MATrlat OF Et—E-- 

In EXCLUSION Proceedings 

A-11987584 

Board Decision November 14, 1961 

Commissioner's Request for Certification December 1, 1961 

Board Decision March 13, 1962 

Attorney General Decision June 18, 1962 

Excludability—Section 212(a)(22), 1952 act—Ineligible to citizenship—Burden 

of proof for one claiming "Moser" exception. 

(1) A MDricau national was classified as available for military service by his 

local draft board; sought advice from, and was informed by, the Mexican 

Consulate that he did not have to serve; was advised by the Consulate to 

file DSS Form 301 which was filled out at the Consulate and filed by him 

with the local draft board. He did not read the contents of DSS Form 301, 

nor were the consequences tnereor made Known to him. Has; The alien 

was unaware that he would become ineligible to citizenship by signing the, 

DSS Form 301, and did not, therefore, knowingly and intentionally waive 

his rights to citizenship within the doctrine of Moser v. United States, 341 

U.S. 41. 

(2) Attorney General's decision states: "In any event, I do not understand 

the Board's decision to establish a rule of proof for other cases, nor does 

this decision affirming it do so." 

Excnunent.n: Act of 1952—Section 212(a) (22) [8 II.S.C. 1182(a) (22)F—ineligible to citizenship. 

BEFORE THE BOARD 

(November 14, 1961) 

DISCUSSION: On May 22, 1961, we sustained the alien's appeal 

and directed that he be admitted as a returning resident. The ease 

is now before us pursuant to a motion for reconsideration dated 

June 9, 1961, which has been filed by the Service. 

The appli cant. is 52-year-nld married male, native and citizen of 

Mexico, who was admitted to the United States for permanent residence on March 31, 1960. On August 6, 1960, after an absence of a 

few hours in Mexico, he applied for admission as a returning resident and was excluded by a special inquiry officer on the ground 

stated above. He had previously resided in the United States from 

720 
about 1922 until about November 1942. On May 25, 1942, he executed DSS Form 301, and the local draft board exempted him from 

service by reason of alienage and classified him as IV—C on May 27, 

1942. He was reclassified as I—A on August 4, 1943. 

In our previous order, we stated that it was unnecessary to discuss certain contentions of counsel in view of our conclusion. Since 

two of counsel's contentions would require a ruling before we could 

grant the request of the Service that the appeal be dismissed, these 

contentions will be discussed later herein. However, the principal 

issue in this case is whether the applicant is ineligible to citizenship 

under section 315 of the Immigration and Nationality Act of 1952 

(8 U.S.C. 1426). 

We have carefully reviewed the entire record. In our previous 

order, we summarized the applicant's testimony concerning the circumstances surrounding the execution of the application for exemption from military service. He testified that, upon receiving a notice 

to appear for a medical examination, he went to the Mexican Consulate for advice and was informed that, he was not obligated to 

serve in the Armed Forces of the United States and that he should 

obtain DSS Form 301 from his draft board. He obtained the Form 

and took it to the Mexican Consulate where it was filled out and he 

then signed the Form before an employee of the draft board. He 

was positive in his testimony that he did not read the Form; that no 

one at the Mexican Consulate or at the draft board informed him 

that the signing of the application would bar him from becoming a 

citizen of the United Str:tes; and that no statement whatever was 

made to him that this application would have any effect upon his 

eligibility for citizenship. He testified that he would not have signed 

the Form if he had known that such action would bar him from 

becoming a citizen. 

It was stated in our previous order that the applicant would be 

ineligible to citizenship under 8 U.S.C. • 1426 unless his case was 

within the rule stated in Moser v. United States, 341 U.S. 41 (1951), 

and we reached the conclusion that the case was within the rationale 

of that decision. In its motion, the Service seeks to distinguish the 

applicant's case from that of Moser by saying, "Moser went to his 

consulate and was specifically told that he would not become ineligible upon signing." This is not correct. The one statement along 

that line which the Swiss Legation made to Moser in its letter of 

February 18, 1944, was: "Please note that, through filing of DSS 

Form 301, revised, you will not waive your right to apply for American citizenship pipe's. The final decision regarding your naturalization will remain solely with the competent naturalization' courts." 

The Service cited Kahook v. Johnson, 273 F.2d 413 (C.A. 5, 1960), 

which will be discussed later, and four district court decisions. It 

721 

554377-63 47 
was stated that these decisions plainly indicate that the applicant's 

case is distinguishable from Moser and that "the great weight of 

legal authority in this area has not been followed by the decision of 

the Board." Actually, whatever legal question, formerly existed was 

authoritatively answered by the Supreme Court's, decision in the 

Moser case. Since that time, the inquiry is whether or hot the facts 

of the particular case bring it within the Moser rule. The four district court decisions cited by the Service are Petition of Miranda, 

111 F. Supp. 481 (RD. N.Y., 1953) ; In re Pinto's Naturalization, 

152 F. Supp. 892 (S.D. N.Y., 1957) ; In re Calvo's Petition, 161 F. 

Supp. 761 (D.C. N.J. 1958) ; and Petition for Naturalization of 

Rodrigues, 193 F Supp. 150 (N.D. Cal., 1961). In each of these, it 

was held that the alien was not within the rule set forth in the 

Moser case and that he was ineligible to citizenship A decision to 

the same effect is Keil v. United States, 291 F.2d 268 (C.A. 9, 1961). . 

A contrary conclusion to the effect that the alien was within the 

Moser rule was reached in each of the following cases; Mccaaclo v. 

McGrath, 193 F.2d 706 (C.A. D.C., 1951), cert. den. 342 U.S. 948; 

Petition of Bering, 112 F. Supp. 837 (E.D. N.Y., 1953) ; Petition of 

Sally, 151 F. Supp. 888 (S.D. N.Y., 1957) ; In re Planas, 152 F. 

Supp. 456 (D.C. N.J., 1957) ; and In re Bouchage's Petition, 177 F. 

Supp. 887, 897 (S.D. N.Y., 1959). Machado' v. McGrath, supra, 

which was decided a few months after Moser, differs factually in 

some respects from the applicant's case, but it shows that the Moser 

rule is not limited to precisely identical factual situations. We believe it is clear from the foregoing that no legal question is involved 

in this applicant's case. Instead, there is only the question of 

whether, under the facts of his case, he does or does not come within 

the legal rule enunciated in the Moser case. If he is within that rule, 

then the DSS Form 301 filed on May 25, 1942, does not bar him 

from citizenship. 

