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 t h e 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 execu-

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
tion

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 re-

lieved 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

by us when we rendered the decision of May 22, 1961, and
we do not regard these matters as constituting a basis for altering
sidered

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 exe-

cuting 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 s hip, 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, n1952, 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- 6 3-48

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 ex-

cludable 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 citizen-

740

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


Interim Decision #1898

MATTER OF SENIOR

In Deportation Proceedings
A-12357361

Decided by Bawd August 29,1968
Notwithstanding he now possesses the requisite familial relationship, an alien
who entered the United States with a nonqnota immigrant visa obtained on the
basis of his bigamous marriage to a U.S. citizen and a section 212(h) waiver
of criminal grounds of excludability under section. 212(a) (9) of the Immigration and Nationality Act, is Ineligible for the benefits of section 241(f) of the
Act since the section 212(h) waiver is null and void as he was not married
to a citizen at time of grant and, therefore, he was not "otherwise admissible"
at entry, as required by statute.
CHARGES •
Order: Act of 1952—Section 241(a) (1) [8
1251(a) (1)1—Excludable at
time of entry—immigrant—no visa.
Act of 1952—Section 241(a) (1) [81113.0. 1251(a) (1) ]—Excludable at
time of entry—alien who has procured visa by fraud.
ON BUMF Or emus:
R. A. Vielbaber
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:

Joseph L. Andrews, Esquire

Sachs and Spector
152 West 42d Street
New York, New York 10036

The case comes forward on appeal from the decision of the special
inquiry officer rendered on April 26, 1968, in which he found the
respondent deportable as charged but granted voluntary departure
with an. alternative order of deportation to England, or if not accepted
there, then to the respondent's native country of Jamaica. The special
inquiry officer denied the respondent's request to terminate the
proceedings.
The respondent is a 41-year-old married male alien, a native and
citizen of Jamaica, who last entered the United States at El Paso,

Texas on December 13, 1962, at which time he was reentering the
United States for the purpose of resuming his permanent residence
in this country. The respondent had initially entered the United States

861

Interim Decision #1898
at New York on February 4, 1962, being admitted as a permanent
resident on the basis of a nonquota visa issued to him on February 2,
1962. At the time of applying for said visa, the respondent alleged
that he was then legally married to a United States citizen.
The record amply shows that at the time he applied for the visa he
was in fact still married to his first wife who was not a citizen of the
United States or an alien admitted for permanent residence. Also at
the time he received his immigrant visa, he was not otherwise admissible to the United States because he had been convicted of two crimes
involving moral turpitude and, therefore, was excludable under section 212(a) (9) of the Immigration and Nationality Act. He received
a waiver of this ground of inadmissibility under section 212(h), Immigration and Nationality Act, on the basis that his exclusion would
result in extreme hardship to his United States citizen spouse. The
crimes for which the respondent was convicted in Jamaica in 1948
consisted of petty larceny for which he was fined $35.00 and also nine
counts of obtaining money by false pretenses for which he was sentenced to two years' imprisonment, of which he served 16 months
Since these convictions were for crimes involving moral turpitude and
since there were two such convictions, the respondent, was clearly
excludable from the United States at the time of his entries on February 4, 1962 and December 13, 1962 unless he obtained a waiver under
section 212(h) of the Act, which as aforementioned he had.
The respondent's failure to reveal these crimes at the time he applied
for a nonimmigrant visa and the fact that he represented.that he was
the spouse of a United States citizen amounted to his obtaining the
visa by fraud and hence he was excludable under section 212(a) (19)
of the Immigration and Nationality Act. The respondent also
obtained a waiver of this ground of excludability pursuant to section
212(i) on the basis that he was the apouco of a United States citizen.
The thrust of the respondent's arugment that the proceedings should

now be terminated is based upon his contention that he should be
granted relief from deportation under section 241(f), Immigration
and Nationality Act, which provides in effect that the provisions of
section 212(a) (19) under which he would be excludable and deportable shall not apply if the alien is the spouse of a United States citizen,
and if otherwise admissible. The respondent cites the case of Scott v.
Immigration and Naturalization Service, decided by the United
States Supreme Court on December 12, 1966, and cited as 385 U.S. 214.
This case held in effect that the circumventing of quota restrictions by

misrepresentation and fraud would not render a person otherwise
inadmissible so as to preclude relief from deportation under section
241(f), Immigration and Nationality Act.

