Interim Decision #2155
MATTER OF DUNN
In Deportation Proceedings ,
A-8464157
Decided by Board June 19, 1972
(1) Although respondent, immediately following his refusal to comply with an
order to report for induction into the armed forces in 1966, departed the
United States and abandoned his permanent resident status, he was not
relieved from the duty of complying with an order to report for induction in
June 1968, notwithstanding he may not have been a permanent resident alien
at that time.
(2) Respondent's deportability predicated on inadmissibility under section
212(a)(22) of the Immigration and Nationality Act on the ground he departed
the United States to avoid training or service in the armed forces, is
established by clear, convincing, and unequivocal evidence on the basis of his
August 30, 1966, statement of refusal to comply with an order of the Selective
Service Board to report for induction, his conviction for refusing to submit to
induction, and his testimony to the effect he departed the United States in
September 1966 to avoid induction.
CHARGES:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]— Excludable at time
of entry—no immigrant visa—section 212(aX20) [8 U.S.C.
1182(a)(20)]
Act of 1952—Section 241(aX1) [8 U.S.C. 1251(aX1)]—Departed to avoid
training or service in armed forces—section 212(a.)(22)
[8 U.S.C. 1182(a)(22))
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
George C. Fisher, Esquire Bernard J. Hornbach
400 Charming Avenue Trial Attorney
Palo Alto, California 94302 (Brief filed)
(Brief filed)
This is an appeal from an order of the special inquiry officer
finding the respondent deportable as charged in the order to show
cause. His application for voluntary departure was denied and an
order of deportation entered. The appeal will be dismissed.
The respondent, a 27-year-old native and citizen of Canada, was
admitted to the United States for permanent residence at Detroit,
Michigan on April 8, 1953. His Selective Service Board ordered him
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to report for induction on September 28, 1966. He informed the
Board on August 30, 1966 that he would not comply with the order
because he felt that "conscription is amoral and totally unjustified" (Exh. 4). He departed for Canada on September 2, 1966.
The respondent appeared at the office of the Immigration and
Naturalization Service at Vancouver, B.C., Canada on September
6, 1966 and advised that he was abandoning his permanent
residence in the United States. He surrendered his alien registration receipt card (Form I-151). Following the surrender of his alien
registration receipt card, the respondent returned to the United
States on several occasions. He was indicted in the United States
District Court for the Northern District of California for violation
of Title 50, Appendix U.S.C. section 462 - Refused to Submit to
Induction. He was convicted on September 6, 1968 upon a plea of
guilty and sentenced to imprisonment for a period of two years, 18
months of which were suspended. The respondent served six
months at McNeil Island Penitentiary and thereafter was placed on
probation for 18 months. He testified that he was last admitted to
the United States as a visitor in January of 1971 (p. 26).
The order to show cause charges that the respondent is subject
to deportation in that at the time of entry he was excludable
under section 212(a)(20) of the Immigration and Nationality Act as
an immigrant not in possession of a valid unexpired immigrant
visa and under section 212(a)(22) of the Act as an alien who
departed from or remained outside of the United States to avoid or
evade training or service in the armed forces. The special inquiry
officer found the respondent deportable on both charges.
The special inquiry officer concludes that the respondent abandoned his permanent residence when he departed from the United
States in 1966 to avoid training or service in the armed forces of
this country (p. 3, special inquiry officer's opinion). The record
establishes, however, that the respondent was convicted in September of 1968 for refusal to submit to induction on June 14, 1968
(see record of conviction attached to Exh. 5). The question arises as
to whether the respondent would be liable to induction if he were
not a permanent resident alien in 1968.
The fact that the respondent may not have been a permanent
resident alien did not relieve him from the duty of submitting for
induction into the armed forces. The applicable statute, section 12,
Universal Military Training and Service Act, 50 U.S.C. App.,
section 462, reads in pertinent part:
Any ... person ... who ... evades ... service in the armed forces or any
requirements of this title ... or of said rules, regulations or directions, or who in
any manner shall knowingly fall or neglect or refuse to perform any duty
required of him under or in the execution of this title, or rules, regulations or
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directions made pursuant to this title ... shall upon conviction be punished
by imprisonment.... (Emphasis supplied.)
An induction order imposes a continuing duty on a "registrant"
to submit for induction regardless of the fact that he may have
abandoned his permanent residence following a departure to
evade service in the armed services. Cf. White v. United States, 403
F.2d 1005 (C.A. 8, 1968), cert. denied
89 S.Ct. 1196 (1969); United
States v. Prince,
398 F.2d 686 (C.A. 2, 1968); Silverman v. United
States,
220 F.2d 36 (C.A.8, 1955). The Selective Service regulations
implementing section 12 of the Universal Military Training and
Service Act, supra, provide in substance that it is a continuing
duty of all "registrants" to report for and submit to induction
"regardless of the time when or the circumstances under which a
registrant fails or failed to report for induction pursuant to an
Order to Report for Induction," 32 CFR 1642.2 and 1642.15. Under
the statute and the regulations the order for the respondent to
report for induction in 1968 was proper regardless of his resident
status at that time.
