or proceedings and the alien deported from the United States in the manner provided by law on the lodged charge. By letter dated June 9, 1953, counsel for the respondent was supplied with a copy of the hearing record, decision and order of the hearing officer and was informed that the order was final unless an appeal was taken to the Board of Immigration Appeals within five days. No appeal was taken. On July 17, 1953, the respondent and his counsel were notified by mail. that the respondent should arrange to depart from the United States on or before August 19, 1953, and that if he did not avail himself of the voluntary departure privilege extended to him, he would be deported from the United States forthwith pursuant to law. Apparently the respondent failed to depart voluntarily and on August 20, 1953, a warrant of deportation was issued. The warrant of deportation however was erroneously based upon the warrant charge instead of the lodged charge upon which respondent had been ordered deported.

It does not appear that the deportation of the respondent was ever effected. On April 5, 1962, counsel for the respondent filed a motion to reopen the proceedings in order that the respondent might be permitted to make an application for suspension of deportation under section 244 of the Immigration and Nationality Act, as amended, supporting the motion with an affidavit of the respondent to the effect that on February 1, 1962, he married a naturalized citizen of the United States, that he has resided in the United States since 1951, and alleging that if he were deported to Hong Kong, he would suffer unusual hardship.

All the subsections of section 244 (a) of the Immigration and Nationality Act which relate to suspension of deportation, except subsection (1) which is no longer applicable, contain, as a condition precedent to eligibility, the clause that the alien "has not been served with a final order of deportation issued pursuant to this Act in deportation proceedings up to the time of applying to the Attorney General for suspension of deportation." In the instant case the respondent was given voluntary departure with an alternate order of deportation by the special inquiry officer on May 11, 1953, and on June 9, 1953, was informed by the District Director of the order of the special inquiry officer and was given five days after receipt within which to appeal. No appeal was taken.

By regulations, 8 CFR 243.1, an order of deportation, including an alternate order of deportation coupled with an order of voluntary departure, made by the special inquiry officer in proceedings under part 242, shall become final upon (1) dismissal of an appeal by the Board of Immigration Appeals, (2) upon waiver of appeal, or (3) upon expiration of the time alloted for an appeal when no appeal is taken.

The respondent herein failed to appeal and the order of the special inquiry officer became final. Upon his failure to depart as notified by August 19, 1953, a final order of deportation pursuant to the Immigration and Nationality Act had been served upon the respondent prior to the time of the application for suspension of deportation as provided by sections 244(a) (2), (3), (4) and (5) of the Act. The purpose of the requirement therein that the alien shall not have been served with a final order of deportation precludes suspension of deportation where the alien is not eligible for such relief at the time of such final order.1

In the instant case the respondent, who last entered the United States on May 5, 1951, was, at the time of his deportation hearing on May 11, 1953, not eligible for suspension of deportation. A final order of deportation under the Act has been entered. Under the circumstances the respondent is precluded from now applying for suspension of deportation. The appeal from the order of the special inquiry officer denying the motion to reopen will be dismissed.

ORDER: It is ordered that the appeal from the order of the special inquiry officer dated May 14, 1962, denying the motion to reopen the proceedings be and the same is hereby dismissed.

1 Matter of C—L—, 7 I. & N. Dec. 137; Matter of 0—, 7 I. & N. Dec. 457. 2 Notice is taken of the fact that the warrant of deportation was based upon an erroneous ground, to wit, the warrant charge instead of the lodged charge. However, 8 CFR 243.1 and 8 CFR 243.2 illustrate the distinction between a final order of deportation and a warrant of deportation. The error in the warrant of deportation may be corrected administratively.

MATTER OF VILLARBA-REYES

In DEPORTATION Proceedings

A-11481354

Decided by Board July 27, 1962

(1) An alien nonimmigrant enlisted abroad under the Act of June 30, 1950, as amended (Lodge Act), who returns to the United States as a member of the Armed Forces and is honorably discharged after less than five years of service, lacks the lawful admission for permanent residence required to qualify for naturalization under the provisions of that Act.

(2) Respondent's entry as a member of the Armed Forces did not, under section 284, Immigration and Nationality Act, give him any rights or privileges under Title II of that Act not otherwise granted, and, upon return to the United States as a member of the Armed Forces and discharge therefrom, he resumed the immigration status which was his prior to enlistment.

CHARGE:

Order: Act of 1952-Section 241(a) (2) [8 U.S.C. 1251(a)(2)]—Remained

longer.

Respondent is 30 years old, alien, single, a native and citizen of the Philippines. The special inquiry officer found respondent deportable on the above-stated charge, granted respondent voluntary departure, and entered an automatic order of deportation in the event that he fails to depart. Respondent did not depart, and he appeals to this Board.

