present record is the appellant's failure to comply with the order to report for induction on May 29, 1951. Since this was prior to December 24, 1952, when 8 U.S.C. 1481(a) (10) became effective, it has not been established on the present record that the appellant's case is even within the presumption. In any event, assuming that the presumption is applicable, we adhere to our previous view that the appellant has overcome the presumption by affirmative evidence. The third item on which the Government relies is the appellant's own testimony. No other witnesses testified. The Government's case must stand or fall on the basis of that testimony alone for we have indicated above that the record of conviction and the presumption contained in 8 U.S.C. 1481 (a) (10) would not support a conclusion of expatriation. Since the appellant's own testimony must afford the principal support for the Government's case, we believe that his explanation of what might otherwise be considered adverse factors is entitled to considerable weight.

The appellant made no admission that he remained outside the United States for the purpose of avoiding military service. On the contrary, he testified that he did not depart from or remain outside the United States for the purpose of avoiding military service, and that he had desired a short deferment but intended thereafter to serve. He voluntarily returned to the United States on May 15, 1957, and his counsel had informed officials of the Service and of the Department of Justice of the date and place where he would apply for admission to the United States. He knew that the indictment was still outstanding at that time, and it was not until May 31, 1957, that it was dismissed. He did, in fact, appear before his local board for induction later on that date. In this state of the record, we do not believe that there is evidence that the appellant remained outside the United States for the purpose of avoiding military service. Hence, we hold that it has not been established by clear, convincing and unequivocal evidence that the appellant became expatriated in accordance with the rules laid down in Gonzales v. Landon, 350 U.S. 920 (1955); Nishikawa v. Dulles, 356 U.S. 129; Trop v. Dulles, 356 U.S. 86; and Perez v. Brownell, 356 U.S. 44, the latter three having been decided on March 31, 1958. We adhere to our previous conclusion that the appellant has established that his primary purpose in remaining in Mexico was to fulfill his business commitments on behalf of the Mexican subsidiary of Jacuzzi Brothers.

Order: It is ordered that no change be made in our previous orders in this case.

It is further ordered that, in accordance with the Assistant Com ́missioner's request, this case be certified to the Attorney General pursuant to 8 CFR 3.1 (h) (1) (iii).

BEFORE THE ATTORNEY GENERAL

(February 26, 1959)

This case is before me for review of the decision of the Board of Immigration Appeals pursuant to 8 CFR 3.1 (h) (1) (iii). The issue involved is whether the applicant lost citizenship under section 401(j) of the Nationality Act of 1940 or section 349 (a) (10) of the Immigration and Nationality Act.

Order: After review of the record and of the applicable law and decisions of the United States Supreme Court, it is directed that the order of July 18, 1958, by the Board of Immigration Appeals, sustaining the appeal of J-B-J— and directing his admission to the United States as a citizen, be approved.

MATTER OF Y-M

In DEPORTATION Proceedings

A-3028956

Decided by Board July 29, 1958

Recommendation against deportation prior to December 24, 1952-Not a bar to deportation under section 241(a)(11) of 1952 act.

Nondeportable status created prior to December 24, 1952, through judicial recommendation against deportation of an alien convicted for narcotic violation is ineffective to relieve alien from deportation under provisions of the 1952 act. (NOTE: 6 I. & N. Dec. 505, 579, and 709, overruled.) CHARGE:

Order: Act of 1952-Section 241(a) (11) [8 U.S.C. 1251 (a) (11)]—Drug traffic, conviction: Violation of the Narcotic Drugs Import and Export Act as amended on May 26, 1922.

BEFORE THE BOARD

Discussion: An order entered by the special inquiry officer April 24, 1958, terminated the above-captioned proceeding. The case has been certified for final decision pursuant to 8 CFR 6.1(c). The respondent, a native and national of China, last entered the United States through the port of Seattle, Washington, on May 15, 1937. Deportation is sought under section 241(a)(11) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (11)) in that the respondent was convicted on March 25, 1925, for violation of the Narcotic Drugs Import and Export Act as amended (35 Stat. 614; 21 U.S.C. 171). The court in the order sentencing the respondent stated, "the defendant is not to be deported by reason of this conviction."

