decided: July 2, 1957; As Amended Sept. 18, 1957.
Before CLARK, Chief Judge, and LUMBARD and WATERMAN, Circuit Judges.
Jean Andre Paris, who had entered this country as a quota immigrant for permanent residence in 1950, petitioned the U.S. District Court for the Southern District of New York for a declaration of the invalidity of a deportation order issued against him in 1955. He also sought an injunction against enforcement of the deportation order. Petitioner and respondent each moved for a summary judgment. On the cross-motions the court below denied the petitioner's motion and granted the respondent's motion, thereby dismissing the petition. Petitioner appeals. The opinion below is reported at D.C.S.D.N.Y.1956, 138 F.Supp. 36, where the facts are more fully set forth.
Prior to passage of the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., Paris voluntarily made application on April 17, 1951 to be relieved from liability for training and service in the armed forces, as permitted pursuant to Section 4(a) of the Selective Service Act of 1948, 62 Stat. 604-606.*fn1 In so doing he debarred himself from becoming a citizen of the United States. Ceballos v. Shaughnessy,*fn2 2 Cir., 1956, 229 F.2d 592, affirmed 1957, 352 U.S. 509, 77 S. Ct. 545, 1 L. Ed. 2d 583.
At the time when he applied to be exempted from military service, Paris, as an alien permanent resident of this country, could depart from the United States, visit abroad, and re-enter, legally. Not until the Immigration and Nationality Act of 1952 became law did his subsequent ineligibility to become a citizen affect his freedom in this regard.*fn3
Now the Immigration and Nationality Act of 1952 excludes from admission for permanent residence aliens who are ineligible for citizenship;*fn4 and, of course, provides for the deportation of aliens who at the time of entry are excludable.*fn5 When Paris last departed the United States on August 15, 1953, and then entered this country on September 15, 1953, the Immigration and Nationality Act of 1952 was in effect, and so by Section 212(a)(22) thereof Paris was an excludable alien. He contends, however, that the provisions of Section 405(a),*fn6 the so-called "saving clause," of the 1952 Act apply to him; that, as to him, Section 212(a)(22) is inapplicable; and that he is as non-deportable now as he was in 1952.
But Paris misreads Section 405(a). His pre-existing status of non-deportability would have remained unchanged unless the 1952 Act otherwise specifically provided. Section 212(a)(22) of that Act does so otherwise specifically provide. Cf. Lehmann v. United States, ex rel. Carson, 77 S. Ct. 1022; Mulcahey v. Catalanotte, 77 S. Ct. 1025.
The judgment below is ...