On or about October 17, 1955 respondent was admitted to the United States at Guam temporarily as a contract laborer. He was employed as a clerk-typist, authorized to remain in the United States in that status until June 30, 1958. On July 17, 1957 respondent was voluntarily inducted into the United States Army, and he served until he was honorably discharged at Fort Monmouth, New Jersey on June 17, 1961. On December 11, 1961 respondent was informed that since the contract under which he was admitted to the United States had expired, he was granted until January 15, 1962 to depart voluntarily. While in the Army respondent was transferred from Guam to Hawaii, and through the United States to Germany. While in Germany

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he reenlisted on June 18, 1959. His Army record (Ex. 3) establishes that while in the service respondent received several commendations and the Good Conduct Medal, and an honorable discharge. Counsel states that respondent volunteered to reenlist at the expiration of his four years of service, but his reenlistment was not accepted, because the Army is now authorized to accept as enlistees only citizens or those who have declared an intention to become naturalized.

Respondent seeks to qualify for the benefits of the Act of June 30, 1950, 64 Stat. 316, as amended by the Act of June 27, 1952, 8 USCA 1440, note, Section 402(e) of the Immigration and Nationality Act.1 Counsel's Notice of Appeal states, "The respondent's reenlistment in the United States Army, while serving in Germany, was within the purview of the Act of June 30, 1950, and conferred upon him the status of one lawfully admitted for permanent residence upon his entry to the United States pursuant to military orders. Having accepted his reenlistment pursuant to the terms of the Act, respondent has a vested right to continue to serve for five years providing his service remained honorable. Upon the conclusion of four years service, the respondent sought to reenlist for a further term of service. The refusal of the military authorities to accept his application for reenlistment was improper and constituted a deprivation of due process of law."

The Lodge Act, as it is referred to, expired only two weeks after respondent's reenlistment in Germany. The "refusal" of the Army to accept respondent for a third two-year period was dictated by the fact that Congress after repeatedly extending the Act, permitted it to expire on July 1, 1959. After that date there could be no further acceptance of enlistments from aliens abroad. The law did not create a “vested right” in any alien to continue to serve in the United States Army. The statute clearly provided that the right to be deemed to have been lawfully admitted to the United States for permanent residence did not accrue to an alien until he fulfilled all the conditions precedent of the statute, including the five or more years of military service.

The terminology and purpose of the Act of June 30, 1950 are so clear that it should not be necessary to cite authority. Several cases have arisen under this and similar statutes. Dela Cena v. United States, 249 F.2d 341 (9th Cir. 1957), held, among other things, that the benefits of the Act were not available to a citizen of the Philippines who served almost three years in the Army in the Philippines and Okinawa, retired, then enlisted, again in the Philippines, as a seaman in the

1 The period of authorized enlistment was extended to June 30, 1957, by the Act of July 12, 1955 (69 Stat. 297), and again extended to July 1, 1959, by the Act of July 24, 1957 (71 Stat. 311).

United States Navy. He entered the United States under naval orders and was still here when he filed a petition for naturalization a year and a half after his enlistment in the Navy. Dela Cena contended that he had been "lawfully admitted to the United States." The court denied the petition, stating that there was an "absence of the Congressional intent that his coming in under Navy orders made him an immigrant admitted for permanent residence." The court made it clear that the appellant must comply with all the requirements of the statute, including an honorable discharge "after completion of five or more years of military service.”

In re Chow's Petition, 146 F. Supp. 437 (S.D.N.Y., 1956), arose under the Act of June 30, 1953, P.L. 86, 83d Congress, 8 U.S.C.A., 1440a, which provided for naturalization of an alien who served 90 days in the Armed Forces between June 24, 1950 and July 1, 1955, and who had been "lawfully admitted to the United States" and had been "physically present within the United States for a single period of at least one year at the time of entering the Armed Forces". Chow was a seaman who was illegally in the United States and enlisted in the United States Army on December 12, 1952 while released on bond by the Immigration and Naturalization Service. He served two years in the United States Army, including service overseas. On his return he was permitted to enter the United States without a visa as part of the Armed Forces and was then honorably discharged. Chow contended that his entry as a member of the United States Army constituted a lawful admission to the United States within the meaning of Public Law 86. The court traced the congressional history of that Act, and put special emphasis on the meaning of the word "entry", as distinguished from the phrase "lawfully admitted." The court asked (p. 490), "Does an alien serviceman who is returning to the United States in the uniform of the Armed Forces enter the United States in either an immigrant or nonimmigrant status?" and then quoted section 284 of the Immigration and Nationality Act in toto. It stated that this section explicitly declared that the privilege of entering in the uniform of the Armed Forces does not confer upon an alien member any rights not otherwise specifically granted by the Immigration and Nationality Act of 1952, and further said, "If it had been intended that

2

* Section 284, I. & N. Act provides: "Nothing contained in this title shall be construed so as to limit, restrict, deny, or affect the coming into or departure from the United States of an alien member of the Armed Forces of the United States who is in the uniform of, or who bears documents identifying him as a member of, such Armed Forces, and who is coming to or departing from the United States under official orders or permit of such Armed Forces: Provided, That nothing contained in this section shall be construed to give to or confer upon any such alien any other privileges, rights, benefits, exemptions, or immunities under this Act, which are not otherwise specifically granted by this Act."