Itzcovitz v. SELECTIVE SERVICE LOCAL BD. NO. 6, NY, NY

• Decision Date: 01 September 1971
• Docket Number: No. 820,Docket 35664.,820
• Citation: 447 F.2d 888
• Parties: Diego Ricardo ITZCOVITZ, a permanent resident alien residing in New York, New York, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NUMBER 6, NEW YORK, NEW YORK, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

447 F.2d 888 (1971)

Diego Ricardo ITZCOVITZ, a permanent resident alien residing in New York, New York, Plaintiff-Appellant, v. SELECTIVE SERVICE LOCAL BOARD NUMBER 6, NEW YORK, NEW YORK, et al., Defendants-Appellees.

No. 820, Docket 35664.

United States Court of Appeals, Second Circuit.

Argued June 8, 1971.

Decided September 1, 1971.

Burt Neuborne, New York City (Paul Chevigny and Alan H. Levine), New York Civil Liberties Union, New York City (David Orlin, New York City, of counsel), for plaintiff-appellant.

Daniel Riesel, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, Alan B. Morrison, Asst. U. S. Atty., of counsel), for defendants-appellees.

Before FRIENDLY, Chief Judge, and HAYS and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Appellant, Diego Ricardo Itzcovitz, a permanent resident alien, seeks a declaratory judgment enabling him to leave the United States for a brief time and a limited purpose, without the threat of being declared an excludable alien upon his return. The purpose of his proposed trip is to attend a special training course in Tel Aviv conducted by his employer, El Al Israel Airlines. He asserts and the Government concedes that, because he exercised his treaty right¹ as an Argentine national to claim exemption from U. S. military service, he would be excludable upon re-entry into the United States, under the provisions of the Immigration and Nationality Act of 1952, 66 Stat. 163 as amended,² and his name would therefore be placed in the "Lookout Book," the Immigration and Naturalization Service's list of currently excludable aliens who might be seeking re-entry, apparently distributed to INS agents at points of entry into the United States. Appellant contends that insofar as the provisions of the Immigration and Nationality Act of 1952 do brand him an excludable alien, the provisions place an impermissible burden on his rights under the Argentine Treaty³ which, incidentally, is similar to fifteen other treaties, principally of Friendship, Commerce and Navigation in granting exemption from military service.⁴ Appellant concedes for purposes of this appeal that by exercising his treaty right he has waived his eligibility for citizenship under Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951),⁵ but he argues that such a waiver does not mean he may be declared an excludable alien.

Alternatively, appellant claims that as an alien lawfully admitted for permanent residence, temporarily leaving the country at the behest and under the requirements of his employer, he would not be making an "entry" into the United States upon his return from Israel.

The court below did not reach the merits, but found the case unripe, and dismissed the action for lack of a "justiciable controversy," without prejudice to appellant's right later to seek relief from an exclusion order, if and when issued. We disagree with the court below and think that appellant should not be forced into the cul de sac of leaving the country, only to be "subjected," on his return, "to the wearisome routine of immigration procedure as though he had never lived here," ILWU Local 37 v. Boyd, 347 U.S. 222, 226, 74 S.Ct. 447, 449, 98 L.Ed. 650 (1954) (dissenting opinion), and the probability, in this case, of exclusion. Our view is taken from the perspective of the extensive INS-Itzcovitz history, and has in sight the concession made on argument that appellant would upon departure immediately take his place in the pages of the "Lookout Book." That extensive history follows.

Appellant came to this country from Argentina with his parents in 1966 and was admitted as a permanent resident alien. Although he had completed his Argentine military obligation, he was required as a permanent resident alien of draft age to register with our Selective Service System. 50 U.S.C.App. § 453. He did so and was classified I-A on October 24, 1966. On March 29, 1967, he received a notice to report for induction. The Argentine Consulate in New York advised him that he was entitled to exemption from military service pursuant to the Argentine Treaty, and he thereupon applied to our Department of State for exemption. Despite the State Department's best efforts, Itzcovitz was advised by Selective Service, erroneously, as it later turned out, that the draft exemption granted by the Treaty had been impliedly abrogated by the passage of the Selective Service Act. On May 22, 1967, one day before he was required under threat of arrest and prosecution to report for induction, he left the United States and was reclassified IV-C as an alien who had fled to avoid military service. On December 16, 1968, Oestereich v. Selective Service System, 393 U. S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), held that there may be pre-induction judicial review of the classification of a registrant for the purposes of determining the applicability of unequivocal statutory exemptions. Three weeks later Itzcovitz sued for injunctive relief against the Selective Service System's outstanding induction order and against INS's refusal to permit him to return to the United States.