The special inquiry officer, relying on precedent decisions by this Board, has terminated the proceedings. As in the instant case, the issue then before us concerned whether a nondeportable status created by a judicial recommendation in a narcotic case prior to the

1 Matter of C- -M- -, A-1776931, 6 I. & N. Dec. 505, Feb. 3, 1955; Matter of W—M——, A-4988228, 6 I. & N. Dec. 579, May 5, 1955; Matter of C— A-5556791, 6 I. & N. Dec. 709, Sept. 1, 1955.

effective date of the Immigration and Nationality Act of 1952 continues to relieve the alien from deportation under the 1952 act.

Originally, we held in Matter of I—, E-25308, 5 I. & N. Dec. 343, that the recommendation of the court as a bar to deportation is confined to aliens who are deportable under section 241 (a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (4)). Thereafter we reversed ourselves because the position we took in Matter of I, supra, was overruled in the cases of Ex parte Robles-Rubio and United States v. O'Rourke. Both of these 2 cases held that the savings clause of the 1952 act was of sufficient breadth to encompass a previous recommendation against deportation and continues to relieve the narcotic offender.

3

Since our last consideration of this issue the Supreme Court has ruled that the savings clause of the 1952 act does not relieve an alien in respondent's position from deportation because the savings clause by its own terms does not apply to situations "otherwise specifically provided" for in the act. The Supreme Court in the Catalanotte case said (p. 694):

Section 241 (a) (11) and § 241 (d) [Immigration and Nationality Act] specifically provide for the deportation of an alien notwithstanding that the offense for which he is being deported occurred prior to the 1952 Act. Section 241 (a) (11) makes an alien deportable if he has "at any time" been convicted of illicit traffic in narcotic drugs. And § 241(d) makes § 241(a)(11) applicable to all aliens covered thereby "notwithstanding *** that the facts * * * occurred prior to the date of enactment of this Act" *** Congress was legislating retrospectively, as it may do, to cover offenses of the kind here involved. The finding by the special inquiry officer that the respondent is not deportable under section 241 (a) (11) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(11)) is hereby reversed.

The special inquiry officer has requested that the case be remanded to afford the respondent an opportunity to apply for suspension of deportation in the event he is found deportable. Under the circumstances, we will remand the case for this purpose. An appropriate order will be entered.

Order: It is directed that the case be remanded to the special inquiry officer for the purpose stated in the foregoing opinion.

2119 F. Supp. 610 (Jan. 21, 1954).

$ 213 F.2d 759 (C.C.A. 8, June 17, 1954, rehearing denied July 14, 1954).

4 Section 405 (a), Immigration and Nationality Act; 8 U.S.C. 1101 note.

5 Lehmann v. Carson, 353 U.S. 685, June 3, 1957; Mulcahey v. Catalanotte, 353 U.S. 692, June 3, 1957.

MATTER OF T

In RESCISSION Proceedings

A-8497160

Decided by Assistant Commissioner July 31, 1958

Rescission of adjustment of status acquired under section 245 of the 1952 actEvidence required-Timely where district director's decision entered within 5-year period after adjustment, although appellate action occurred subsequent to that period.

(1) Adjustment of status acquired pursuant to section 245 of the 1952 act based on marriage to United States citizen and claim to nonquota status under section 101(a) (27) (A) of the act will not be rescinded where evidence fails to establish subject's lack of bona fide intent to enter into valid marital relationship, notwithstanding divorce obtained by citizen spouse on ground of desertion about 2 years later.

(2) Action taken by district director on June 3, 1958, rescinding adjustment of status acquired on June 11, 1953, was timely, although appellate rights preserved for alien prevented final disposition of case within the 5-year period of limitation provided by the statute.

ACTION: Proceedings under section 246(a) of the Immigration and Nationality Act and 8 CFR 246 to revoke adjustment of status granted under section 245 of the act.

BEFORE THE ASSISTANT COMMISSIONER

Discussion: On December 31, 1952, the subject filed application for adjustment of status to that of an alien lawfully admitted for permanent residence pursuant to section 245 of the Immigration and Nationality Act which was granted on June 11, 1953. On June 3, 1958, the District Director at Chicago, Illinois, pursuant to section 246 of the act, ordered that the adjustment of the alien's status be rescinded on the ground that the marriage which formed the basis of the alien's claim to nonquota status under section 101(a) (27) (A) of the act upon which his application was predicated was not a stable, enduring, and bona fide relationship. From that order the alien appealed to the Regional Commissioner, St. Paul, Minnesota, who has certified the case to the Assistant Commissioner, Examinations Division.

Section 246(a) of the act provides that if at any time within 5 years after the status of a person has been otherwise adjusted under