Interim Decision #2298
M.A.1 lk..ft OF PARK
In Deportation Proceedings
A-20516396
Decided by Board June 27, 1974
An alien who is an intending member of the Armed Forces of the United States,
who has been found mentally and physically qualified for induction into the
army, but who is not at present a member of any branch of the military
service of this country, is ineligible for the exemption from the labor certificatiOn requirement provided by 8 OFR 212.8(b)(1) for members of the 'United
States Armed Forces.
CHAIM:
Order: Act of 1952—Section 241(a)(2) [8 1251(aX2))—Nonimmigrantremained longer.
ON BBnatz or RESPONDMI■Vrt Bert D. Greenberg, Esquire
5670 Wilshire Blvd., Suite 1800
Los Angeles, California 90036
The alien respondent has appealed the November 19, 1973
decision of an immigration judge in which the respondent was
found deportable, was found statutorily ineligible for adjustment
of status under section 245 of the Immigration and Nationality
Act, and was granted the privilege of voluntary departure. The
appeal will be dismissed.
The respondent, a native and citizen of Korea, has conceded
deportability as a nonimmigrant who has remained beyond the
authorized length of his stay. The only issues on appeal involve
the application for section 245 relief which the respondent renewed
at the hearing below.
The respondent seeks adjustment of status as a nonpreference
immigrant. The record indicates that he initially submitted his
application (Form I-485) to the Service in February of 1973. The
Service rejected the application primarily because the respondent
had not established that he was in compliance with the labor
certification requirements of the Act. The respondent, however,
maintains that he is exempt from the provisions of section
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Interim Decision #2298
212(aX14) of the Act by virtue of 8 CFR 212.8(bX1). That regulation
states:
The following persons are not considered to be within the purview of section
212(a)(14) of the Act and do not require a labor certification: (1) A member of
the Armed Forces of the United States ....
The respondent contends that as a person intending to join the
Armed Forces he comes within the terms of this regulation. It
appears that the respondent has been found mentally and physically qualified for induction into the United States Army. However, he is not at present a member of any branch of the Armed
Forces of the United States. The language of the regulation is
clear. Since he is only an intending member of the military, the
exemption from labor certification contained in 8 CFR 212.8(b)(1)
does not apply to the respondent.
The respondent nevertheless raises several arguments in favor
of the interpretation he suggests. It seems that the various
branches of the Armed Services will not enlist an alien unless that
alien has been lawfully admitted for permanent residence. The
respondent accordingly argues that the regulation is meaningless
unless it is construed to apply to intending members of the
Armed Forces.
There is no general statutory prohibition which prevents an
alien who is not a lawful permanent resident from being enlisted
in the Armed Forces of the United States. See
(b) (1970). However, other than
in times of peace, the determination by a given branch of the
Armed Services not to accept nonresident aliens appears to be one
of internal policy. Although the regulation may appear to be of
little or no real consequence at present, it is clearly not meaningless because circumstances and military policy may change,
thereby rendering it of considerable significance.
The respondent also raises what appears to be a due process
challenge to the denial of his application for section 245 relief.
Prior to its rejection of the respondent's application for adjustment of status, the district office involved in this case had
.evidently treated similarly situated aliens as qualifying for the
labor certification exemption contained in 8 CFR 212.8(b)(1).
Whether or not this was a Service-wide policy is not clear;
however, our reading of the regulation makes it plain that such
treatment of intending members of the Armed Forces was inappropriate. As long as the Service is consistent in its future
interpretation of this regulation, the respondent will not have
been denied due process of law. The conclusion that the respond-
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Interim Decision #2298
ent is statutorily ineligible for adjustment of status does not
represent an arbitrary and capricious handling of this matter;
instead, it represents a reasoned change in the interpretation of a
regulation. The respondent has been treated fairly. Compare Fan
Wan Keung v. INS,
(D.D.C. 1973).
The respondent has not shown that he is admissible to the
United States for permanent residence or that an immigrant visa
is immediately available to him. Accordingly, he is statutorily
ineligible for section 245 relief. The decision of the immigration
judge was correct.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension
beyond that time as may be granted by the District Director; and
in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.
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