The opinion of the court was delivered by: DAWSON
This case presents for decision crossmotions for summary judgment going to the merits of an alien's petition for a declaration of the invalidity of a deportation order and an injunction against its enforcement.
The papers raise the issue as to whether a person who was legally admitted to this Country for permanent residence prior to the passage of the Immigration and Nationality Act of 1952
and thereafter applied for exemption from the draft, and thereby became ineligible for citizenship, and later left the United States and entered it after the passage of the Immigration and Nationality Act of 1952, is now deportable on the ground that at the time of his later entry, he was a person ineligible for citizenship and, therefore, should have been excluded.
The following facts appear to exist without substantial controversy:
The petitioner, a native of France, 27 years of age, arrived in this Country as a quota immigrant for permanent residence on October 24, 1950.
On or about March 16, 1951, petitioner registered for the draft with Local Board 13 in the City of New York. Thereafter, he applied at the Office of the Immigration and Naturalization Service for a re-entry permit, and he was advised that he would not be issued a re-entry permit without first obtaining from his local draft board a permit to depart from the United States. He applied to his local draft board for such a permit and was advised that the only way he could obtain it was to file an application as an alien for exemption from military service. Petitioner contends that he wished the re-entry permit so that he could return to France to visit his father who was ill at the time and was expected to die. Petitioner executed SSS Form 130, 'Application By Alien For Relief From Training And Service In The Armed Forces.' The application had on it the following statement: 'I have read the Notice given below, and I understand that I will forever lose my right to become a citizen of the United States, and I may also be prohibited from entry into the United States or its territories or possessions as a result of filing this application.' The application was filed on April 17, 1951. On the same day, he was classified in Class IV-C by his local draft board and was issued the permit to depart. The next day he was issued a reentry permit by the Immigration and Naturalization Service. He thereupon left the United States.
Petitioner returned to the United States on or about April 7, 1952. He next left the United States on August 15, 1953, for a trip to France, having received a re-entry permit from the Immigration and Naturalization Service. He re-entered the United States on or about September 15, 1953. The Immigration and Nationality Act of 1952 became effective on December 24, 1952.
Petitioner, on February 23, 1955, was served with a warrant of arrest in deportation proceedings. On May 10, 1955, an order was entered by the Special Inquiry Officer granting petitioner voluntary departure in lieu of deportation, but holding that he was deportable under the provisions of § 212(a)(22) of the Immigration and Nationality Act on the ground that at the time of his last entry in the United States, he was within one or more classes of aliens not eligible for entry, to wit: aliens who were ineligible to citizenship. An appeal was taken to the Board of Immigration Appeals, and on September 28, 1955, the Board dismissed the appeal. A final order was entered on November 7, 1955, directing him to arrange to depart from the United States on or before December 9, 1955, and directing that should he fail to avail himself of voluntary departure, he should surrender on or before December 12, 1955, in complete readiness for deportation.
Petitioner is married to a United States citizen. He has no children. He is employed as a jewelry designer at a salary of approximately $ 20,000 a year.
There appears to be no dispute that petitioner signed the application for exemption from military service voluntarily and with full knowledge that it would make him ineligible to citizenship in the United States. There is also no dispute that petitioner sought the privilege of immigration into the United States and thereafter used his alien status as a recourse for escaping military duty and now seeks to preserve a right to remain in the United States and to enter and re-enter the United States in the same manner as though he had not refused to perform military service.
The law is clear that a person who secured exemption from service in the military forces by execution of SSS Form 130 became permanently debarred from becoming a citizen of the United States.
There can also be no dispute that under the provisions of the Immigration and Nationality Act of 1952, a person who was not eligible for citizenship is not admissible into the United States as an immigrant for permanent residence.
The Act further provides that an alien who is in the United States may be deported if he was, at the time of his entry, within one or more classes of aliens excludable by the law existing at the time of such entry.