In Moser v. United States, supra, at page 47, the court said: "Petitioner did not knowingly and intentionally waive his rights to citizenship. * * * he never had an opportunity to make an intelligent 

election between the diametrically opposed courses * * *. Considering all the circumstances of the case, we think that to bar petitioner, 

nothing less than an intelligent waiver is required by elementary 

fairness." In three of the cases in which the courts held that the 

aliens were ineligible to citizenship (the Pinto and Rodrigues cases, 

cited by the Service, and the Keil case), the courts made statements, 

nevertheless, to the effect that the Moser rule requires that the alien, 

when executing the application for exemption, must knowingly and 

intelligently waive his right to citizenship in order to be barred from 

naturalization. 

722 
In its motion, the Service quoted from the decision in Kahook v. 

Johns-on, supra, and a part of the quotation is as follows: "So long 

as it is not disputed on the record that he knew the effect of the 

request, that is, that he would acquire an exemption from military 

duty, it is not necessary that he also know that by obtaining such 

exemption he was thereafter subjecting himself to the disabilities 

such action entailed." We understand that the Service asserts that 

the Ka71,eolc decision huld,',; that, if an alien knows that he will secure 

exemption from military service by executing DSS Form 301, it is 

unnecessary that he must also know that he will be ineligible to citizenship if he executes the Form. That, of course, appears to be the 

tenor of the statement we have quoted. However, the Service indicated that it was not relying on this principle. This statement in 

the Kahook decision was dictum. In any event, it does not correctly state the law since it is contrary to the Supreme Court's decision in the Moser case. The Kahook decision does not mention the 

Moser case, although it is probable that Kahook was attempting to 

bring himself within that rule. 

Kahook contended that he was unable to secure the. production of 

certain documents in possession of the Immigration authorities which 

would have disclosed that he could not read, write or speak English 

when he executed the DSS Form 301. The quotation by the Service 

from the Kahook decision includes language to the effect that, notwithstanding his inability to read or speak English, it did not follow 

that Kahook did not voluntarily and intelligently sign DSS Form 

301. In other words, there was no testimony or evidence on the part 

of Kahook that he. did not understand the effect and purpose of the 

DSS Form 301 when he signed it and, even if he could not read or 

speak English, this would not exclude the possibility that the matter 

might have been explained to him at the time and that he might 

have been aware of the result which would follow from the execution of the DSS Form 301. 

The Service stated that this applicant attended public schools at 

Nogales, Arizona, from 1922 to 1927 through the seventh grade, and 

that only English was taught in these schools. It is not clear 

whether he attended through the seventh grade or to the seventh 

grade. The applicant had no English schooling until he came to the 

United States in February 1922 at the age of 13. Thereafter he 

attended school for 5 or 6 years until he was about 18 or 19 years 

old. Apparently he left school about 1927 or 1928, and it would seem 

that whatever knowledge of English lie had acquired deteriorated 

thereafter since we observed that the present hearing was conducted 

in Spanish through an interpreter. In our previous order, we had 

considered the applicant's attendance at United States public schools 

723 
and we said that we had no reason to doubt his testimony that his 

knowledge of English was very limited in 1942, as well as at the 

present time. We are still of the same opinion. 

Although we accept the applicant's testimony that he had a very 

limited knowledge of English in 1942, the important consideration 

is not his ability to understand or read English but whether he was 

or was not aware of the two alternatives. These were described in 

Moser as "a choice of exemption and no citizenship or no exemption 

and citizenship." We believe it is clear from the Moser decision, as 

well as the cases decided subsequently, that an alien must have knowingly and intentionally waived his rights to citizenship and must 

have had the opportunity of making an intelligent election between 

the two courses. In this applicant's case, it is apparent that he was 

aware that he was claiming exemption from military service on the 

ground of alienage. However, he testified that he did not read DSS 

Form 301 and that no one informed him that the signing of this 

Form would result in making him ineligible, to citizenship. Hence, 

there is in this case ohly the factual question of whether the applicant was or was not aware on May 25, 1942, that he would become 

ineligible to citizenship if he signed DSS Form 301. Obviously the 

Service believes that he was aware of this fact. When we previously 

considered this case, we weighed the applicant's testimony against 

his interest in the outcome of the proceeding. We note that the applicant made no attempt to conceal his prior residence in the United 

States but specifically stated in his application for immigrant visa 

that he had resided at Nogales, Arizona, from February 8, 1922, 

until November 1942, which indicated that he had been in this country at a, time when he vas subject to the provisions of the Selective 

Training and Service Act of 1940, as amended. In our prior order, 

we concluded that the applicant was not aware when he executed 

DSS Form 301 that such action would debar him from citizenship. 

After careful consideration of the contentions and argument in the 

motion of the Service, we are still of the same opinion, and we hold 

that the applicant's case is within the rule stated in Moser and that 

he is not excludable under 8 U.S.C. 1182(a) (22). 

In its motion, the Service quoted section 315 (b) of the Immigration and Nationality Act and stated that the alien had attacked the 

record which the statute intended to be conclusive. There is no merit 

in this contention. Section 315(b) makes the records of the Selective 

Service System conclusive as to whether an alien was relieved from 

military service on the ground of alienage. This applicant was relieved on that ground and he does not contend otherwise. There is 

no other fartor which is made, conclusive by section 315(b), and it 

has no application, therefore, to the question involved in this applicant's case. 

724 
The Service stated at page 5 of its motion : "The significance of 

this appellant's departure to Mexico in November 1942, after 20 

years of residence in this country, and his letter to the Selective 

Service written on August 24, 1943, stating that he no longer owed 

any allegiance to the United States, was not willing to serve in the 

United States Army, and understood the consequences of this decision, cannot be overlooked." Apparently the Service is in error in 

asserting that these, statements are contained in the applicant's letter 

of August 24, 1943, to his local draft board. That letter is not part 

of the present record. However, Mr. 0—'s letter of October 6, 1960, 

(part of Exh. 6) mentions the applicant's letter of August 24, 1913, 

but indicates only that his letter informed the draft board that he 

was residing in Mexico and that under the circumstances he considered himself exempt from complying with the Selective Service law. 

The remarks, asserted by the Service to be in the applicant's letter of August 24, 1943, actually appear in his statement to a special 

agent of the Federal Bureau of Investigation on September 6, 1943. 

When a copy of this statement was exhibited to the applicant, he 

said that he preferred to have it translated in Spanish; he then 

stated that the fifth paragraph (which contains the remarks about 

not owing allegiance, unwillingness to serve in the United States 

Army, and understanding the consequences) was not in accordance 

with his statements to the special agent; and that the statement was 

not translated to him at the time of the interview. Counsel objected 

at the bearing- to the introduction in evidence of Exhibit 7 and also 

referred to this matter in his brief. Exhibit 7 contains only typed 

signatures of the applicant and the special agent of the Federal 

Bureau of Investigation and there is a statement by the special inquiry officer that it is a true copy from the contents in the Service 

file. There is nothing to show why the statement in the Service file 

was not introduced into evidence. Since our decision is in favor of 

the applicant, we need not determine whether the copy of the statement was or was not admissible. In any event, we do not regard the 

applicant's statement of September 6, 1943, as being particularly 

material since it contains no statement as to whether, even at that 

time, the applicant was aware that the signing of DSS Form 301 

rendered him ineligible to citizenship. In addition, the important 

consideration is whether the applicant was aware on May 25, 1942, 

that he would be ineligible to citizenship if he signed the DSS 

Form 301. 