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Interim Decision #1898
In the instant case, it would appear that relief under section 241(f),
as interpreted in the Scott case (supra) would be available to the
respondent if he was otherwise admissible to the United States. We
concur with the conclusion of the special inquiry officer that the

`respondent was not otherwise admissible to the United States by reason of his two convictions for crimes involving moral turpitude, which
thus rendered him inadmissible under section 212(a) (9) of the Act.
It will not avail to argue that he obtained a waiver of this ground of

.exclusion under section 212(h) of the Act since such waiver was obtained itself on the basis that his exclusion would result in extreme
hardship to his United States citizen spouse. He was not married to a
United States citizen at that time and such waiver is, as held by the
special inquiry officer, completely null and void. The respondent was
not entitled to this nonquota immigrant visa because the person filing

the visa petition on his behalf was neither his wife nor a United States
citizen as alleged in the petition. The respondent had contracted a
marriage to a United. States citizen on August 5, 1961, but at that

time he was still married to his first wife whom he had married on
August 19, 1959 and by whom he had two children.
The respondent was clearly excludable on both occassions when he
entered the United States, on February 4, 1962 and again on December 13, 1962 when he entered the United States as a returning resident
alien. This being the case, the respondent is deportable as charged and
we will thus affirm the decision of the special inquiry officer and dismiss
the appeal. We will not disturb the grant of voluntary departure.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

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Cite as 26 I&N Dec. 609 (BIA 2015)

Interim Decision #3841

Matter of J-R-R-A-, Respondent
Decided June 11, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
If an applicant for asylum has competency issues that affect the reliability of his
testimony, the Immigration Judge should, as a safeguard, generally accept his fear of
harm as subjectively genuine based on the applicant’s perception of events.
FOR RESPONDENT: Kedron Benham, Esquire, Springdale, Arkansas
BEFORE: Board Panel: NEAL, Chairman; HOLMES and GREER, Board Members.
GREER, Board Member:

In a decision dated November 21, 2013, an Immigration Judge found the
respondent removable under section 212(a)(7)(A)(i)(I) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2012), and denied his
applications for asylum, withholding of removal, and protection under the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10,
1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the
United States Apr. 18, 1988). The respondent has appealed from that
decision. The appeal will be sustained in part, and the record will be
remanded for additional consideration of the respondent’s competency.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Honduras. He conceded
removability through counsel and applied for relief from removal, claiming
that he would be harmed upon his return to Honduras by a man who
murdered his brother approximately 15 years ago.
During proceedings before the Immigration Judge, the respondent had
difficulty meaningfully answering basic questions. His testimony was
confusing and disjointed. His attorney expressed concern that the
respondent has a cognitive disability that affected his ability to testify.
However, counsel did not develop the record in this regard. Although the

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Interim Decision #3841

Immigration Judge observed that the respondent’s behavior and testimony
were unusual, he did not evaluate the respondent’s mental competency.

II. ANALYSIS
In this decision, we address the safeguard of accepting an asylum
applicant’s fear of harm as subjectively genuine where competency issues
affect the reliability of the applicant’s testimony.
A. Respondent’s Mental Competency
As a threshold matter, based on observations made by both the
Immigration Judge and the respondent’s counsel, we conclude that the
respondent’s competency should have been assessed. See Matter of
M-A-M-, 25 I&N Dec. 474 (BIA 2011). In particular, the record reflects
that the respondent was confused and frequently provided nonresponsive
testimony before the Immigration Judge. For example, it is not in dispute
that the respondent arrived in the United States in June 2012, but he
testified that he arrived in 2006. He also stated that 2006 was “last year”
at the time of the hearing, which occurred in 2013. In addition, the
respondent laughed inappropriately during the hearing.
Based on these indicia of incompetence, the Immigration Judge should
have taken measures to determine whether the respondent is competent to
participate in these proceedings under the guidelines we outlined in Matter
of M-A-M-, 25 I&N Dec. at 479−81. Accordingly, we will remand for the
Immigration Judge to determine whether the respondent is competent for
purposes of participating in immigration proceedings according to the
framework set forth in that decision.
B. Credibility Assessment in Mental Competency Cases
Given the facts of this case, we also find it appropriate to provide
guidance regarding credibility assessments in cases involving aliens who
are incompetent or who have serious mental health or cognitive issues that
may affect their testimony, particularly with respect to asylum and related
claims for relief from removal.
The Immigration Judge found that the respondent was not credible
based on his demeanor and the inconsistencies in his testimony, which the
Immigration Judge characterized generally as disjointed, confusing, and
“self-serving.” The Immigration Judge acknowledged counsel’s concerns
that the respondent may have cognitive difficulties, but he opined that such
problems are “not a license to give incredible testimony.” Based on his
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Interim Decision #3841

