BEFORE THE BOARD (June 11, 1947)
Discussion: Respondent is a 40-year-old native and citizen of Italy. He last entered the United States on April 25, 1940 to work at the Italian pavilion at the New York World's Fair. On May 23, 1941 we found respondent subject to deportation on the warrant charge and ordered his deportation to Italy. On November 25, 1941 we directed that the hearing be reopened to permit respondent to apply for suspension of deportation. The Presiding Inspector and the Commissioner both recommend that the respondent be deported.
Respondent is married to a native-born American citizen. He has two native-born children. Respondent works in a restaurant and earns $65 a week. He has liquid assets amounting to about $3,000. Respondent's wife and children are wholly dependent upon him for support. His deportation would result in a serious economic detriment to them.
Respondent has no criminal record and an independent investigation conducted by the Immigration and Naturalization Service has proved favorable to him. Suspension of deportation was denied by the Presiding Inspector and the Commissioner because of their doubt as to respondent's loyalty to this country and because they thought that respondent had not contributed to the war effort.
According to the Commissioner's decision, three factors contributed to the finding of lack of loyalty and failure to contribute to the war effort. The first factor resulted from respondent's objection on two occasions to serving in the armed forces. The second factor was based on respondent's employment during the war as a pastry man in a restaurant rather than in actual war work. The third factor mentioned by the Commissioner was respondent's purchase of only $400 worth of war bonds.
With respect to respondent's refusal to serve in the armed forces the record establishes that his refusal was based to a large extent on his unwillingness to serve against the country of his nationality. We do not think that respondent's objection to service in the armed forces was an unnatural reaction on his part. While it perhaps indicates that he was not a person of very strong convictions, it certainly does not, in our opinion, prove his lack of loyalty to this country.
Again, we do not think that respondent's employment as a pastry man during the war indicates any lack of loyalty or a failure to participate in the war effort. We are in no position on this record to say that respondent's employment did not contribute to the war effort. Many citizens of this country were employed in so-called civilian work during the past war, and nevertheless we think that they contributed to the war effort. Respondent did what many other loyal citizens and loyal aliens did.
Finally, the Commissioner thinks that respondent's purchase of $400 worth of war bonds was insignificant in view of his assets and at any rate was "purely a profitable venture." This characterization, we think, is rather unfair. On the one hand the Commissioner minimizes respondent's purchases and on the other hand implies that they were motivated by selfish considerations.
We have previously held, a holding that was approved by the Attorney General, that an alien enemy who objects to military service is not necessarily precluded from receiving the grant of suspension of deportation. Matter of W----, 5009176 (approved by the Atty. Gen. May 23, 1947). All the circumstances surrounding the alien's objection to military service must be considered. If these circumstances actually indicate disloyalty to the United States, suspension of deportation should be denied. But when the circumstances do not indicate disloyalty, as we believe is the case here, suspension of deportation should not be denied, and in this connection we must remember that we are not concerned with respondent as an individual but as the head of an American family. His deportation would leave his wife and children destitute and with no visible means of support. We do not think that such a hardship should be visited upon them because of respondent's objection to service in the armed forces. Order: It is directed that the outstanding order and warrant of deportation be withdrawn.
It is further ordered, That deportation of the alien be suspended under the provisions of Section 19 (c) (2) of the Immigration Act of 1917, as amended.
It is further ordered, That if Congress takes no action adverse to the order granting suspension of deportation, and when the required fee is paid, proceedings be canceled.
As the case involves suspension of deportation of an alien pursuant to the provisions of section 19 (c) (2) of the Immigration Act of 1917, as amended, in accordance with the provisions of title 8, section 90.12, Code of Federal Regulations, the Board refers the case to the Attorney General for review of its decision.
BEFORE THE ATTORNEY GENERAL (July 14, 1947)
The issue involved in this case is one of discretionary action. Deportability is not questioned. The alien, of Italian nationality, seeks suspension of deportation because he has dependent upon him a native born wife and child, and his deportation would be to them a serious economic detriment. The Commissioner would deny the application and deport the alien. He concludes that there is doubt concerning the alien's loyalty to this country, evidenced primarily by objection to service in the armed forces of this country when filing Form DSS 304 with his local draft board. The Board of Immigration Appeals, while agreeing if disloyalty of the alien is established, suspension of deportation should be denied, concluded that when considered in light of the entire record objection to military service in this case did not indicate disloyalty.
Objection to service in the armed forces of this country by an alien of enemy nationality when executing and filing with his draft board Form DSS 304 does not necessarily require a finding of lack of loyalty. It has been so held in prior cases where suspension of deportation was authorized by me. It, however, raises a prima facie objection to the grant of any discretionary relief which must be overcome by strong affirmative factors indicating loyalty and attachment to this government. In the case before me, the alien twice, once in 1943 and again 1944, objected to service in the United States armed forces. The reason he gives is that he was in the United States on a temporary basis and was under a deportation proceeding. Against this explanation stands the fact that the alien had married a United States citizen in this country in 1941. He asserts that after his child was born in 1944 he was willing to serve in the army. Significantly, however, the alien did not communicate this information to his draft board. In any event, it was a belated change of heart. No strong affirmative factors are in this record which modify the unfavorable inference to be drawn from these facts. It is concluded, therefore, that discretionary relief is not justified.
It is ordered that the order of the Board of Immigration Appeals authorizing suspension of deportation be reversed and that the alien be deported in accordance with the Commissioner's order of April 28, 1947.
BEFORE THE ATTORNEY GENERAL (October 9, 1947)
Upon reconsideration, my order of July 14, 1947 and the warrant of deportation predicated thereon are withdrawn and the decision and order of the Board of Immigration Appeals of June 11, 1947 are approved.