From ON WATCH published by the Military Law Task Force, a component of the National Lawyers Guild: http://www.nlg.org/mltf/

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Immigration consequences of resisting military servied
Immigrants and Selective Service registration

IMMIGRANTION CONSEQUENCES OF RESISTING MILITARY SERVICE

This memo is for military service members who are concerned about the prospect of being sent to war.

Q. I am a permanent resident currently enlisted in the Armed Forces (or Reserves). Can I be deported if I fail to appear at an appointed place and time of duty?

A. Maybe. This depends on a number of factors: when you were granted legal permanent residence status; whether you are convicted of (not just charged with) an absence offense; and the type of offense for which you are convicted. If you are convicted of a military crime that involves an intent to avoid required duty and the offense has a potential (maximum) punishment of a year or more, you run the risk of being deported. Under immigration law, this would be considered a "crime of moral turpitude." Your conviction must be for an offense that you committed within five years of your last admission to the US. If you have been convicted of more than one crime of moral turpitude, you may be deported, regardless of the potential maximum punishment or how long you were in the US before your conviction.

Q. What military offenses are considered "crimes of moral turpitude?"

Not all military crimes make you deportable, only those that are "crimes of moral turpitude." Absence without leave (AWOL) or Unauthorized Absence (UA) should not be considered a crime of moral turpitude, but an immigration court may find that such crimes as desertion and missing movement are.

Q. Will failing to appear at a designated time and place affect my ability to become a citizen?

A. Maybe. Again, it depends on whether you are convicted and of what kind of crime you are convicted. Any conviction may make it difficult for you to prove that you have the "good moral character" necessary to become a citizen. Remember, this requirement only applies to the five
years prior to your application for citizenship. If a military court convicts you of "desertion during time of war" or " desertion to avoid hazardous duty or shirk important service," however, you will be permanently barred from becoming a citizen. As a result, you will also become inadmissible."

Q. What does being "inadmissible" mean?

A. Being "inadmissible" means that if you leave the US you cannot enter this country again legally, unless you get special permission (a " waiver"). You cannot get a waiver, however, if you are ineligible to become a citizen. Once you are inadmissible, if you do somehow get back
into the US without permission, you can then be deported.

Q. How else can my resistance to participating in the military make me inadmissible?

A. Other forms of military resistance may make you inadmissible. You will be inadmissible if:

* You left the country to avoid serving in the military during time of war. This applies only if the main reason you left was to avoid serving;
* You are convicted of one military crime considered a crime of moral turpitude;
* You admit to a crime considered a "crime of moral turpitude," even if you are not convicted; or
* You are convicted of two or more crimes of any kind and you are sentenced to five years or more.

You may be able to get "waivers" for these grounds of inadmissibility, except for the being inadmissible for leaving the country to avoid service.

Please Note:

Harold Jordan asked the following question concerning these two memos. Dan Kesselbrenner of the NLG National Immigration Project response follows Harold's comment. Dan is currently updating these two memos.

[Concerning] the last paragraph of the "Immigration Consequences of Resisting Military Service."

It reads as follows:

Q. What effect will filing for conscientious objector status or requesting another discharge have on my immigration status?

A. None, as long as you are not charged with any court-martial offense. The only possible immigration consequence of filing for conscientious objector status is that you may not be able to get "quick" citizenship. Quick citizenship, Æ which is not the same as automatic citizenship, Æ
is a special provision of the immigration law that applies to those who have served in the military during specific times of war designated by the President. Even then, you should be eligible as long as you performed any military service and did not refuse to wear the uniform.

Comment: This notion of "quick citizenship" isn't explained very well. My understanding & is that "quick citizenship" simply means that a person can apply for full citizenship with a shorter (2- year ?) waiting period instead of the usual 5(?). I seem to remember that Bush proposed changing this to make it more beneficial to certain people who had fought in the military post-Sept. 11, but I don't remember the specifics or whether changes were made at all.