finding that the respondent was not credible, the Immigration Judge denied
the respondent’s claim without any further evaluation. On appeal, the
respondent argues that the deficiencies in his testimony are the result of a
cognitive disability or mental illness and are not reflective of an attempt to
deceive the Immigration Judge.
To establish that a fear is well founded for purposes of asylum, the
applicant must have a genuine subjective fear of persecution in the country
of return and present evidence establishing an objective situation in which
that fear is reasonable. Perkovic v. INS, 33 F.3d 615, 620−21 (6th Cir.
1994) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 430−31, 440 (1987));
see also Gilaj v. Gonzales, 408 F.3d 275, 283−84 (6th Cir. 2005).
Therefore, an assessment of an asylum applicant’s claim involves both
subjective and objective components. An applicant may meet his burden of
proof through his own testimony standing alone, but only if the trier of fact
is satisfied that the testimony “is credible, is persuasive, and refers to
specific facts” sufficient to demonstrate that the applicant is a refugee.
Section 208(b)(1)(B)(ii) of the Act, 8 U.S.C. § 1158(b)(1)(B)(ii) (2012).
Generally, when determining an asylum applicant’s credibility, we are
concerned with whether an individual is presenting false information in an
attempt to bolster or fabricate an application for relief. However, in this
case, we address the complicating issue of assessing an asylum claim where
an individual has a mental health condition that may result in delusions or
an otherwise unreliable account of events, but where there may be no
deliberate fabrication involved. Cf. Slyusar v. Holder, 740 F.3d 1068
(6th Cir. 2014) (upholding an adverse credibility finding, in a case with
no competency issues, based on inconsistencies between the applicant’s
testimony and information she previously gave to the Department of
Homeland Security).
A situation could arise in which an applicant who is deemed
incompetent by the Immigration Judge sincerely believes his account of
events, although they are highly implausible to an outside observer.
Alternatively, the individual could be deemed competent for purposes of
his hearing, although he has been diagnosed with a mental illness or serious
cognitive disability and may exhibit symptoms that affect his ability to
provide testimony in a coherent, linear manner. See Matter of M-A-M-,
25 I&N Dec. at 480 (indicating that even if an alien is deemed to be
medically competent, there may be good cause for concern about the ability
to proceed without safeguards). In such circumstances, the factors that
would otherwise point to a lack of honesty in a witness―including
inconsistencies, implausibility, inaccuracy of details, inappropriate
demeanor, and nonresponsiveness―may be reflective of a mental illness or
disability, rather than an attempt to deceive the Immigration Judge.
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Interim Decision #3841

See section 208(b)(1)(B)(iii) of the Act (discussing the factors to consider
in assessing credibility).
Such scenarios need to be assessed on a case-by-case basis, but where a
mental health concern may be affecting the reliability of the applicant’s
testimony, the Immigration Judge should, as a safeguard, generally accept
that the applicant believes what he has presented, even though his account
may not be believable to others or otherwise sufficient to support the claim.
The Immigration Judge should then focus on whether the applicant can
meet his burden of proof based on the objective evidence of record and
other relevant issues. 1 This safeguard will enhance the fairness of the
proceedings by foreclosing the possibility that a claim is denied solely on
testimony that is unreliable on account of the applicant’s competency issues,
rather than any deliberate fabrication. See Hachem v. Holder, 656 F.3d 430,
434 (6th Cir. 2011) (stating that the totality of the circumstances must be
considered in evaluating an applicant’s credibility); El-Moussa v. Holder,
569 F.3d 250, 256 (6th Cir. 2009).

