Interim Decision #1974 

MATTER of RIVA* 

In Exclusion Proceedings 

A-11239287 

Decided by Board May 16, 1969 

Since a determination of inadmissibility under section 212(a) (22), Immigration and Nationality Act, is governed by the circumstances under which 

an alien departed from the United States, a lawful permanent resident 

alien who, after having been ordered to report for induction in the armed 

forces, departed this country for the purpose of returning as a draft-free 

nonimmigrant, nevertheless departed to avoid the draft and was, upon his 

return, inadmissible under section 212 (a) (22) of the Act. 

EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182 (a) (20)]-

Immigrant—not in possession of a valid immigrant visa. 

Act of 1952—Section 212(a) (22) [8 U.S.C. 1182(a) (22)]—

Departed to avoid military service. 

ON BEHALF OF APPLICANT:• ON BEHALF OF SERVICE; 

Elmer Fried, Esquire Irving A. Appleman 

515 Madison Avenue Appellate Trial Attorney 

New York, New York 10005 

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 

The alien lu this case is also the subject of Interim Decision Nn. 1842 

(12 I. & N. Dec. 646). 

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States citizen, desired to delay the move for "a couple of years" 

(p. 14). Finding he could not work unless he was a permanent 

resident, he became one in November 1965 although he had no intention of remaining permanently (pp. 14-16, 19). He worked 

and he also went to school. He registered for the draft in December 1965. Classified I–A in February 1966, he tried, without success, to have his immigration status changed to that of a draftexempt nonimmigrant on the ground that he intended remaining 

in the United States not more than two years because he was 

committed to return to his father's business. Notified to report 

for induction on August 19, 1966, he again told the draft board 

that he had no intention of remaining and that he desired to be 

relieved from liability to service by changing his immigration status or taking any other steps that might be available. He found 

he could not be relieved. He determined he would go abroad, relinquish his status as a permanent resident, and return in a nonimmigrant status which would place him in a position to gain 

draft exemption (pp. 15-19, 36; Exc. 2, 3). 1On August 7, 

1966, he left for Peru. After consulting with the American vice 

consul (pp. 19-20), he sent the Service his alien registration card 

with the information that he was relinquishing his immigration 

status, that he had never intended becoming a citizen, -and that he 

had intended residing only temporarily in the United States (pp. 

19-20; Ex. 4). He departed not to evade service, but to give up 

his status as a permanent resident—an act he could not do while 

in the United States—and return as a nonimmigrant so that he 

could apply for draft exemption (pp. 33-34). 

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. 2He wrote articles for a Peruvian 

i A nonimmigrant whose periods of stay in the United States totaled more 

than a year was liable for service, 32 CPR 1622.42(a). However, nonimmigrants could file an application for relief from service, 32 CPR 1622.42(b). 

2Such a nonimmigrant was not required to register for the draft while 

maintaining status, 32 CPR 1611.2(b) (10). 

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Interim Decision # 1974 

paper and he also attended school. When the paper failed to pay 

him for his articles, he stopped writing for it. He• did not apply 

for an extension of stay. He was placed under deportation proceedings and given voluntary departure. In the meantime, he had 

applied for an immigrant visa, for he had decided to live in the 

United States permanently. Although he supplied the facts concerning his draft problem to the consul in Peru (Ex. 5), he received notice from him, on April 20, 1968, that his papers were in 

order and that he was to appear for interview on May 2, 1968. 

He arrived in Peru about April 26. Before his arrival, the Service 

informed the consul that they considered him inadmissible as one 

who had departed to avoid military service. When he appeared 

before the consul, he was told the problem raised by the Service 

had to be investigated, that the Selective Service file had been 

sent for, and that it would take about six weeks to get it. He told 

the consul that he had to return to the United States to take his 

school's final exams in two weeks. The consul gave him a student 

visa and told him to attempt to reenter with it (p. 28). 

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 

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Interim Decision #1974 

(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, Ceballas v. Shaugh,neetry, 852 U.S. 599 (1967). 

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 (8 U.S.C. 1481 (a) (10) ). The latter section 

provides for the expartiation of one who departed from the jurisdiction of the United States to escape service. The Service representative contends that if the applicant is not found excludable 

under section 212(a) (22), he will have accomplished exactly what 

Congress hoped to prevent—an alien escaping his draft obligations by departing from the United States, but returning to the 

United States for permanent residence after he is no longer liable 

for service. 

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 

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that originally called for his service was still in existence, and if 

he departed with the intention of returning as soon as he had accomplished his evasion of service. This is not the law that Congress passed. The language is clear. It shows no concern with obtaining jurisdiction over an alien who departed: its concern is to 

prevent the return of the departed alien. We note the law does 

permit the return of nonimmigrant aliens who were nonimmigrants when they left to evade service, but all other aliens who 

departed to evade service are barred from entry. Moreover, we 

have already pointed out that the alien's status became fixed at 

the time of the departure. 

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 theconclusion 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. 

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