States as a visitor on September 29, 1946, and has lived in this country during most of the period subsequent thereto. He was admitted for permanent residence on September 26, 1953. About December 1954 he departed from the United States and on December 16, 1955, he applied for admission as a returning resident at which time he presented a reentry permit. After a hearing before a special inquiry officer, which commenced on January 25, 1956, and was completed on July 2, 1957, that officer rendered a decision on December 17, 1957, holding that the appellant was inadmissible on the three grounds mentioned above. It appears from the decision that the special inquiry officer concluded that the three grounds of inadmissibility were sustained on the theory that the appellant had failed to meet the burden of proof because of his "silence"; that, without resort to the adverse inference, the special inquiry officer would not have sustained the first two grounds; and that there was evidence other than the adverse inference which sustained the third charge. A 3-page brief of the examining officer and counsel's printed brief were filed with the special inquiry officer prior to his decision. On February 3, 1958, the Service filed a 138-page brief and on February 6, 1958, counsel filed a supplemental brief. The latter was not a reply brief but was limited to a discussion of the special inquiry officer's decision. The reply of counsel to the last brief filed by the Service appears in the oral argument. The record in this case is unusually long, consisting of a transcript of 4,849 pages and 315 exhibits. However, the only issues which require determination are whether the appellant is inadmissible on any of the grounds mentioned above. Since we conclude that he is not excludable, we do not reach the other issue raised by counsel relating to the possibility of granting discretionary relief. The appellant's case has been the subject of 3 court decisions. A decision of the United States District Court for the District of Columbia on December 7, 1955, declared null and void the revocation by the Service of the appellant's reentry permit without a hearing. A decision of the United States District Court for the Southern District of Florida on February 15, 1956, in United States ex rel. Malaxa v. Savoretti, 139 F. Supp. 143, contained conclusions of law that this appellant was entitled to notice of charges and that the restriction of his liberty and his confinement to the State of Florida, without notice of charges or a hearing and without assigning a basis therefor violates due process, is arbitrary, an abuse of discretion and illegal. Counsel asserts that because the Service still refused to state the charges against the appellant, a suit captioned Malaxa v. Brownell was filed in the United States District Court for the District of Columbia (Civil Action No. 922-56) and on March 2, 1956, that court temporarily restrained the continuation of hearings, until notice of charges should be given to the appellant. The exclusion hearing commenced at Miami, Florida, on January 25, 1956, and continued in that city until February 14, 1956. 562713-61 The remainder of the hearing took place in New York City and in Washington, D.C. Charges were served on March 6, 1956, immediately prior to the resumption of the hearing in New York City on that date. Counsel urges that so much of the exclusion hearing as took place at Miami prior to notice of charges was invalid, and the Service contends that it was valid. Under questioning by counsel, the appellant reaffirmed the testimony he had given at Miami and counsel reoffered in evidence all the exhibits which had been offered in evidence at Miami. Since our conclusion is favorable to the alien, the question of the validity or invalidity of the Miami part of the hearing need not be further discussed. In the first two points in its brief, the Service urges (1) that the exclusion hearing was conducted in accordance with the statutory provisions; (2) that the burden of proof is upon an alien applying for admission to the United States; and (3) that an applicant for admission must answer all pertinent and relevant questions. With respect to the second matter, it is clear, of course, from the Act itself (8 U.S.C. 1361) that the burden of proof is upon a person applying for admission to establish that he is not subject to exclusion. I. The Appellant's "silence" The first and third matters mentioned in the preceding paragraph relate to the assignment of examining officers to this exclusion hearing and the appellant's refusal to answer their questions. The special inquiry officer drew an adverse inference from the appellant's "silence," stating that the appellant's failure to submit to crossexamination was the same as silence. His findings of fact numbered (12) to (17) specifically refer to the appellant's silence. Actually, in the appellant's case it cannot properly be said that he remained silent nor that there was an unqualified refusal to testify. The appellant did, in fact, testify at considerable length. Much of the testimony was in response to questions which had been asked previously by the examining officer at the beginning of the hearing at a time when counsel had stated that the appellant would not answer questions propounded by the examining officer without notice of the charges but would answer questions of the special inquiry officer. After charges were furnished, which counsel contended were inadequate, there was a further refusal by counsel to submit the appellant to cross-examination by the examining officer but a reiteration of willingness to have him answer any questions asked by the special inquiry officer. Counsel specifically indicated his position that the statute requires the special inquiry officer to cross-examine the alien, and he inquired whether the special inquiry officer desired to do so, but that officer declined although he stated that he might ask some |