The applicant's departure to Mexico in November 1942 and the 

information in the statement of September 0, 1944 had been con 

sidered by us when we rendered the decision of May 22, 1961, and 

we do not regard these matters as constituting a basis for altering 

our prior determination. The applicant was exempted from military 

725 
service on the ground of alienage on May 27, 1942, and he was not 

reclassified I—A until August 4, 1943. It seems apparent to us that 

his departure from the United States had nothing to do with his 

liability for military service. He had left his employment in the 

United States on November 23, 1942, upon the death of his mother 

and resided and worked in Mexico from that time until March 31, 

1960, when he was admitted to the United States for permanent 

residence. 

Insofar as concerns that part of the statement quoted from the 

Service motion which is to the effect that the applicant said that he 

no longer owed any allegiance to the United States, there is nothing 

to indicate that this applicant at any time owed allegiance to the 

United States inasmuch as he has always been a citizen of Mexico. 

7rith respect to the applicant's statement that he understood the 

consequences of his decision, the Service does not indicate what it 

interprets this to mean. The dissenting opinion of May 22, 1961, 

apparently assumes that, when the applicant stated that he understood the consequence-, he meant that he understood that a consequence of signing DSS Form 301 was ineligibility to citizenship. 

If the applicant was aware of that fact in August or September 

1943, it would not' how that he was aware of the matter on May 25, 

1942. More important than that, however, is the fact that there is 

no basis for assuming that the use of the word "consequences" refers to ineligibility to citizenship inasmuch as it could just as probably refer to his understanding that he might be criminally prosecuted under the Selective Training and Service Act if he returned 

to the United States or that he might be inadmissible to the United 

States. Under the circumstances, we adhere to our previous conclusion that the applicant's statement of September 6, 1943, is of 

little value in determining whether the applicant was nr was not 

aware on May 25, 1942, that the application for exemption from 

military service would _render him ineligible to citizenship. 

We stated above that we would comment on two contentions of 

counsel. First, he contends that the applicant should have been 

advised concerning the possibility of exclusion at the time he sopke 

to the immigration officer prior to his departure for Mexico and 

that the failure to so inform him constituted entrapment. Although 

this is an exclusion proceeding arising from the applicant's visit to 

Mexico for a few hours, a deportation proceeding could have been 

instituted even if he had not departed. The second contention is 

that there was no finding by the special inquiry officer that this 

applicant executed DSS Form 301 with knowledge that he would be 

thereby debarred from citizenship as required by the ruling in 

Bruniier v. Del Guercio, 259 F.2d 583, 586 (C.A. 9, 1958). Since 

our conclusion is favorable to the applicant, these contentions of 

counsel need not be further discussed. 

726 
ORDER: It is ordcrcd that the motion for reconsideration, except 

as reconsidered herein, be and the same is hereby denied. 

Allen R. Cozier, Member, Dissenting: 

For essentially the same reasons which prompted my concurrence 

in the dissent to the prior majority opinion of May 22, 1961, sustaining the alien's appeal in this case, I must again express my 

disagreement with the instant majority decision denying the Service 

motion for reconsideration. 

I am in complete accord with the majority's assertion that there 

is no legal question involved in this applicant's case and that the 

decision must turn on the question of whether, under the facts of 

his case, he does, or does not, conic within the legal rule enunciated 

in the ilfr,Rer case. I am simply unable, however, to place that degree of credence in the alien's self-serving declarations which moved 

the majority of the Board to place this case within the rule in 

Moser, and I would, therefore, grant the Service motion. 

Robert E. Ludwig, Member, Dissenting 

I join in the dissent filed by Board Member Allen R. Cozier from 

the majority decision of the Board denying the Service motion for 

reconsideration. 

In support of my dissent, I particularly desire to point out the 

decision of the United States District Court for the. Northern Dis 

trict of California, Petition 137140, dated March 30, 1960, in the 

case of Alions Sinurn Keil, affirmed by the United States Court of 

Appeals for the Ninth Circuit, Kea v. United States, 291 F.2d 268 

(1961). This case was mentioned in the majority decision, but 

without discussion. In the instant case the principal contention of 

the respondent was that his signing of DSS Form 301 should bring 

him within the ruling stated in Ilioder -v. United States, 841 U.S. 

41, in that he had insufficient knowledge of the English language to 

understand the import of what he was signing. In my dissent to 

the decision on the merits dated May 22, 1961, I pointed out the 

reasons why I thought this contention of the respondent was ineffective. (See my dissent of May 22, 1961, pages 1-2.) 

Even if we accept the conclusion of the majority that the respondent's lack of knowledge of the English language was such as 

to preclude him from having an effective knowledge of the consequences of executing DSS Form 301, we would still, under the 

reasonint,laid clown in the Keil case, be required to reach a conclusion that the respondent was shouldered with the full consequences 

of his act. Quoting from the decision in the Keil case: 

At the hearing before this court witnesses were called, and testified that 

they knew petitioner and his wife over the period of time from August 1953, 

727 
and subsequently through 1954; that petitioner spoke no English; that it was 

from one to two years before he understood English; that petitioner's wife 

did not speak well, but that she knew more and could speak English much 

better than petitioner ; that she did not comprehend the English language fully 

through the year 1954; that petitioner had to be helped to understand things, 

and that his wife did not understand too well. This testimony came from 

neighbors, the landlady, and people associated with the wife of petitioner in 

her work as a candy dipper. 

Petitioner's wife testified at the hearing before the court that when she and 

ner husband were confronted with the application for exemption after he had 

applied for citizenship and were shown the application by the naturalization 

examiner they had no recollection of ever having seen or executed such a document previously. 

The issue for this court to determine Is whether or not petitioner knowingly 

and intelligently executed the exemption application, and at that time petitioner had an opportunity to freely and intelligently choose between applying 

for exemption and waiving his right to citizenship or not applying for exemption and remaining eligible for citizenship and military training and service. 