IV. CONCLUSION
We conclude that remand is warranted for the Immigration Judge to
assess the respondent’s mental competency because of the indicia of
incompetency in the record. The parties should be afforded an opportunity
to supplement the record with evidence regarding any mental health
condition or serious cognitive disability that may affect the respondent’s
competency. If the Immigration Judge determines that competency issues
relate to the respondent’s ability to provide reliable testimony, he should
reassess his factual findings based on the guidance given in this decision.
He should then issue a new evaluation of the respondent’s claim, including
an assessment of any other relevant issues. Accordingly, the respondent’s
appeal will be sustained in part and the record will be remanded for further
proceedings.
ORDER: The appeal is sustained in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
1

We recognize, of course, that many issues are involved in the adjudication of an
asylum claim and that credibility is not always the determinative issue. However, while
there are situations in which it may be appropriate for Immigration Judges to make
adverse credibility findings in cases involving incompetent respondents, the better course
in most instances would be for the Immigration Judge to accept the subjective belief of
the respondent as genuine and proceed to the other requirements for the relief sought.

612


Interim Decision *1761

MATTER OF NODAILL

In Deportation Proceedings
A-12615416
Decided by Board July

08,

1987

Conviction of the offense of indicting upon a eland corporal injury resulting
in a traumatic condition in violation of section. 273(d) of the California
Penal Code Is conviction of a crime involving moral turpitude.

Mums:
Order: Act of 1862—Section 241(a) (4) (8 U.B.O. 1251(0 (4)]--cionvieud of
crime involving moral turpitude within five years after
entry, to wit, child beating.
ON Ilescara or lizarommyr:

Ox Buzau? or SEMVICS:

Howard R. Harris, Esquire

Sam I. Feldman

1019 National Avenue
National City, Calif. 92050
(Brief filed)

Trial Attorney
(Brief filed)

The respondent, a native and citizen of Mexico, appeals from an
order entered by the special inquiry officer on May 18, 1967 which
directs her deportation to Mexico on the charge that within five years
after her entry, she was convicted of a crime involving moral turpitude, to wit, child beating, in violation of section 273(d) of the
California Penal Code. Exceptions have been taken to the finding
that the crime defined by section 273(d) of the California Penal
Code involves moral turpitude.
The respondent is a female married alien, 35 years of age, who was
admitted to the United States for permanent residence on June 14,
1961 at the port of San Ysidro, California. She was convicted in the
Superior Court of the State of California on April 15, 1965 for the
offense of inflicting corporal injury upon a child, in violation of section 273(d) of the California Penal Code. She was sentenced to confinement in the California Institution for Women for a term of not
more than two years as provided by the statute.
It is conceded by counsel that the respondent was convicted of the
offense defined by section 273(d) of the California Penal Code. Section 273 (d) reads in pertinent part as follows :
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Interim Decision #1761
. . . any person who wilfully Inflicts upon any child any cruel or inhuman
corporal punishment or injury resulting in a traumatic condition is guilty of
a felony .. .
Counsel argues that section 273(d) of the California Penal Code does
not necessarily involve moral turpitude. Counsel maintains that the
conduct of a person convicted of a violation of section 273 (d) could
be the result of a quickness of temper or a weakness of character and
not be accompanied by a vicious and corrupted mind.
The information filed against the respondent on February 24, 1965
reads in part as follows:
Between the 26th day of December 1964, and the 7th day of January 1965 (the
respondent) . . . did wilfully, unlawfully and feloniously make an assault and
Inflict a

corporal injury upon Oscar Nodahl. then and there a minor child under
the age of 21 years, to wit, of the age of 9 years, and that the said assault did

result in a traumatic injury to the said Oscar Nodahl, a human being.

Moral turpitude refers to conduct which is inherently base, vile or
depraved and contrary to accepted rules of morality. The term "child,"
as used in section 278(d) (supra) includes children of tender years,
who by reason of their physical immaturity are helpless against the
cruelty of their parents. The California statute by its very terms
defines an assault upon a child which is "cruel or inhuman corporal
punishment or injury" which results in a "traumatic condition." A
traumatic condition has been defined as a wound or other abnormal
bodily condition resulting from the application of some external force.
People v. Stewart,188 C.A. 2, 88,10 C.R. 217.
We conclude on the basis of the foregoing that section 273(d) of
the California Penal Code defines an act of baseness, vileness, or depravity contrary to the accepted mores of society. We affirm the order
entered by the special inquiry officer and will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

389