Dan commented:

The [questions and answers articles] were written before the war in Iraq. In July 2002, President Bush signed an executive order making people who fought in the "war on terrorism" eligible for naturalization through active-duty service during periods of military hostilities. See 8 USC 1440. That same law specifies that no one "who was a conscientious objector who performed no military, air or naval duty whatever or refused to wear the uniform, shall be regarded as having served honorably or having been separated under honorable conditions for the purposes of this section." Given that language, I would think that someone who is a conscientious objector would not qualify without striking down part of the statute.

Q. What effect will filing for conscientious objector status or requesting another discharge have on my immigration status?

A. None, as long as you are not charged with any court-martial offense. The only possible immigration consequence of filing for conscientious objector status is that you may not be able to get "quick" citizenship. Quick citizenship, which is not the same as automatic citizenship, is
a special provision of the immigration law that applies to those who have served in the military during specific times of war designated by the President. Even then, you should be eligible as long as you performed any military service and did not refuse to wear the uniform.

IMPORTANT NOTE
All of these consequences are only possibilities, not certainties. The best insurance against them happening is to talk to a lawyer or counselor about your situation. If you think you may face court-martial charges or experience other immigration problems because of your resistance to serving in the military, you should tell your legal advocate that you are a recent immigrant and that you fear your status may be in jeopardy.

For more information and advice, contact the
National Immigration Project of the National Lawyers Guild
14 Beacon St., Suite 602 Boston, MA 02108
617-227-9727
nip@nlg.org
http://www.nlg.org/mltf/

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IMMIGRANTS AND SELECTIVE SERVICE REGISTRATION

Q. I received a letter from the government that says I have to register for Selective Service. Does this mean I am being drafted?

A. No. Registering for Selective Service does not mean that the United States government is drafting you for military service. Only volunteers now serve in the United States military. The United States is not drafting anyone at this time. However, the US Congress has the power to
restart the draft at any time. The US government requires registration to make it easier for it to organize a draft if the government decides a draft is necessary.

Q. How did the Selective Service get my name?

A. The Selective Service uses records from different public agencies, like the Department of Motor Vehicles (drivers license). It also buys lists of names from companies that sell products to young people. The Selective Service sends mass mailings to large groups of people. The
United States did not target you personally.

Q. Do I have to register for Selective Service?

A. The law says that all men living in the United States who are ages 18 through 25 must register, except those who are in valid non-immigrant status (e.g., students, visitors, and people who have been permitted to come to the US for limited periods of time, etc.). The Selective Service interprets this to mean that undocumented men must register. (Check with an immigration attorney if you are uncertain about your status.)

Q. I dont have a Social Security number, but the Selective Service form asks for one. What should I do?

A. It is best not to put down any number if you do not have a valid Social Security number. Using a false Social Security number is a crime (felony) and can carry serious penalties. At this time, the Selective Service is not investigating people who do not give a Social Security number.

Q. I am undocumented. If I register, will the Selective Service turn me over to the INS?

A. The Selective Service cannot tell from the registration form that you are undocumented. They will only know if you tell them. Do not tell the Selective Service that you are undocumented. They have said that if they learn someone is undocumented, they will turn that person over to the INS.

Q. What will happen if I don't register?

A. If you have received a letter from the Selective Service that tells you to register, and you do not report, you will probably get three or four more letters warning you that if you do not register, the
government could begin criminal charges against you. If you do not register after receiving those warning letters, then the Selective Service may turn your name over to the Department of Justice for possible prosecution. Failing to register is a federal crime, with a penalty of up to five
years in prison or a $250,000 fine or both. Since the mid-1980s the US government has not prosecuted anyone for failing to register for the draft. The 20 young men who were prosecuted in the early 1980s were anti-draft activists. Nevertheless, this policy could change and the
government could bring criminal charges against other people.

Q. If I have not registered and I am prosecuted, what can I do?

A. If you are under 26 and the US brings charges against you, the government would probably drop the charges if you agree to register. This policy also could change, however.

Q. What if I am over 26 and I am prosecuted?

A. Once you turn 26, you are too old to register, so you will not be able to get the US to drop the charges by simply agreeing to register. If the government were to prosecute you, you could still avoid conviction if you can show that your failure to register was not " knowing and willful." Once you turn 31 years old, the United States can no longer prosecute you.