The evidence submitted by the petitioner does not finally answer this question. The petitioner at the time the application for exemption was tiled out 

had been in this country but six months. The testimony of the petitioner, 

his wife, neighbors, and a landlady shows that his ability to speak and understand English was severely limited. It need not, however, be concluded 

that because the petitioner did not understand English that he necessarily did 

not understand the exemption application at the time It was filled out even 

though such form was in English. Direct evidence as to the understanding 

of the petitioner at the time the exemption application form was completed 

is slight. Both petitioner and petitioner's wife testified that they did nut 

remember having filled out the form or even having seen it before the hearing 

upon the petitioner's citizenship application on June 30, 1959, even though 

the form was admittedly in the handwriting of the petitioner's wife and bore 

the signature of the petitioner. 

The record indicates that the petitioner had the exemption form in his 

possession between six to nine days before it was returned to the draft board. 

There is no evidence that the petitioner consulted his brother Willibald, who 

had two days before prepared and executed the longer, more detailed Selective Service Questionnaire; there is no evidence that the petitioner consulted 

the aunt who accompanied-him to the draft board, or that the petitioner consulted the draft board or the German Consul concerning the form. The failure to consult with anyone other than his wife is of itself inconclusive on 

the question of the petitioner's understanding of the exemption application 

itself. However, the form itself correctly, accurately and completely filled out, 

constitutes at least ROMP evidence that the person who filled out the form 

understood the language appearing on its face. Petitioner furnished correctly 

such information as his local draft board number, alien registration number, 

nationality, and the country under whose treaty exemption was claimed. This 

form, signed by him, designated by the Department as C-294, contains upon 

its face a copy of section 315 of the Immigration and Nationality Act of 1952, 

which informed the reader that one applying for exemption on the ground 

that he is an alien and is relieved from military service on such ground "shall 

be permanently ineligible to become a citizen of the United States." Upon 

evidence presented, the court finds that the petitioner did knowingly and intelligently waive his right to citizenship. 

728 
This is a recent decision in the Ninth Circuit, tho Circuit Court 

in which respondent resides, and it is controlling in this case. Even 

accenting the conclusion of the majority that the respondent's lack 

of knowledge of the English language precluded him from having 

an effective knowledge of the consequences of his act, it is my opinion that the reasoning of the court in the K eil case, supra, nevertheless charges him with full responsibility therefor. Accordingly, 

it is my conclusion that the motion of the Immigration and Naturalization Service should be granted. 

BEFORE THE COMMISSIONER 

(December 1, 1961) 

DISCUSSION : There is no dispute on the facts. Appellant, a 

native and citizen of Mexico, resided in the United States from 1922 

to 1942.. He attended public school here up to or through the seventh grade. On May 20, 1942, he was classified as available for 

military service by his local draft board. He testified that he then 

went to the Mexican Consulate in Nogales, Arizona, was told he 

did not have to serve in our armed forces, and was advised to obtain 

DSS Form 301, Application by Alien for Relief from Military 

Service. He obtained the Form from his draft board, had it filled 

in at the Mexican Consulate, and then took it to the clerk at the 

local board before whom he signed and filed it on May 25, 1942. 

The Form recited on its face that the making of the application 

would debar him from becoming a citizen of the United States. He 

testified he did not read the Form; that neither the Mexican Consulate nor the draft board informed him that his action would 

debar him from citizenship. On May 27, 1942, he was exempted 

from service, by the local board. Thereafter, when Mexico became 

a co-belligerant, he was ordered to report for physical examination 

and at that time it was discovered that he had left the. United States 

and was residing in Mexico. By letter dated August 21, 1943, he 

advised his local board of his having departed and that under the 

circumstances he considered himself exempt from any obligation 

for complying with the Selective Service law (Exh. 6). 

On these facts the Board has found appellant not ineligible to 

citizenship by virtue of the filing of the DSS Form 301 under the 

rule in Moser v. United S'tates, 341 U.S. 41_ This ruling is based 

in turn on (1) appellant's limited knowledge of English, (2) not 

reading the application executed by him, and (3) not having the 

application explained to him. 

ISSUE 

Does appellant's present testimony that lie did not know and 

understand the contents of the DSS Form 301, insofar as it warned 

729 
against ineligibility to citizenship, bring him within the rule of the 

Moser case, where there is no evidence that he was misled into executing that document in the belief that he would not jeopardize 

citizenship, and in the absence of evidence that he did not have full 

opportunity to make an intelligent choice? 

Aitt; IIMENTS 

It is submitted that the reliance on Moser, supra, is misplaced. 

Moser went to his legation for aid in receiving deferment under a 

treaty. Through the legation he was furnished a revised DSS Form 

301. The Form did not contain a statement that he would be debarred, but a footnote quoted the applicable law. The legation 

snecifically informed him that he would not thereby waive his right 

to apply for citizenship. He signed the document believing that he 

was not thereby precluded from citizenship. He was lulled into a 

misconception of the legal consequences of the appli ea ti nn with respect to eligibility to citizenship and, therefore, had no "opportunity 

to make an intelligent election." 

This applicant never sought advice concerning eligibility to citizenship in connection with obtaining military exemption. He was 

given no advice and expressed r, interest in the subject of citizenship at the time. He was concerned with one thing only, as evidenced 

by the filing of the document and his subsequent actic as in taking 

the necessary steps to avoid service. Even his present self-serving 

testimony that he would not have signed the document had he known 

it would render him ineligible for citizenship is refuted by his testimony that he made no inquiry at the consulate, nor any place else, 

in this connection, at the time that he executed the document. As 

contrasted with Moser, this appellant had every "opportunity" to 

learn if he was debarring himself from citizenship. No one misled 

him—he simply acted pursuant to his desire to be exempted. 

Apart from the difficulty in accepting a ruling that in the face 

of seven years of schooling in American schools at an early age, 

and 20 years over-all of residence in the United States, appellant's 

knowledge of English was so limited that he could not understand 

the plain warning in the DSS Form 301—a finding based solely on 

appellant's mere assertions to that effect—the appellant admits of no 

effort to read the DSS Form 301 himself, or that he requested anyone, including the consulate or the draft board, to read or explain it 

to him 

It is the essence of the instant ruling that one who signs a form 

for exemption, without regard to its effect, except to the extent 

that it relieves him from military service, thereby brings himself 

within the holding in Moser. Even if it were assumed that this appellant could not read English, and even if it were conceded that 

730 
he did nut know that lie would become ineligible to citizen ship, the 

Service is unaware of judicial authority that opportunity for intelligent choice is lacking, or that an alien can successfully claim 

unawareness of legal consequences, when with full opportunity to do 

so he does not read the form, makes no effort to read it, makes no 

request of anyone to read it to him, seeks no advice or assistance 

as to the contents of the form, and, in executing the form was not 

offered or given any information which misled him. Additionally, 

such a ruling is "in effect to rule that the Local Board * * * accepted a document which had no valid inception" and "in the absence 

of testimony from the clerk or any member of the Board" constitutes 

"an arbitrary ruling upon the methods pursued by the Board in discharging its difficult functions, which is a position that could be 

justified only under very unusual circumstances." Petition of 

Miranda, 111 F. Supp. 481 (D.C., E.D. N.Y., 1953). 

