Excludability — No visa charge is applicable to person born in the United States who refuses to testify concerning circumstances which formed basis for his conviction of draft evasion.
A determination of a claim to citizenship of one arriving at a port in the United States is for the Attorney General by the specific provisions of sections 235 (a) and (b) of the Immigration and Nationality Act. The instant appellant stood upon his proof of birth in the United States and remained silent when questioned concerning whether he departed from the United States to avoid military service. In view of his conviction on a charge of draft evasion, such inquiry was pertinent and material and his refusal to testify made a determination as to expatriation impossible. Therefore, it is proper to conclude that he is an immigrant not in possession of an immigrant visa and his exclusion was properly ordered under section 212 (a) (20) of the act.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (20) — No immigrant visa ( 8 U.S.C.A. 1182 (a) (20)).
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of the special inquiry officer dated April 9, 1956, finding the appellant inadmissible on the ground stated above. The special inquiry officer has also found the appellant inadmissible under section 235 (a) of the Immigration and Nationality Act but this ground does not appear to constitute a proper ground of exclusion and does not appear in section 212 (a) which sets forth the various grounds of exclusion from admission into the United States.
The record establishes that the appellant was born at Oroville, California, on July 31, 1929. His parents were both born in California. He testified that he registered under the Selective Training and Service Act in the United States but never received a summons or call from his draft board to appear for induction into the armed forces. The appellant departed to Mexico in October 1952, and was brought to the immigration office at the International Bridge, Brownsville, Texas, by officials of the Government of Mexico. He was immediately paroled into the United States in the custody of Federal officers for prosecution on draft evasion charges.
On October 9, 1953, in the United States District Court for the Northern District of California, Northern Division, the appellant was convicted, on his plea of guilty, of violation of Title 50, U.S.C.A., section 462 (a) (Selective Service Act of 1948), in that on or about March 14, 1951, at Oroville, California, defendant did willfully fail and neglect to report for induction, and was sentenced to imprisonment for a period of 42 months. After his release from imprisonment, he was given a continued hearing in the exclusion proceedings which had been commenced on April 29, 1953. During the course of these proceedings, the appellant refused to answer questions concerning his reasons for departing to Mexico in October 1952, and upon advice of counsel remained mute when asked whether he left the United States at that time to avoid service in the Armed Forces of the United States.
Section 235 (a) of the Immigration and Nationality Act, 8 U.S.C. 1225 (a), provides that the Attorney General and any immigration officer, including special inquiry officers, shall have power to administer oaths and to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, pass through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of the Immigration and Nationality Act and the administration of the Service. It is further provided that any person coming into the United States may be required to state under oath the purpose or purposes for which he comes, the length of time he intends to remain in the United States, whether or not he intends to remain in the United States permanently, and such other items of information as will aid the immigration officer in determining whether he is a national of the United States or an alien and, if the latter, whether he belongs to any of the excluded classes enumerated in section 212. Section 235 (b), 8 U.S.C. 1225 (b), provides that every alien who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer.
A determination of a claim to citizenship of one arriving at a port in the United States is for the Attorney General by the specific provisions of sections 235 (a) and (b) of the Immigration and Nationality Act. In view of his immediate parole for the purpose of prosecution on draft evasion charges and his conviction for willful failure to report for induction, the appellant was a person whom the special inquiry officer "suspected to be an alien" attempting to enter the United States.
Ng Yip Yee v. Barber, 210 F. (2d) 613 (C.A. 9), cert. den. 347 U.S. 988.
The appellant has stood upon his proof of birth in the United States and has remained silent when questioned concerning whether he departed from the United States to avoid military service. In view of his conviction on a charge of draft evasion, such inquiry was both pertinent and material. It would be an absurdity to hold that the immigration authorities must establish alienage as a fact before they can compel the introduction of evidence necessary to determine whether alienage does or does not exist. The problem is one of an orderly search for the truth. The administrative power to exclude or deport depends upon a showing of alienage, but the immigration authorities have the power to determine this fact initially.
In re Wing, 124 F. Supp. 492 (1954), citing Florentine v. Landon, 206 F. (2d) 870; Lee Fong Fook v. Wixon, 170 F. (2d) 245; United States v. Sing Tuck, 194 U.S. 161.
The facts upon which the appellant's status depends were in the first instance for the administrative determination of the special inquiry officer. He was empowered to determine those facts like any others pertinent to a preliminary decision on the question of its jurisdiction. Section 291 of the Immigration and Nationality Act, 8 U.S.C. 1361, provides that whenever any person makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is not subject to exclusion under any provision of the Immigration and Nationality Act. The appellant cannot be permitted to defeat the clear mandate of sections 235 and 291 of the Immigration and Nationality Act by remaining silent in connection with his application for admission but must answer questions which are material and relevant to the enforcement of the act and in connection with which he has the burden of proving his admissibility. As pointed out by the special inquiry officer, the refusal of the appellant to testify makes impossible a determination as to expatriation and no decision is reached on that point. His forced return from Mexico and conviction raise at least an inference of expatriation. However, in view of his silence, it is proper to conclude that he is an immigrant not in possession of an immigrant visa and his exclusion was properly ordered upon that ground. Should the appellant suffer a change of heart and desire to testify in answer to the questions put by the special inquiry officer, he may submit a motion to reopen.
United States ex rel. Lapides v. Watkins, 165 F. (2d) 1017 (C.C.A. 2, 1948).
The brief filed by counsel has been noted. It concerns itself mainly with the burden of proof in connection with expatriation. As has been pointed out, the question of expatriation is presently not before us.
Order: It is ordered that the appeal be and the same is hereby dismissed.