Matter of Mincheff
| Decision Date | 22 June 1971 |
| Docket Number | A-12343764,Interim Decision Number 2087 |
| Citation | 13 I&N Dec. 715 |
| Parties | MATTER OF MINCHEFF In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This is a Service appeal from an order of a special inquiry officer admitting the applicant to the United States as a returning resident alien. The special inquiry officer concluded that the applicant had not been effectively "relieved" from service in our armed forces within the meaning of section 315(a) of the Immigration and Nationality Act and was, therefore, not inadmissible under section 212(a)(22) of that Act as an alien ineligible to citizenship. We concur in that conclusion and dismiss the appeal.
The facts are not in substantial dispute. The applicant is a 24 year old male alien, a native and citizen of Argentina, who is married to a permanent resident of the United States. He first entered the United States on September 17, 1961, when he was admitted as an immigrant. On attaining the age of 18 he registered under the Selective Service laws with his local draft board. On March 17, 1965 he was classified 1-A, the classification given a registrant who is immediately available for induction. He passed his pre-induction physical examination and on January 10, 1966 he was ordered to report on January 25, 1966 for induction into our armed forces.
As previously instructed by the Argentine consul in New York City, the applicant brought his induction order in to the consul. The latter sent it to the Argentine Embassy, which arranged through the State Department to invoke in the applicant's behalf of the exemption provisions of our treaty with Argentina. On January 21, 1966, the applicant was notified by his draft board that his induction was postponed until further notice. Later that year, he was notified by the Argentine consul that he had been called up for service in the Argentine army and he was directed to report in Argentina for induction on March 2, 1967.
In the meantime, because of a change in our Selective Service System procedures, the applicant was notified that he must submit a written request if he wished continued postponement of his induction into our armed forces. In a letter dated November 16, 1966, his draft board told him, among other things:
We have now been advised by the Director of Selective Service that in order for administrative action to be taken to continued [sic] the postponement of your induction, it will be necessary for you to sign the attached request, in duplicate, for relief from military service on the basis of your alien status . . . If you decline to sign such statement, or if these forms are not received within thirty days, your postponement will be terminated, and you will be directed to report for induction under your outstanding Order to Report for Induction. [Emphasis supplied] If you request exemption by signing the attached forms, the Director of Selective Service has requested the Local Board to reopen your classification and classify you anew, and if you are again classified 1A subsequent processing in your case will be held in abeyance until further notice [Emphasis supplied].
Enclosed was the formal exemption request.
Having failed to submit the required written request, the applicant was ordered to report for induction on January 16, 1967. He reported as directed, explained his dilemma concerning the Argentine draft call, and was told his only remedy was to return to his local draft board and sign the exemption form. He telephoned the Argentine consul from the draft board and was told to sign the form. He asked the consul whether he would have trouble returning to this country if he signed the form and was told he would not. He thereupon executed the request for relief (Exhibit 5(b)). Two days later, a reentry permit was issued to him, valid to January 18, 1968. On February 9, 1967, he was again classified 1-A and further processing was postponed. So far as appears from the record, he is still classified 1-A.
On January 27, 1967, the applicant left the United States. After visiting briefly with his wife's relatives in Brazil, he served in the Argentine army for four months. On his return to the United States, his right to readmission was questioned and he was given a hearing before a special inquiry officer, who ordered him admitted. On this appeal, the Service contends that on this record that decision was erroneous.
The principal question presented is whether the applicant was "relieved" from service in our armed forces within the meaning of section 315(a) of the Act.1 The statute presents a two-pronged requirement before an alien is rendered ineligible to citizenship: an application for exemption plus actual relief from service. The cases have held that, to debar, the relief must be "effective." In exchange for permanent ineligibility to citizenship, the alien must achieve permanent exemption from military service mere temporary postponement of induction will not do.2 We have viewed the action of the Selective Service System in the applicant's case in the light of the legislative and administrative history of draft exemption. We conclude that what the applicant received from his draft board was less than the permanent exemption which alone constitutes effective relief from military service.
The United States is a party to a number of treaties with various nations containing reciprocal provisions for draft exemption for their respective nationals. Article X of the Treaty of Friendship, Commerce, and Navigation with Argentina, dated July 27, 1853, 10 Stat. 1005, T.S. No. 4, grants exemption from compulsory military service to citizens of Argentina residing in the United States. This bounty was formerly available to such treaty aliens even though they were permanent residents of the United States. In 1951, some doubt was cast on the continued availability of such exemption to permanent resident treaty nationals. In that year, Congress amended the Selective Service laws to provide that "... aliens admitted for permanent residence in the United States shall not be so exempted," 50 U.S.C. App. §456(a) (1964).
Conflicting views were expressed among the courts and the Executive Departments whether the 1951 legislation altered the preexisting treaty provisions.3 The Selective Service System adhered to the view, that, under the 1951 amendment, it lacked power to exempt permanent resident treaty nationals.4 Pending Congressional consideration of bills sponsored by the State Department which would have clarified the exemption power, the Selective Service System adopted internal unpublished procedures whereby permanent resident treaty aliens classified 1-A would continue to be called for induction, but the induction order would be cancelled if they signed a written request for relief. If ineligible for any other classification, they would continue in class 1-A but further processing would be postponed until further notice.
The Selective Service memorandum dated November 10, 1966 to the applicant's local draft board concerning his case (Exhibit 15, page 23) contains the following significant admonition: " You are reminded that a permanent resident alien is not eligible for Class IV-C on the basis of a request for exemption..."
The question was finally settled on April 1, 1968 in an opinion of the Attorney General, 42 Op. Att'y Gen. No. 28. In it, he concluded that the power to exempt permanent resident aliens still exists under the treaties as an independent source of law distinct from the Selective Service statute; and that an alien who applies for and is granted such relief faces the bar of sections 315 and 212(a)(22). The Director of Selective Service remained unconvinced5 and when the question was next raised in court, a brief amicus curiae expressing his disagreement was filed in his behalf. The court adhered to the views set forth by the Attorney General, Itzcovitz v. Selective Service Local Board No. 6, 301 F. Supp. 168 (S.D. N.Y., 1969), appeal dismissed as moot, 422 F.2d 828 (2...
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