The Form speaks for itself. Strong affirmative evidence should 

be required to overcome it. The Congress made this clear in section 315 of the Immigration and Nationality Act. Obviously, the 

warning on the face of the Form is meaningless if all that is required to overcome it is self-serving testimony by the alien, 20 years 

after execution, that he did not read the document or know it would 

make him ineligible for citizenship. 

The issue is one of far-reaching consequences in both immigration 

and naturalization proceedings, The present decision enunciates an 

interpretation which will render the Service impotent to refute a 

claim that in signing DSS Form 301 an applicant was unaware that 

he was thereby debarred from citizenship. As pointed out in the 

Service motion for reconsideration of June 9, 1961, the decision is 

contrary to the overwhelming weight of judicial authority. Particular reference is made to Kahook v. Johnson, 273 F.2d 413 (CA. 5, 

1950), and Keil v. United States, 291 F.2d 268 (CA. 9, 1961). The 

latter decision comes from the very circuit in which this applicant 

for admission resides and presents the anomalous situation that the 

Service would have to recommend the granting of a petition for 

naturalization by this applicant, in the very circuit where the 

Court, in wholly unambiguous language, has said that naturalization 

would be denied. 

Because the inctant ruling does violence to the intent and purposm 

of section 315 of the Immigration and Nationality Act, and is an 

unwarranted extension of the holding in the Moser case, contrary to 

the weight of judicial precedent, and because of the far-reaching 

impact of the ruling on other cases, it is requested that the case be 

certified to the Attorney General. 

Request is hereby made that pursuant to the provisions of 8 CFR 

3.1(h) (1) (iii) the instant ease be referred to the Attorney General 

for review. 

731 
BEFORE THE BOARD 

(March 13, 1962) 

DISCUSSION: By majority decisions of the Board, we sustained 

the alien's appeal on May 22, 1961, and on November 14, 1961, a 

motion of the Service for reconsideration was denied. The matter 

is now before us pursuant to the request of the Service on December 1, 1961, that the case be referred to the Attorney General for 

review under 8 CFR 3.1(h) (1) (iii), and the Service has also asked 

that a supplemental memorandum dated December 11, 1961, be 

attached to its original memorandum. 

The applicant is a 53-year-old married male, native and citizen of 

Mexico, who was admitted to the United States for permanent resiNace on March 16, 1060. On August 6, 1960, after an absence of a 

few hours in Mexico, he applied for admission as a returning resident and was excluded by a special inquiry officer on the ground 

stated above. 

The issue in this case is whether the applicant is permanently ineligible to become a citizen of the United States under the provisions 

of section 315 of the Immigration and Nationality Act (8 U.S.C. 

1426). We do not regard the issue as being that shown on page 2 of 

the Service memorandum of D^,..,mber 1, 1961, since it was stated 

there in the form of a question which was based on the erroneous 

hypothesis that there was no evidence concerning two matters. 

On page 1 of its memorandum dated December 1, 1961, the Service 

gives its view of the facts. The first sentence of the memorandum 

is: "There is no dispute on the facts." This is incorrect, and we 

believe we made it plain in our previous orders that the question 

involved in this case is solely one of fact. Our authority to decide 

factual issues was affirmed by a former Attorney General on June 6, 

1956, in Matter of B—, 7-1, 36, and the Service does not claim in this 

case that we lack such authority. Since the Service has failed to 

perceive that this case involves only a factual question, and in order 

that there may be no further misunderstanding, we have set forth our 

view of the facts in some detail in this decision and in our formal 

findings of fact hereinafter. 

The applicant previnnsly resided in the United States from 1922 

until 1942 and registered under the Selective Training and Service 

Act of 1940. He was originally placed in a IV-C classification on 

June 11, 1941, since he was not liable for military service under 

the law then in existence. On May 20, 1942, he was placed in Class I. 

The applicant testified that, upon receiving a notice to appear for a 

medical examination, he went to the Mexican Consulate for advice 

and was informed that he was not obligated to serve in the armed 

forces of the United States and that he should obtain DSS Form 301 

from his draft board. He obtained the Form and took it to the 

732 
Mexican Consulate where it was filled out and he then signed the 

Form before an employee of the draft board. He was positive in 

his testimony that he did not read the Form; that no one at the 

Mexican Consulate or at the draft board informed him that the 

signing of the application would bar him from becoming a citizen 

of the United States; and that no statement whatever was made to 

him that this application would have any effect upon his eligibility 

for citizenship. He testified that he would not have signed the Form 

if he had known that such action would bar him from becoming 

a citizen. 

The DSS Form 301 was an application by a citizen of a neutral 

country to be relieved from training and service in the Armed Forces 

of the United States. The applicant executed this Form (Exh. 5) on 

May 25, 1942, and it contains a printed statement that the making of 

the application will debar the person from becoming a citizen. On 

May 27, 1942, the applicant was exempted from service by his draft 

board and was again placed in Class IV–C. Actually, Mexico was 

then no longer a neutral country since it had declared war on Germany, Italy and Japan on May 22, 1942. However, a letter of the 

Selective Service System dated October 6, 1960 (part of Exh. 6), 

indicates that it had not officially listed Mexico as a co-belligerent 

country until August 3, 1943. On the following day, the applicant 

was changed from Class IV–C to Class I–A. 

The applicant left his employment in the United States on November 23, 1942, upon the death of his mother (apparently in 

Mexico) and he resided and worked in Mexico from that time until 

March 31, 1960, when he was admitted to the United States for 

permanent residence. Since he had been exempted from military 

service on May 27, 1942, and was not reclassified in I–A until 

August 4, 1943, it seems evident that his departure from the United 

States in November 1942 was not due to fear of imminent induction 

but was because of the death of his mother as he stated. 

The applicant had no English schooling prior to coming to the 

United States in February 1922, at the age of 13. He then attended 

public schools at Nogales, Arizona, for 5 or 6 years until he was 

about 18 or 19 years old, to or through the seventh grade. • He left 

school about 1927 or 1928, and it would seem that his knowledge of 

English deteriorated thereafter since the present exclusion hearing 

was conducted in Spanish through an interpreter. 