Q. I am over 26 and I did not register. How can I show that my failure to register was not knowing and willful?

A. Many immigrants are not aware of their obligation to register or do not become aware of this obligation until after they turn 26. The Selective Service has gotten tougher on noncitizens that fail to register. The Selective Service is now more likely to assume that a person that failed to register did so "knowingly and willfully. If you want to show that you did not know you had to register for Selective Service, you may have only your word. If, for example, the Selective
Service never sent you a notice or you can show that you were not living at the address where the government sent the notices then your word might be enough. You may also have other good explanations for why your failure to register was not done on purpose.

Q. Are there risks to my immigration status if I do not register?

A. Yes, if you are tried and convicted for not registering. A conviction for failure to register makes you deportable. This means that if you are not a US citizen you risk being forced to leave the US
even if you currently have some legal status in the country.

A conviction for failure to register may also make you inadmissible from the United States. This means that if you are a legal permanent resident now, you could have problems when you try to reenter the United States. If you are not a legal permanent resident, you could lose the
possibility of obtaining this status in the future, or even the possibility of entering as a non-immigrant (e.g., as a student, visitor, etc.).

A conviction for failure to register may also make you ineligible for citizenship for at least five years.

Q. If I did not register, but I am not convicted, can I still face immigration consequences?

A. You will probably be ineligible to become a United States citizen if you fail to register and cannot show that you were unaware of the registration requirement.

To qualify for US citizenship you need to show you are a person of "good moral character" for the five years before your applying for citizenship. The INS considers a person to lack "good moral character" if he failed to register for Selective Service when he was aware of his
obligation to do so. It appears that the INS will only automatically deny you citizenship until you turn 31.

Nevertheless, certain INS examiners or entire INS offices may treat a persons failure to register as a lack of "good moral character" even after the five-year period. However, if the INS denies your citizenship application because you failed to register, you can challenge the denial
by showing that your failure to register was not "knowing and willful." The INS may also use your failure to register to deny an application for legal permanent residence ("green card").

Q. Are there any other risks of not registering?

A. Yes. To obtain certain federal benefits, you must prove you have registered with the Selective Service. These include federal student loans and grants, job training programs, and certain federal jobs. If you are under 26, you can register at any time and can obtain these benefits. If you did not register and you are over 26, you can still obtain these benefits if you can show that your failure to register was not knowing and willful.

Q. If the United States begins a draft, what would happen to me?

A. If the US has a draft and you are registered, you could get a notice to report for induction. The US would issue notices to men who turn 20 the year that the draft begins. If the US wants more people to serve, it will issue notices to individuals who turn 21 that year, and so on until the military calls up men through the age of 25, then would draft 19 year olds and men who are 18 and a half. Anyone who is registered can receive such a notice regardless of his immigration status.

Q. I am undocumented. If the United States begins a draft, and I get a notice, can I be forced to serve in the military?

A. Probably not. Since World War II, the US militarys policy has been not to take in undocumented people. The armed forces require that a person be at least a legal permanent resident (i.e., have a "green card") to enlist for service. Even if the United States would not permit you to join the military because of your immigration status, if you receive an induction notice, you must report. It is only after you report that your immigration status is checked.

Q. I am undocumented. If I report for induction will I be turned over to the INS?

A. We do not know. There does not appear to be a policy on this.

Q. If I do not want to serve in the military, can I request an exemption or conscientious objector status now?

A. The government will not allow you (or anyone) to apply for a " deferment" (delaying entry into the military) or an "exemption" (excusing a person from military service) at the point of registration with Selective Service. However, if the US begins a military draft and you receive an induction notice, you may be able to request an exemption, deferment, or conscientious objector (CO) status (a conscientious objector is someone morally opposed to fighting in war). A
person may apply to get out of the draft for other reasons: medical problems, family problems, and others.

You must request an exemption before you report for your induction physical, which could be as little as ten days after the date on the induction notice. If you do not request the exemption at that time, you may lose the right to do so later. