DIA t 1ER OF G 

In DEPORTATION Proceedings 

A-10955229 

Decided by Board April 24, 1958 

Entry—Under military orders—Failure to comply with conditions of enlistment 

under Act of June 30, 1990, am amended, deprivon alien of right to remain in 

U.S.—Deportable on "no visa" charge. 

(1) Alien dishonorably discharged from United States Armed Forces prior to 

completing 5 years' service is not entitled to claim lawful residence in the 

United States on basis of foreign enlistment pursuant to Act of June 30, 

1950, as amended, and subsequent entry as member of Armed Forces. 

(2) Such alien, having declined opportunity to depart voluntarily from the 

united hectonno deportable on charge that he entered the United States 

as an immigrant not in possession of an immigrant visa. 

CHARGE: 

Order: Act of 1952—Section 941(a) (I) to u.s,c. 1231(ii) (1))—Fixcluaoble 

at entry—Immigrant—No valid visa. 

BEFORE THE BOARD 

Discussion: This case is before us on appeal from a decision 

entered by the special inquiry officer on January 9, 1958, directing 

that the rorpondent be deported from the United States on the 

charge contained in the order to show cause. Exception is taken 

to the finding of deportability. 

The respondent is a 30-year-old native of Bulgaria who alleges 

that he is now stateless. His only entry into the United States occurred at the port of New York on November 9, 1955, as a member 

of the Armed Forces of the United States. He was not in possession of an immigrant visa. He testified that he entered this country 

pursuant to a law which provided that if he served honorably in the 

army for 5 years, he could obtain citizenship. He intended to stay 

in the United States permanently. He admitted that he received an 

undesirable discharge from the Armed Forces of the United States, 

effective January 9, 1958, pri6r to completing 5 years' service. He 

also admitted that he was offered the opportunity to depart from 

the United States voluntarily but that he declined to do so. At the 

hearing he also declined to apply for voluntary departure and 

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stated: "I do not wish to leave the country on my own. If they 

want me they can deport me!' 

The respondent apparently joined the United States Army under 

the provisions of the Act of June 30, 1950 (Public Law 597, 81st 

Congress, 2d Session) as amended by section 402(e) of the Immigration and Nationality Act. Such amendment appears as a note to 

8 U.S.C. 1440 and provides in pertinent part that: 

• • • An alien enlisted or reenlisted pursuant to the provisions of this Act 

who subsequently enters the United States * * * pursuant to military orders 

shall, if otherwise qualified for citizenship, and after completion of five or 

more years of military service, if honorably discharged therefrom, be deemed 

to have been lawfully admitted to the United States for permanent residence 

within the meaning of such section 329(a) [Immigration and Nationality Act]. 

Counsel takes issue with the statement of the special inquiry of:Geer that since the respondent does not fall within any of the provisions of section 101(a) (15) of the Immigration and Nationality 

Act the respondent must, pursuant to section 214(b) of said act, be 

presumed to be an immigrant at the time of entry in November 1955. 

Counsel contends that the respondent entered under special legislation, neither as a nonimmigrant nor an immigrant. It is further 

contended by counsel that although the respondent did not serve for 

5 years in the Armed Forces of the United States and did not receive an honorable discharge, the respondent's entry into the United 

States was lawful and under special legislation and that the respondent is, therefore, not deportable. 

Section 284 of the Immigration and Nationality Act, which provides for the admission into the United States of alien members of 

the armed forces, also provides that nothing contained in such 

section shall be construed to give to or confer upon any such alien 

any other privileges, rights, benefits, prPmptinmx, or immunities under the act which are not otherwise specifically granted by the act. 

Respondent's admission into the United States was not for permanent residence. He has neither the 5 years of military service nor 

the honorable discharge required under the provisions of the act 

of June 30, 1950, as amended by section 402(e) of the Immigration and Nationality Act and, hence, has not acquired legal residence status (Dart Cena v. United States, 249 F.2d 341, C. 4. 9, 

1957). As he has not met the conditions which would have changed 

his admission to that of a. lawful admission for permanent residence, 

ho becomes subject to deportation am an immigrant who was not in 

possession of an immigrant visa at the time of entry. He has been 

offered the opportunity to depart voluntarily but has declined to do 

so. Under the circumstances, it is concluded that he is subject to deportation on the charge contained in the order to show cause. 

The contentions raised in this case by counsel are somewhat 

similar to the contentions rejected by the court in United States ex 

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rel. Sommerkamp v. Zimmerman, 178 F.2d 645 (C.A. 3, 1949). 

There, a native of Germany was brought to the United States in 1942 

from Guatemala for intermnent. In 1946, after the end of the war, 

a warrant of arrest was issued by the Service charging that Sommerkamp was deportable under the Immigration Act of 1924 as an 

immigrant not in possession of the proper documents at the time 

of entry. After he failed to comply with an order of the Board 

of Immigration Appeals granting him voluntary departure, he was 

taken into custody by the Service in December 1948 for deportation. It was the contention of Sommerkamp that since he was 

brought into the L'uitc,1 States involuntarily he was not an immigrant within the meaning of the Immigration Act of 1924 and was, 

therefore, not subject to deportation under that Act. The court 

held that after the time permitter) for voluntary departure had expired the presence of Sommerkamp in the United States was voluntary, that he had made "an entry" within the meaning of the basic 

immigration act, and that he could be deported as an "immigrant" 

who had not satisfied the requirements of the law. 

In view of our finding that the special inquiry officer has correctly 

concluded that the respondent is subject to deportation on the 

charge contained in the order to show cause, the appeal Will be 

dismissed. 

Order: It is ordered that the appeal be and the same is hereby 

dismissed. 

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