Counsel contends that the respondent is not subject to deportation pursuant to section 212(a)(22) of the Immigration and Nation.
ality Act because he departed from the United States for the
primary purpose of attending college in Canada and not for the
purpose of avoiding or evading training or service in the armed
forces of the United States. Counsel relies on the Board's decision
in Matter of Nunez-Toro,
11 I. & N. Dec. 501, 503 (BIA, 1966), which
holds that an exclusion or deportation pursuant to section
212(aX22) may occur only if the alien's "primary purpose for
departing or remaining abroad was to avoid training or service in
the armed forces." (Emphasis supplied.)
We find no support in the evidence for counsel's contention. The
respondent testified in an exclusion proceeding on October 11, 1966
(p. 10, Exh. 3) as follows:
On 6 September I left for Canada because I didn't want to report [for
induction]. and I didn't want to stick around California ... I felt they [Selective
Service] would pull me out of school. I tried to go to the University of British
Columbia but I was too late to register.
We note that on this occasion the respondent was applying for
admission as a nonimmigrant student to resume his studies at
Stanford University (p. 3 of Exh. 3). When questioned as to how
long he had been in a state of mind that he would not serve in the
armed forces of the United States, the respondent replied, "it is
hard to pin point, but probably the 1st of September of this year
[1966]" (p. 12, Exh. 3). The respondent departed for Canada on
September 2, 1966. He surrendered his alien registration receipt
card (Form I-151) at the office of the Immigration and Naturaliza-
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tion Service in Vancouver, B.C., Canada on September 6, 1966. He
stated on this occasion that he was abandoning his residence in
the United States (Exh. 2).
The respondent's testimony at the deportation hearing of July 7,
1971 is of the same tenor. He testified, "I wasn't going to serve in
the Armed Forces of the United States" (p. 16). When questioned
as to whether he really went to Canada to avoid the draft, the
respondent answered:
A. ... what was in my mind was that I wanted to continue going to school and
the United States wasn't going to permit me going to school...anywhere.
Q. Because they were going to draft you?
A. Sure.
The respondent's testimony, his conviction for refusing to submit to induction and his statement on the questionnaire, dated
August 30, 1966, which accompanied the Selective Service order to
report for induction (Exh. 4) 1 satisfy us that deportability under
section 212(aX22) has been established by evidence that is clear,
unequivocal and convincing.
We find no merit to counsel's contention that the Government is
estopped from deporting the respondent. Counsel's argument in
this regard is based upon claims (I) that the respondent was
expressly assured that he would not be deported if he pleaded
guilty to the charge of refusing to submit to induction and serve
his sentence; (2) that the respondent was not advised that he could
have applied to be relieved from liability for training and service
under section 4(a) of the Selective Service Act of 1967; and (3) that
the excessive delay in instituting deportation proceedings until
after the completion of criminal action against the respondent
caused severe detriment to him.
The only evidence supporting the respondent's claim that he
was assured immunity from deportation in return for a plea of
guilty in the criminal action is his self-serving declaration (p. 19).
The special inquiry officer stated for the record that he would
reopen the proceeding for corroborating evidence, provided the
respondent could produce such evidence within 30 days (p. 30). To
date no such evidence has been submitted. Furthermore, the
public defender, who it is alleged gave the assurance, has no
authority to enter into any agreement which would bind the
Government.
The respondent was not eligible for relief under section 4(a) of
the Selective Service Act because at the time he refused to submit
Under remarks (section 20) the respondent stated, "I will refuse to comply
with any decision reached by the 'Selective Service Bureau' as T feel conscription
is amoral and toally unjustified."
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to induction, he was not a nonimmigrant. Furthermore, if the
respondent had been in a position to claim exemption from
military service under section 4(a) of the Selective Service Act, he
would now be subject to deportation based on inadmissibility
under section 212(aX22) as an alien ineligible for citizenship.
• We find no excessive delay in commencing deportation proceedings in this case. There is no statutory period within which a
deportation proceeding must be instituted under section 241(a) of
the Immigration and Nationality Act. The respondent testified
that he last entered the United States in January of 1971 (p. 26).
He was admitted as a nonimmigrant visitor to visit his parents.
The order to show cause was served upon him in April of 1971. He
testified that if permitted he wished to enroll at Stanford University (p. 28).
Our review of the record and briefs satisfies us that the hearing
was fair, that deportability on both charges has been established
by clear, convincing and unequivocal evidence, and that the
special inquiry officer properly applied the pertinent legal principles. We affirm the special inquiry officer's finding that the
respondent is not eligible for voluntary departure under the
provisions of section 101(fX7) of the Act. He is precluded from
establishing good moral character for the statutory period as an
alien who has been confined to a penal institution for an aggregate
period of 180 days. An appropriate order will be entered.
ORDER: The appeal is dismissed.
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