Interim Decision #1878 

MATTER OE JAVEER 

In Deportation Proceedings 

A-18471488 

Decided by Board August 5, 1968 

Deportation proceedings are not terminated for the purpose of permitting respondent to petition for naturalization Under /section 320 of the Immigration and 

Nationality Act on the basis of honorable service in the Armed Forces of the 

United States during World War II, where deportation is predicated solely on a 

ground which is not a bar to citizenship under that section (dfillan-Garcia v. 

Immigration and Naturalization Service, 382 U.S. 09 (1905) ). 

CHARGE: 

Order: Act of 1052—Section 241(a) (2) [8 U.S,C. 1251(a) (2)1—Nonimmigrant—remained longer. 

ON BEHALF OF REsfoNDENT: 

Donald L. Ungar, Esquire 

517 Washington Street 

San Francisco, California 94111 

(Brief filed) 

ON BEHALF OF SERVICE: 

Stephen M. Suffin 

Trial Attorney 

(Brief filed) 

The case comes forward on appeal from the order of the special 

inquiry officer dated May 29, 1968 denying the respondent's application 

for status as a permanent resident under section 245 of the Immigration 

and Nationality Act, and also denying the respondent's request for termination of proceedings to enable him to have an opportunity to petition for naturalization, granting voluntary departure in lieu of deportation on or before July 2, 1968, or any extension beyond such date as 

might be granted by the District Director, further ordering that if 

respondent failed to depart when and as required, he be deported to 

the Philippines on the charge contained in the order to show cause. 

The record relates to a native of Malaysia, a citizen of the Philippines, 49 years old, male, who was admitted to the United States at 

Honolulu, Hawaii on or about June 29, 1967 as a temporary visitor 

until August M, 1967. On February 23, 1967, his application for status 

as a permanent resident was denied and he was given until March 24, 

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1968 to depart voluntarily from the United States. The respondent has 

failed to depart. Deportability is conceded. 

The respondent has reapplied in the deportation proceedings for 

status as a permanent resident under section 245 of the Immigration 

and Nationality Act. He claims to be qualified as an airplane mechanic 

and to be exempt from the necessity of filing a Form BS-575B, describing his prospective employer in the United States as provided in 29 

CFR 60.3 (b), which requires only the filing of a, Form ES-515A, 

describing his qualifications. Subparagraph (c) of 29 CFR 60.3 refers 

to Schedule C, a list of occupations whiCh have been found to be in 

short supply generally, although not nationwide? 8 CFR 245.2 (b) provides "that if the applicant is clearly qualified for and will be engaged 

in an occupation currently listed in Schedule C, the District Director 

will refer Form ES-575A and evidence of the applicant's qualifications 

to the Administrator, Bureau of Employment Security, United States 

Department of Labor for determination with respect to issuance of a 

certification." 

Previously the special inquiry officer, in his oral decision of April 3, 

1968 (which is not contained in the file) concluded that it was clear 

that respondent did not meet the requirements set forth in the definition 

•or airplane mechanic. Upon further consideration, he concluded that 

only the District Director could make such a finding, withdrew his 

decision and referred the matter to the District Director, who on 

May 16, 1908 concluded that the respondent was not clearly qualified for 

and would be engaged in an occupation currently listed in Schedule C. 

Counsel has argued that the special inquiry officer has authority to 

make the finding as to whether the respondent is clearly qualified as 

provided in 8 CFR 245.2(b). However, the issue would appear to be 

moot inasmuch as both the District Director and the special inquiry 

officer have found the respondent not clearly qualified for the occupation of airplane mechanic as defined in Schedule C referred to in 29 

CFR 60.3(c) ; and in any event, 8 CFR 212.8 (c) (4) requires a determination by the Department of Labor as to whether an individual 

labor certification will be issued and provides that the application for 

adjustment of status may not be approved until the required certification is issued. The required certification has not been issued and the 

respondent therefore is not eligible for adjustment of status. 

The respondent has requested as an alternative that the proceedings 

be terminated so that he can file a petition for naturalization under 

section 329 of the Act as an alien who served honorably in the military 

service of the United States during World War II. The basis for this 

1 See also 8 CFR 212.8(c) (4). 

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Interim Decision #1878 

claim of eligibility for naturalization is the fact that he served in 

the Philippine Army from December 18, 1941 until his discharge in 

1946 and that during this period General MacArthur issued an order 

taking his unit into command of the United States Armed Forces in 

the Far East. The special inquiry officer declined to terminate proceedings for such purpose, relying upon Millan-Garcia v. Immigration and Naturalization Service, 382 U.S. 69, 15 L.ed. 2d 144 (1965). 

In a per curiam decision the Supreme Court vacated the judgment and 

remanded the case to the Court of Appeals Ninth Circuit, upon examination of the entire record "in light of the representations of the 

Solicitor General that the petitioner will be afforded an opportunity to 

apply for citizenship and there will be no deportation proceedings 

until such determination." The special inquiry officer referred to the 

Solicitor General's memorandum to the Supreme Court, in which he 

represented that to avoid the anomalous result which a literal application of section 318 appears to produce, the Service, after consultation 

with the Solicitor General, has decided that in this and future like 

cases (i.e., cases where deportation is predicated solely upon a ground 

which Congress has decided should not be a bar to citizenship for the 

particular category of aliens involved), deportation proceedings will 

be held up or stayed for a reasonable period to permit the alien to 

pursue proceedings to obtain naturalization, but the Service will invite 

the attention of the naturalization court to section 318 but not invoke it 

as a bar to such proceedings. 

It is believed that the decision in Milkn-Garcia v. Immigration 

and Naturalization, supra, is self-explanatory and that the request for 

termination of proceedings to permit naturalization was properly 

denied. The respondent has been granted voluntary departure in lieu 

of deportation. He will be granted 30 days from date of notification of 

decision to depart. The appeal will be dismissed. 

ORDER: It is ordered that the respondent be granted 30 days from 

date of notification of decision to depart voluntarily. 

It 48 further ordered that the appeal be and the same is hereby 

dismissed. 

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