On page 2 of its memorandum, the Service stated that our ruling 

was based on three factors—the applicant's limited knowledge of 

English; the fact that he did not read the application; and "not 

having the application explained to him." On page 3, the Service 

said that no one misled this applicant. In our order of November 

14, 1961, we stated that, although we accepted the applicant's testi733 
mony that he had a very limited knowledge of English in 1942, the 

important consideration was not his ability to understand or read 

English but whether he was or was not aware of the two alternatives mentioned in Moser v. United States, 341 U.S. 41 (1951), that 

is, "a choice of exemption and no citizenship or no exemption and 

citizenship." We also said that there was only the factual question 

of whether he was or was not aware on May 25, 1942, that he would 

become ineligible to citizenship if he signed DSS Form 301. We 

have not said that this Form was not "explained to him." Actually, 

the situation here is that the applicant was informed that he could 

obtain exemption from military service by executing DSS Form 301, 

but was not informed that the signing of the Form would result in 

making him ineligible to citizenship. Hence, the furnishing of only 

p..rt of the information and the failure to inform him as to the 

consequences of signing the application did mislead this applicant 

so that he did not have the opportunity of making an intelligent 

election. 

In Moser v. United States, supra, the Court stated at page 47: 

Petitioner did not knowingly and intentionally waive his rights to citizenship. • • • [H]e never had an opportunity to make an intelligent election 

between the diametrically opposed com-ses required as a matter of strict law. 

Considering all the circumstances of we case, we think that to bar petitioner, 

nothing less than an intelligent waiver is required by elementary fairness. 

• • • To hold uLherwle would be Lu entrap 

On page 4 of its memorandum of December 1, 1961, the Service 

asserts that our decision "is contrary to the overwhelming weight of 

judicial authority." That statement is erroneous. In this connection, 

the Service made particular reference to Sahook v. Johnson, 273 

F.2d 413 (C.A. 5, 1960), and Keil v. United States, 291 F.2d 268 

(C.A. 9, 1961). In our order of November 14, 1961, we discussed 

fully this contention of the Service, as well as the Kahook decision. 

We there stated that the legal question had been authoritatively answered by the Supreme Court's decision in Moser v. United States, 

supra, and that, since that time, the inquiry was whether or not the 

facts of the particular case brought it within the Moser rule. 

In the motion of June 9, 1961, the Service had relied on four district court decisions in each of which it was held that the alien 41,cr8 

not within the Moser rule. We stated, in our order of November 14, 

1961, that in other cases the courts had reached a contrary conclusion to the effect that the alien was within the Moser rule and, as 

examples, we cited the following: Machado v. McGrath, 193 F.2d 

706 (C.A. D.C., 1951) ; Petition of Berin,i, 112 F. Supp. 837 (E.D. 

N.Y., 1953) ; Petition of Sally, 151 F. Supp. 888 (S.D. N.Y., 1957) ; 

and In re Bouchage's Petition, 177 F. Supp. 887 (S.D. N.Y., 1959). 

As we stated in our previous order. Machado v. McGrath, supra. 

734 
shows that the Moser rule has not been limited to factual situations 

precisely identical with Moser. This is also true of the Bouchage 

case in which that alien had received misleading information from a 

draft board member. The court held (p. 897 of the opinion) that he 

was within the Moser rule and granted his petition for naturalization, notwithstanding the fact that the DSS Form 301 which 

Bouchage signed was not the revised form which Moser had signed, 

and notwithstanding the fact that the court found that Bouchage 

knew, when he signed the Form, that it contained the clause stating 

that he understood that the making of the application debarred him 

from citizenship. 

The Service seeks to differentiate the applicant's case from that 

of Moser by stating that Moser signed DSS Form 301 (revised), 

whereas the Form signed by this applicant contained the printed 

statement that the making of the application would debar him from 

becoming a citizen. As we have already indicated, it is obvious 

from In re Boucitage's Petition, supra, that this is not a valid distinction. As a matter of fact, Petition of Moser, 182 F.2d 734, 73e• 

(C.A. 2, 1950), shows that it was not until March 16, 1943, that 

DSS Form 301 was revised, and the revised form was not even in 

existence when this applicant applied for exemption on May 25, 

1942. Furthermore, in Petition for Naturalization, of Bruce, 163 F. 

Supp. 493 (S.D. N.Y., 1958), the district court denied the petition 

for naturalization principally on the ground that Moser had signed 

the revised DSS form 301 and Bruce had signed the original Form 

which contained the warning about ineligibility for citizenship. 

The alien appealed from that decision. On motion of the Government in the Court of Appeals, that court vacated the judgment of 

the district court and remanded the case for further proceedings 

Thereafter, the Government withdrew its objection to the granting 

of Bruce's petition and he was admitted to citizenship on May 11, 

1959. 

The Service states that this applicant never sought advice concerning his eligibility for citizenship in connection with obtaining 

exemption from military service and that Moser went to his legation 

for aid in obtaining exemption. This applicant did, in fact, go to 

the consular officer of his government for information and he followed that officer's advice in signing DSS Form 301. Moser wac 

reclassified I—A on January 11, 1944, and it seems clear that, he was 

well aware that the original DSS Form 301 contained the statement 

that the making of the application would render him ineligible to 

citizenship since he advised his local board that he had taken steps 

"to be released unconditionally" from service. This applicant, on 

the other hand, did not know that the signing of the Form would 

bar him from becoming a citizen or that it would have any effect 

735 
upon his eligibility for citizenship. Moser was apparently a welleducated man and was a commissioned officer in the Swiss army. 

Under these circumstances, we find it difficult to understand how 

the Service can conscientiously urge that this applicant should have 

inquired whether signing the Form would debar him from citizenship when he was not even aware of that possibility. ' 

On page 3 of its memorandum, the Service again cited Petition of 

Miranda, 111 F. Supp. 481 (E.D. N.Y., 1953), one of the four district court decisions which had been cited in its previous motion, 

and parts of certain sentences in that decision were quoted. When 

these are considered in the context of the entire opinion, we do not 

believe that they are of any particular value in this applicant's 

case. For example, the court stated! "To accede to this view would 

,quire the court in effect to rule that Local Board 24 accepted a 

document which had no valid inception." Immediately preceding 

that was the statement that Miranda said that he did not then speak 

English; that he did not read the paper (DSS Form 301); that it 

was not translated or otherwise explained to him; and that, therefore, it should be disregarded. This seems to mean that, if the court 

had believed Miranda's testimony, it would have had to hold that 

the DSS Form 301 "had no valid inception." The court did not, 

however, make any specific finding as to whether Miranda was or 

was not aware that his DSS Form 301 contained the statement that 

he would be barred from citizenship but it is obvious that the court, 

in denying his petition, found against him on the facts. 

We stated above that the Service had requested that a supplemental 

memorandum dated December 11, 1961, be appended to its memorandum of December 1. There was attached to the supplemental 

memorandum a decision of the United States District court for the 

Eastern District of New York dated December 1, 1961, relating to 

the petition for naturalization of Jaime Diaz, and the Service stated 

that the district court "quoted with approval" certain statements 

made by its superior court in United States v. Kenny, 247 F.2d 139 

(C.A. 2, 1957). There is no apparent reason why the Service could 

not have relied on the decision of the Court of Appeals concerning 

Kenny rather than on a district court decision which merely quoted 

language from the Kenny decioion. 

