G

                            DIA t 1ER OF G

                    In DEPORTATION Proceedings

                                A-10955229
                       Decided by Board April 24, 1958

Entry—Under military orders—Failure to comply with conditions of enlistment
 under Act of June 30, 1990, am amended, deprivon alien of right to remain in
 U.S.—Deportable on "no visa" charge.

(1) Alien dishonorably discharged from United States Armed Forces prior to
  completing 5 years' service is not entitled to claim lawful residence in the
  United States on basis of foreign enlistment pursuant to Act of June 30,
  1950, as amended, and subsequent entry as member of Armed Forces.
(2) Such alien, having declined opportunity to depart voluntarily from the
   united      hectonno deportable on charge that he entered the United States
  as an immigrant not in possession of an immigrant visa.

CHARGE:

Order:   Act of 1952—Section 941(a) (I) to u.s,c. 1231(ii) (1))—Fixcluaoble
           at entry—Immigrant—No valid visa.

                          BEFORE THE BOARD

   Discussion: This case is before us on appeal from a decision
 entered by the special inquiry officer on January 9, 1958, directing
 that the rorpondent be deported from the United States on the
 charge contained in the order to show cause. Exception is taken
 to the finding of deportability.
   The respondent is a 30-year-old native of Bulgaria who alleges
 that he is now stateless. His only entry into the United States occurred at the port of New York on November 9, 1955, as a member
of the Armed Forces of the United States. He was not in possession of an immigrant visa. He testified that he entered this country
pursuant to a law which provided that if he served honorably in the
army for 5 years, he could obtain citizenship. He intended to stay
in the United States permanently. He admitted that he received an
undesirable discharge from the Armed Forces of the United States,
effective January 9, 1958, pri6r to completing 5 years' service. He
also admitted that he was offered the opportunity to depart from
the United States voluntarily but that he declined to do so. At the
hearing he also declined to apply for voluntary departure and

                                    21
 stated: "I do not wish to leave the country on my own. If they
 want me they can deport me!'
    The respondent apparently joined the United States Army under
 the provisions of the Act of June 30, 1950 (Public Law 597, 81st
 Congress, 2d Session) as amended by section 402(e) of the Immigration and Nationality Act. Such amendment appears as a note to
 8 U.S.C. 1440 and provides in pertinent part that:
   • • • An alien enlisted or reenlisted pursuant to the provisions of this Act
who subsequently enters the United States … pursuant to military orders
shall, if otherwise qualified for citizenship, and after completion of five or
more years of military service, if honorably discharged therefrom, be deemed
to have been lawfully admitted to the United States for permanent residence
within the meaning of such section 329(a) [Immigration and Nationality Act].
   Counsel takes issue with the statement of the special inquiry of:G-
 eer that since the respondent does not fall within any of the provisions of section 101(a) (15) of the Immigration and Nationality
 Act the respondent must, pursuant to section 214(b) of said act, be
 presumed to be an immigrant at the time of entry in November 1955.
 Counsel contends that the respondent entered under special legislation, neither as a nonimmigrant nor an immigrant. It is further
 contended by counsel that although the respondent did not serve for
 5 years in the Armed Forces of the United States and did not receive an honorable discharge, the respondent's entry into the United
 States was lawful and under special legislation and that the respondent is, therefore, not deportable.
   Section 284 of the Immigration and Nationality Act, which provides for the admission into the United States of alien members of
the armed forces, also provides that nothing contained in such
section shall be construed to give to or confer upon any such alien
any other privileges, rights, benefits, prPmptinmx, or immunities under the act which are not otherwise specifically granted by the act.
   Respondent's admission into the United States was not for permanent residence. He has neither the 5 years of military service nor
the honorable discharge required under the provisions of the act
of June 30, 1950, as amended by section 402(e) of the Immigration and Nationality Act and, hence, has not acquired legal residence status (Dart Cena v. United States, 

, C. 4. 9,
1957). As he has not met the conditions which would have changed
his admission to that of a. lawful admission for permanent residence,
ho becomes subject to deportation am an immigrant who was not in
possession of an immigrant visa at the time of entry. He has been
offered the opportunity to depart voluntarily but has declined to do
so. Under the circumstances, it is concluded that he is subject to deportation on the charge contained in the order to show cause.
  The contentions raised in this case by counsel are somewhat
similar to the contentions rejected by the court in United States ex

                                     22
rel. Sommerkamp v. Zimmerman, 

 (C.A. 3, 1949).
There, a native of Germany was brought to the United States in 1942
from Guatemala for intermnent. In 1946, after the end of the war,
a warrant of arrest was issued by the Service charging that Sommerkamp was deportable under the Immigration Act of 1924 as an
immigrant not in possession of the proper documents at the time
of entry. After he failed to comply with an order of the Board
of Immigration Appeals granting him voluntary departure, he was
taken into custody by the Service in December 1948 for deportation. It was the contention of Sommerkamp that since he was
brought into the L'uitc,1 States involuntarily he was not an immigrant within the meaning of the Immigration Act of 1924 and was,
therefore, not subject to deportation under that Act. The court
held that after the time permitter) for voluntary departure had expired the presence of Sommerkamp in the United States was voluntary, that he had made "an entry" within the meaning of the basic
immigration act, and that he could be deported as an "immigrant"
who had not satisfied the requirements of the law.
   In view of our finding that the special inquiry officer has correctly
concluded that the respondent is subject to deportation on the
charge contained in the order to show cause, the appeal Will be
dismissed.
  Order: It is ordered that the appeal be and the same is hereby
dismissed.




                                  23