The late Judge Herlands ruled that he had jurisdiction under Oestereich, supra, that Selective Service had no authority to deny Itzcovitz his claimed treaty exemption to which he had a "plain and unequivocal" right, and granted him injunctive relief against Selective Service, but denied injunctive relief against the INS on the ground that Itzcovitz had not exhausted his administrative remedies. Itzcovitz v. Selective Service System, 301 F.Supp. 168 (S.D.N.Y.1969). Itzcovitz appealed from the denial of relief against the Immigration Service, and the Government cross-appealed from the granting of relief against the Selective Service System, but shortly before oral argument in this court the Government withdrew its cross-appeal. During oral argument a panel of this court consisting of (then Chief) Judge Lumbard, Judge Kaufman and Judge Hays suggested that Itzcovitz be permitted to return to this country and resume his permanent resident status. On November 26, 1969, in a letter to that panel, the Government agreed that it was "now prepared to admit Itzcovitz," without conceding his eligibility for citizenship, and affirmed to the court that "upon Itzcovitz's return" he would "not be subject to an exclusion proceeding and will be deemed to have resumed his permanent resident status." Subsequently, on February 10, 1970, the District Director of INS notified the United States Attorney for the Southern District of New York that "steps have been initiated to have Mr. Itzcovitz's name removed from our Service lookout book." He had returned on January 24, 1970. His appeal was then dismissed as moot by the panel in a per curiam opinion noting that "the government has conceded the propriety of admitting Itzcovitz into the country, and the parties have informed us of his return." Itzcovitz v. Selective Service Local Board No. 6, 422 F.2d 828 (2d Cir. 1970).

Only after the Immigration Service had ignored letters written on March 12, June 18 and September 23, 1970, inquiring whether a brief departure from the country would result in his classification as an excludable alien on his return, did appellant institute this action for declaratory judgment. Appellant alleges that he is employed by El Al Israel Airlines as a passenger agent at Kennedy International Airport, and that one of El Al's employment requirements is a three-week course, given in Tel Aviv, on the prevention of airline hijackings. El Al requested that the plaintiff attend a session to be conducted from October 18 until November 10, 1970.⁶

Both appellant and INS moved for summary judgment below, INS claiming, among other things, that as an alien ineligible for citizenship under § 315(a) of the Act, 8 U.S.C. § 1426(a), Itzcovitz may be an excludable alien under § 212(a) of the Act, 8 U.S.C. § 1182(a) (22).

We disagree with the conclusion of the court below that this controversy is not ripe for adjudication. Having once been unlawfully excluded, appellant rightfully wonders whether a two- or three-week departure on employer's business would raise again the spectre of exclusion, this time possibly without the grace of an INS retrenchment allowing appellant to re-enter and resume his status as a permanent resident alien. The Immigration Service admits and makes it very clear — clearer to us, perhaps, than it did to the court below — that it would seek to exclude appellant after his sojourn in Tel Aviv. Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), tells us that the ripeness doctrine "is to prevent the courts * * * from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized * * *." We are required to "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387 U.S. 149, 87 S.Ct. 1515.

We believe there is hardship in the case of this appellant, who has spent years seeking to retain his permanent resident alien status and is still left to guess whether he can go to Israel for a brief training course required by his employer. His case is not abstract, nor the issue without immediate concurrent significance. The issue is one which the courts can and appropriately should decide. Cf. Loos v. INS, 407 F.2d 651 (7th Cir.), cert. denied, 396 U.S. 877, 90 S.Ct. 150, 24 L.Ed.2d 135 (1969).⁷ The Government's suggestion that within two years the appellant could apply to the Attorney General for a waiver of the excludability bar under 8 U.S.C. § 1182(c) is not meaningful since such a waiver can be applied for only by an alien who has voluntarily proceeded abroad, thus subjecting himself to exclusion. Similarly, the Government's suggestion that...