In the Kenny case, the alien had not used a Form but had written 

a letter to his draft board on January 14, 1953, requesting exemption. 

Five months later, the draft board sent him a letter calling attention to the provisions of section 315 of the Immigration and Nationality Act. It was in this connection that the Court of Appeals, 

at page 143, made the statement relied on by the Service to the effect 

that section 315 may not be interpreted to mean that its provisions 

shall come into effect only when the application for exemption is 

786 
made upon a prescribed form or after a warning as to its effect. 

The Court of Appeals in the Kenny decision had made the following statement immediately after the extract which was quoted in the 

Diaz case : "However that may be, in this case Kenny did not advance as his excuse ignorance of the statutory bar. Instead, his 

excuse was that he thought the bar not applicable to him." This 

seems to indicate that the Court of Appeals did not place its decision 

on the language relied on by the Service but that its decision was 

based upon the fact that Kenny had not claimed that he was ignorant 

of the fact that a request for exemption would bar him from citizenship. The court went on to say that, even after he had been directly 

notified of the statutory bar, he continued to enjoy the exemption 

for over a year before he withdrew his request for exemption. This 

applicant's case is distinguishable from Kenny because he claims he 

did not know of the statutory bar and did not know that claiming 

exemption would have any bearing on his eligibility for citizenship. 

There also appears to be a question as to whether the Kenny case 

was correctly decided because he had claimed exemption as a treaty 

alien on January 14, 1953, and it is now the clearly-defined administrative rule that a claim of exemption as a treaty alien subsequent 

to the Selective Service Act of 1948 and prior to April 24, 1953, did 

not render the alien ineligible to citizenship. This is illustrated 

by In re Elken's Petition, 161 F. Supp. 823 (E.D. N.Y., 1958), and 

the unreported case of George Alfred Duerst who filed petition for 

naturalization No. (199723 in the United States District Court for 

the Southern District of New York. Elken claimed exemption as a 

treaty national on November 4, n 1952, and Duerst on January 6, 1953. 

Their petitions for naturalization were denied on May 8, 1958, and 

July 14, 1958, respectively, and both appealed. In re Elken's Petition, supra, contains the statement that the case is analogous to that 

of United States v. Kenny, supra, and the Kenny case was also relied 

on in the Duerst decision. The two district courts which denied 

naturalization to Elken and Duerst are in the Second Circuit and, 

since the Kenny case was decided in that Circuit, it was a binding 

precedent. While the appeals of Elken and Duerst were pending, 

the Government requested the Court of Appeals to remand the petitions to the district courts for reconsideration following which the 

Service withdrew its opposition to the granting of naturalization 

and both were admitted to citizenship. 

In re Naturalization of Healy, 183 F. Supp. 651 (N.D. Cal., 1960), 

related to a claim for exemption by a treaty national on January 23, 

1953, and the court concurred in the administrative view that such 

aliens are not barred from naturalization. In view of the foregoing, 

as well as the fact that the statements in Kenny on which the Service 

relied appear to be dicta, we do not believe they are controlling in 

737 

634377-63-48 
This applicant's case, particularly insofar as they might be considered 

contrary to the holding in the Moser case. 

On page 4 of its memorandum of December 1, 1961, the Service 

stated that our decision is "an unwarranted extension of the holding 

in the Moser case." We have not, of course, extended the ruling in 

the Moser case. In our opinion, that case must be considered as 

holding that it is essential that the alien must have "knowingly and 

intentionally waived his rights to citizenship," and that he must 

have had an opportunity to make an intelligent election between 

"exemption and no citizenship or no exemption and citizenship." 

The Service has not and cannot dispute that this is, in fact, what the 

Moser case holds. 

The Service also stated that the applicant's residence is in the 

Ninth Circuit in which Keil v. United States, supra, was decided and 

that there is "the anomalous situation that the Service would have 

to recommend the granting of a petition for naturalization by this 

applicant, in the very circuit where the Court, in wholly unambiguous 

language, has said that naturalization would be denied." The latter 

part of the quoted statement is indeed far fetched. The court did 

not, of course, say that it would deny naturalization to every alien 

who signed DSS Form 301. As d matter of fact, the court specifically said that Moser v. United States, supra, "requires that the 

alien, when executing the application for exemption, rn-,st knowingly 

and intelligently waive his right to citizenship in order to be barred 

from naturalization." The district court made a finding that Keil 

"did knowingly and intelligently waive his right to citizenship" and 

the Court of Appeals said that the decision of the lower court found 

ample support in the evidence. We cited the Keil case in our order 

of November 14, 1961, and stated that it was to the same effect as 

the four district court decisions cited by the Service. In other 

words, the case is simply one in which the court held that the alien 

was not within the Moser rule based on the particular facts in Keil's 

case. Hence, that decision does not control other cases in which 

the facts are not the same. 

There is no assurance that this applicant will ever apply for citizenship or that he would meet other requirements for naturalization 

unrelated to the possible bar of section 315 of the Immigration and 

Nationality Act. In the event that he does file a petition for naturalization, we assume that the Service will bring all of the facts to 

the attention of the naturalization court, including the fact that he 

signed DSS Form 301. If that court does not agree with our findings 

of fact in this exclusion proceeding, we have no doubt that it will 

disregard our findings and decide the case on its view of the facts. 

The Service describes the applicant's testimony as self-serving. 

It is true that any testimony given by an applicant for admission to 

738 
the United States will usually be either against interest or selfserving. This does not mean that an alien's self-serving statements 

must be automatically excluded from consideration. In our previous 

order, we stated that at the time we originally considered the case 

we had weighed the applicant's testimony against his interest in the 

outcome of the proceeding. When he applied for his immigrant visa 

in 1960, he made no attempt to conceal his prior residence in the 

United States during a time when he was subject to the provisions of 

the Selective Training and Service Act, but specifically informed 

the American Consul concerning his residence at Nogales, Arizona, 

from 1922 until November 1942. After considering all the factors, 

we previously found that the applicant was not aware, when he 

executed DSS Form 301, that such action would bar him from citizenship, and we adhere to that finding_ 

The Service has also asserted a fear that our decision will render 

it impotent to refute a claim by an applicant that he was not aware 

that signing DSS Form 301 would bar him from citizenship. We believe it should have been clear to the Service from our previous 

decisions that this applicant's case involved only a factual issue 

which we had determined in his favor. Hence, there is no reason why 

our decision here should have any effect on the decision in other 

cases which must be determined on the facts peculiar to them. Even 

in cases in which the facts might be somewhat similar, it would not 

follow that the alien must necessarily be held eligible for citizenship. In other words, here we believe the alien's testimony that 

he was not aware, when lie signed DSS Form 301, that the signing 

of the Form would bar him from citizenship but this would not 

preclude a special inquiry officer or naturalization examiner from 

finding in some other case that the alien was aware of the fact even 

though he might claim to the contrary. 

