RIVA
EXCLUDABLE: Act of 1952—Section 212(a) (20) [
Act of 1952—Section 212(a) (22) [
Applicant appeals from the special inquiry officer‘s order finding him inadmissible under section 212(a) (22) of the Act. His admission to February 15, 1969 was authorized by the special inquiry officer who waived the ground of inadmissibility under section 212(d) (3) of the Act. The issue is whether the applicant has established that his departure from the United States on August 7, 1966 was not to avoid military service. We hold he has failed to carry his burden. We shall dismiss the appeal.
The applicant, a 27-year-old married male, a native and national of Peru, has made several entries. This is his testimony: He was first admitted in August 1965. He came to marry and to take his wife to Peru, where he was employed in his father‘s business. He sought employment because his wife, a United*
Applicant returned to the United States on August 30, 1966. He was admitted as a visitor on presentation of the tourist visa on which he had entered in 1965. It was still valid. He continued living with his wife at his old address and went back to school. He had no intention of avoiding the jurisdiction of the draft board. Admitted for three months, he was denied any extension of stay beyond February 1967.
Applicant‘s testimony continues: In January 1967, he returned to Peru, obtained a visa as the representative of a foreign information media, and gained admittance to the United States in this status on February 11, 1967.2 He wrote articles for a Peruvian
The record reveals that on his arrival in Miami, the applicant was detained because he did not appear to be clearly admissible, and he was given a hearing in exclusion proceedings. In the exclusion proceeding, he sought admission only as a student until he could graduate in January 1969. He told of his desire to someday be a permanent resident, of his awareness that he had to depart to obtain a visa to become one, and of his resolve not to violate his student status while in the United States. The special inquiry officer entered the order from which this appeal is taken.
Counsel contends that applicant is not excludable as a draft evader because he left the United States not to escape service, but to obtain a draft-exempt status. Counsel points to students and divines who, although draft deferred or exempt, are not considered as evading the draft. The contention avoids the issue. We are concerned not with the manner in which the applicant returned to the United States, but with the circumstances under which he left. We look to the primary purpose for the departure, Matter of Nunez-Toro, 11 I. & N. Dec. 501 (BIA, 1966). Applicant had been ordered to report for induction—he left the country to avoid the order: avoidance of induction was the primary purpose of his departure. That he planned to come back draft-free is quite beside the point. His status became fixed at the moment of his departure for purposes of section 212(a) (22), Martinez v. Pilliod, No. 59 C 2053 (N.D. Ill., April 21, 1961), history in Petition for Naturalization of Martinez, 202 F. Supp. 153, 155 (N.D. Ill., 1962). See Alarcon-Baylon v. Brownell, 250 F.2d 45 (5 Cir., 1957). The situation is not without analogy to that which exists when certain aliens became ineligible for citizenship because they sought relief from liability to military service—their status became fixed when they chose to free themselves from liability to service, Ceballos v. Shaughnessy, 352 U.S. 599 (1957).
Counsel believes that it is wrong to exclude the applicant as a draft evader because he did no more than others have done with the approval of both the Immigration Service and the Selective Service Board. These agencies permit certain doctors who were admitted to the United States as immigrants to depart and apply at an American consulate for an exchange visitor‘s visa—a status in which they would no longer be subject to the draft. These doctors were admitted as immigrants for training. They entered the United States solely with the intention of residing here temporarily. When they were admitted they were too old for service. They became subject to the draft when the age limit was raised. Without attempting to pass on the status of the doctors who took advantage of the procedure outlined by counsel, we point out that a departure with the approval of the Selective Service Board is not a departure in the face of the order of the Board to report for induction. It is the latter situation that is before us.
Counsel contends that section 212(a) (22) of the Act was intended to reach the person who departed from the United States to escape service and who removed himself from the jurisdiction of the United States. He points out that the applicant has not removed himself from the jurisdiction of the United States, for although he departed from the United States, he did so to reenter in an exempt status and place himself within the jurisdiction of the United States. He bases his contention on his reading of the legislative history of section 212(a) (22) of the Act and of section 349(a) (10) of the Act (
Counsel‘s contention must be rejected. Counsel would have the section provide that a person who departed to evade service was to be readmitted if he applied for admission while the emergency
Counsel‘s interpretation could make it possible for individuals to evade service by departing, remaining out until they became ineligible for service because of their age or other reason, and then returning without hindrance while the emergency that required them to serve still existed. We find nothing in the legislative history or example cited by counsel that would justify the conclusion that Congress intended to approve of such conduct.
The special inquiry officer authorized the applicant‘s admission to the United States temporarily so that he could obtain his degree and conclude his affairs. This was proper.
ORDER: The appeal is dismissed.