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Interim Decision # 1310

MATTER OF LOUIE

In DEPORTATION Proceedings

A-13681449

Decided by Board December 12, 1963

Service in the U.S. Navy for 1 year, 9 months, and 20 days does not satisfy the minimum period of 24 months in active-duty status required by section 244 (b), Immigration and Nationality Act, as amended, notwithstanding the same period of service is considered by the Department of Navy to have satisfied the requirements of 2 years of service on active obligated duty for which inducted.

CHARGE:

Order: Act of 1952-Section 241 (a)(2) [8 U.S.C. 1251(a) (2)]—Entered without inspection.

The case is before us by certification. The special inquiry officer found respondent deportable upon the charge stated above and denied his application for suspension of deportation. The issue is whether the respondent is eligible for suspension of deportation.

Section 244 (a) (1) of the Immigration and Nationality Act under which application is made for suspension of deportation has a requirement that the applicant have been physically present for a continuous period of seven years in the United States prior to becoming deportable; however an exception to this requirement is made for one who "has served for a minimum period of twenty-four months in active duty status of the Armed Forces of the United States ***(section 244(b) of the Immigration and Nationality Act, 8 U.S.C. 1254(b) (Supp. IV))." The issue is whether the respondent who actually spent one year nine months and twenty days on active duty with the Navy is within the exception.

Respondent a 32-year-old married male, a native and national of China, came to the United States in 1951 to join his father who has been a resident of the United States since 1913. Respondent gained admission upon a false claim to United States citizenship. He made short visits to Hong Hong in 1960 and 1962.

Respondent who was inducted into the United States Navy on November 17, 1955, for two years of active service was transferred to the

Reserves on September 6, 1957 after having served one year nine months and twenty days. He was obligated to serve in the Reserves until November 16, 1961 but failed to perform any Reserve obligation.

The official Armed Forces Report of Transfer received by respondent from the Navy reveals that he was inducted for two years of service and that he served one year nine months and twenty days. A letter dated December 20, 1962, from the Department of the Navy, Bureau of Naval Personnel, at Washington, D.C., reveals that under certain circumstances, enlisted personnel may be separated three months or less prior to the normal date of expiration of active obligated service, provided such early separation is in the best interest of the government and that such service is considered to have satisfied the requirement that the person serve two years on active obligated duty. The respondent is, therefore, considered by the Navy to have fulfilled his obligation to serve on active duty for a period of twenty-four months toward his Naval Reserve obligations (Ex. 5).

The special inquiry officer stated that despite the Navy's view of the respondent's service, the fact was respondent had not served the full twenty-four months required by the statute; he therefore did not come within the exception created by the statute. Counsel believes that the decision of the Department of the Navy that respondent has served twenty-four months on active duty should be controlling as to the length of the respondent's service. He points out that the immigration law expressly provides in some instances that the decision of branches of the Department of Defense are conclusive as to the existence of service. He points out that the congressional history of the legislation reveals that it was desired to benefit aliens who had served honorably for a stated period of time in the Armed Forces of the United States. He believes that in fixing the twenty-four month period of active duty, Congress was referring to a minimum period of service, and he points out that the respondent has satisfactorily completed his minimum period of service. In the event that the decision is adverse to the respondent, counsel requests that the decision be certified to the Attorney General for a final administrative order. We believe the special inquiry officer has ruled properly. The law makes eligibility for relief dependent on proof that an alien has served at least 24 months in an active duty status. Respondent has not served this minimum period. The law makes no exception; it does not provide that acceptance of a lesser period of service by the Department of Defense shall constitute a waiver of the law's requirement. It is clear, therefore, that respondent who has served less than twentyfour months has failed to establish his eligibility for relief. While it may well be that Congress did not envision the situation before us, and would have made provision to grant relief if it had, the fact re

mains that there is no authority to accept less than proof of at least twenty-four months of active duty service.

There is no procedure for the certification of a case to the Attorney General at the request of an attorney (8 CFR 3.1 (h)). We do not believe the case merits the attention of the Attorney General. ORDER: It is ordered that no change be made in the order of the special inquiry officer.

MATTER OF PIKKARAINEN

In DEPORTATION Proceedings

A-6705794

Decided by Board December 10, 1963

(1) An illegitimate child could not derive U.S. citizenship under section 314 of the Nationality Act of 1940.

(2) Although both his admission to the United States for permanent residence and his mother's naturalization as a U.S. citizen occurred while he was under 16 years of age, an illegitimate child born January 1, 1932 in Finland, did not derive U.S. citizenship under section 321(a)(3) of the Immigration and Nationality Act, since he was over 16 years of age on December 24, 1952, the effective date of the Act.

(3) Since conviction within the meaning of section 241 (a) (4), Immigration and Nationality Act, exists when the following elements are present: (1) if there has been a judicial finding of guilt, (2) the court takes action which brings the case in the category of those which are pending for consideration by the court-the court orders that the defendant be fined or incarcerated or the court suspends the imposition of sentence, and (3) the action of the court is considered a conviction by the state court for at least some purpose, an alien convicted on a plea of guilty of the crime of simple robbery by a Colorado court which ordered imposition of sentence suspended and placed him on probation for 5 years has been convicted.

CHARGE:

Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a) (4)]-Convicted of two crimes after entry, to wit, simple robbery and statutory rape.

The case comes forward on appeal from the decision of the special inquiry officer dated May 23, 1963 ordering respondent deported to Finland on the charge contained in the order to show cause.

The first issue is that of alienage. The respondent was born out of wedlock on January 1, 1932 in Finland. The respondent's mother was naturalized on January 15, 1945 in the United States District Court at New York. The respondent was admitted to the United States for permanent residence on June 16, 1947. At the time of his admission to the United States he was under 16 years of age, being 15 years and five months old. Since the mother's naturalization and the

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respondent's lawful admission for permanent residence occurred subsequent to the effective date of the Nationality Act of 1940 on January 13, 1941, the respondent could not acquire United States citizenship under the provisions of section 2172 of the Revised Statutes of the United States.

Counsel urges that respondent is a United States citizen under section 314(a) or section 314(b) of the Nationality Act of 1940 or, in any event, under section 321(a)(3) of the Immigration and Nationality Act. Section 314 of the Nationality Act of 1940 provides that a child born outside the United States of alient parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen upon fulfillment of the following conditions:

(a) The naturalization of both parents; or

(b) The naturalization of the surviving parent if one of the parents is deceased;

* * *

(c) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents; and if(d) Such naturalization takes place while said child is under the age of eighteen years; and

(e) Such child *** thereafter begins to reside permanently in the United States while under the age of eighteen years.

Counsel concedes that the respondent is an illegitimate child and that there has never been any adjudication of paternity. He argues that in this case the mother is to be considered as the parent or that there should be a presumption of death of the putative father and that the surviving parent is the mother. He cites several cases dealing with legitimate children where the surviving parent was divorced with the right of custody which was sufficient for derivation of citizenship and another case involving a widowed mother who became a citizen while her legitimate child was a minor residing in the United States.1

It may be pointed out that the cited cases involve legitimate children and there is no evidence in the instant case that the mother is the surviving parent or that the putative father has died. In the report of the Committee on the Judiciary pursuant to Senate Resolution 137 it was recognized that under the 1940 Act a child born out of wedlock and never legitimated could not derive United States citizenship either through the naturalization of the putative father or through his

1

1 Petition of Bonsky, 77 F. Supp. 832 (S.D. Mich., 1948) ; In re Graf, 277 F. 969 (D. Md., 1922).

2 Matter of D-W—M—, 9 I. & N. Dec. 633 involved an adopted child and is not pertinent.

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