We observe that the special inquiry officer did not make a finding 

that the applicant executed DSS Form 301 with knowledge that he 

would be thereby debarred from citizenship, as required by the ruling 

in Brunner v. Del Guercio, 259 F.2d 583, 586 (C.A. 9, 1958). We 

adopt the special inquiry officer's findings of fact numbered (1) end 

(2) and make the following additional findings of fact: 

(3) On May 25, 1942, the applicant executed an application for relief from 

military service (DSS Form 301), ane he vva5 exempted from service 

by his local board on May 27, 1942; 

(4) The DSS Form 301 was prepared for the applicant by an officer or 

employee of the Mexican Consulate and the applicant thereafter signed 

the Form before an employee of the draft board at (Nogales, Arizona; 

(5) The applicant did not read DSS Form 301 before he signed it ; 

(6) He was not informed either at the Mexican Consulate or at 'the draft 

hoard that the signing of DSS Form 301 would bar him from becoming 

a citizen of the United States or would have any effect upon his eligi 

bility for citizenship; 

739 
(7) The applicant did not have any knowledge, at the time he signed DSS 

Form 301, that the signing of the Form would bar him from becoming 

a citizen ; 

(8) The applicant would not have signed DSS Form 301 if he had known 

that such action would bar him from becoming a citizen; 

(9) The applicant did not knowingly and intentionally waive his rights t' 

citizenship. 

Our conclusion of law is as follows; 

(1) The applicant is not an alien ineligible to citizenship and is not excludable from admission into the United States under section 212(a) 

(22) of the Immigration and Nationality Act. 

ORDER: It is ordered that this case he referred to the Attor ney 

General for review in accordance with 8 CFR 3.1(h) (1) (iii). 

BEFORE THE ATTORNEY GENERAL 

(June 18, 1962) 

Th..3 is a proceeding to exclude an alien under section 212(a) (22) -

of the Immigration and Nationality Act of 1952, 8 U.S.C. 1182 

(a) (22), on the ground that he is ineligible to citizenship. The asserted ineligibility is based upon section 315 of the Act, 8 U.S.C. 

1426, which provides in substance that an alien who applied for and 

was exempted from military service because he is an alien is thereafter barred from eligibility for United States citizenship. The rule 

is qualified by the doctrine of Moser v. United States, 341 U.S. 41, 

which holds that in applying for exemption the alien must be in a 

position to make an intelligent choice between waiver of his eligibility for citizenship and liability for military service. 

An applicant for admission into the United States has the burden 

of proving that he is not subject to exclusion. 8 U.S.C. 1361. Quite 

apart from this, one seeking to come within the exception to section 315 implied in Moser is in the same position as a party claiming 

the benefit of an exception to a general rule. The burden of proving 

an exception or exemption is upon the one asserting it. Sherman Inv. 

Co. v. United States, 199 F.2d 504, 507 (C.A. 8, 1952). Finally, the 

facts and circumstances surrounding an alien's negative claim that 

he did not intelligently choose between eligibility for service and 

eligibility for citizenship are peculiarly within the alien's knowledge. 

For this reason also, he must bear the burden of proof. Cf. T endler 

v. Jaffe, 203 F.2d 14, 18, certiorari denied, 346 U.S. 817. 

In view of the disposition of this case, it is not necessary to recite 

the facts in the record. The relevant procedural steps were as 

follows: On December 7, 1960, a special inquiry officer of the Immigration and NatUralization Service entered a decision concluding that 

the applicant was excludable from admission into the United States 

under section 212(a) (22) as an alien who is ineligible for citizen740 
ship. This conclusion was based upon findings that the applicant 

had requested exemption from military service in the United States 

Armed Forces as a neutral alien, and that this request had been 

granted. The applicant appealed the inquiry officer's decision to the 

Board of Immigration Appeals which, on May 22, 1961, dividing 3-2, 

ruled for the applicant. The Board found that he was not aware 

that the disqualifying consequence of his request for exemption from 

service would be ineligibility for citizenship. The Immigration and 

Naturalization Service moved for reconsideration and the Board 

issued a second opinion, dated November 14, 1961, again holding for 

the applicant. The Service then requested that the case be referred 

to me pursuant to 8 CFR § 3.1 (h) (1) (iii). 

Although it did not expressly discuss the burden of proof, the 

opinion of the majority of the Board appears to have found that the 

evidence of record sustained the applicant's burden of bringing himself within the Moser rule; but two members concluded that his 

testimony concerning his understanding of the consequences of his 

application for exemption, which is crucial here, should not have 

been credited. On the motion for reconsideration, the majority 

viewed the issue as one of fact. Board Member Cozier dissented 

from the majority's disposition of the merits, but also observed "that 

there is no legal question involved in this applicant's case and that 

the decision must turn on the question whether, under the facts of 

his case, he does or does not come within the legal rule enunciated 

in the Moser case." Board Member Ludwig, who also expressed 

his own view of the matt:3r, joined in this dissent. 

The only issue for decision which I find in this Case is whether, 

on its particular record, the majority or the dissenters are correct 

in their assessment of the facts leading to the conclusion that the 

alien had satisfied the burden imposed upon him. This is not ordinarily an issue appropriate for reference to me under the pertinent 

regulations. The record is one upon which reasonable men can differ 

and have differed. Further consideration of the question has established no general principle which could guide the disposition of 

other cases, or revealed any clear error on the part of the Board. 

In the circumstances, therefore, I affirm the decision in behalf of 

the applicant. 

The Service has expressed the fear that the decision of the Board 

in this case may establish a precedent for future cases under which 

it will be helpless to refute self-serving testimony by an applicant 

that he was not aware that claiming exemption from military service 

could bar him from eligibility for citizenship. This is largely a 

question of credibility, which must be tested against all of the circumstances surrounding the claim of ignorance. These circumstances 

are especially important in proceedings before the Board, because 

741 
credibility must be determined without the benefit of demeanor 

evidence. In this case the Board's assessment of the applicant's 

testimony was balanced against all of the other factors in the,mcord 

lending support to the testimony. A slight variation in those factors might well have convinced a majority of the Board that the 

applicant's claim of ignorance was not credible. In any event, I do 

not understand the Board's decision to establish a rule of proof for 

other cases, nor does this decision affirming it do so. 

742