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United States v. Ryba

decided: April 23, 1971.


Hastie, Chief Judge, and Freedman*fn* and Gibbons, Circuit Judges.

Author: Hastie


HASTIE, Chief Judge.

The appellant, an alien and a selective service registrant, has been convicted of willful failure to report for induction into military service. His principal contention on this appeal is that he was improperly denied the right, given by statute to aliens other than those admitted for permanent residence, to elect whether he shall submit to or be relieved of the obligation of service in the armed forces.*fn1

Before 1951 this right was enjoyed by permanent resident aliens as well. Selective Service Act of 1948, ch. 625, § 4(a), 62 Stat. 605. But since that time a "male alien admitted for permanent residence," no different from a male citizen, has been fully liable for training and service in the armed forces. 50 U.S.C. App. § 454. The government contends that the appellant is an "alien admitted for permanent residence."

At the age of 14 the appellant, with his mother and sister, emigrated from his native Poland and entered the United States through regular immigration procedures. They joined his father, who had entered the country a year earlier, and took up residence as a family in Newark, New Jersey. There the appellant attended elementary school and high school. At the age of 18 he registered for selective service. As a then high school student he was classified 1-SH. After his graduation from high school and an unsuccessful effort to obtain a hardship deferment, he was classified 1-A, found physically qualified for induction and ordered to report for induction. He did not report. Subsequently he was arrested and charged with willful failure to report for induction.

After he had been indicted, the registrant for the first time informed his board that he sought relief as an alien entitled to elect whether he would be liable for military service.*fn2 The board declined to reopen his case, thus refusing to recognize him as such an alien as the law permits to avoid military training and service.

The present record indicates, without any evidence or basis for implication to the contrary, that the 14-year-old appellant was admitted to this country with his mother as an immigrant privileged to remain permanently. In an effort to avoid this conclusion it is argued that as an infant he had made no effective choice of status. But that is beside the point. The law determines and specifies immigrant status objectively upon the basis of the circumstances and conditions of entry. Cf. United States v. Rumsa, 7th Cir. 1954, 212 F.2d 927, cert. denied, 348 U.S. 838, 75 S. Ct. 36, 99 L. Ed. 661. Thus it is provided by statute that "the term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 8 U.S.C. § 1101(a) (20).*fn3

The registrant's selective service board had adequate basis for subjecting him to induction as an alien admitted for permanent residence, if only because at the time of registration he signed and filed with the board a questionnaire which specified that he was an alien admitted for permanent residence. And though it is contended that the clerk of the board assisted and guided him in filling out the questionnaire, nothing appears even now to indicate that the statement of his status at that time was incorrect.

Neither is there any evidence of a change of status. There is a prescribed statutory procedure by which certain aliens lawfully admitted for permanent residence can have their status "adjusted" by the Attorney General. 8 U.S.C. § 1257. But the registrant's situation is not covered by that statute. Moreover, assuming that his status could be changed by some action of an agency charged with the administration of the immigration laws, no request for such alteration of status has been made. Rather, after having been indicted for failure to report for induction, the registrant sought relief from his selective service board as if that agency had power to change his immigrant status. In these circumstances the board properly refused to grant relief.

No other issue of substance is presented by this appeal.

The judgment will be affirmed.


The judgment will be ...

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