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: ON BEHALF OF SERVICE:
Donald L. Ungar, Esquire Stephen M. Suffin
517 Washington Street Trial Attorney
San Francisco, California 94111 (Brief filed)
(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,
782
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).
783
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.
784
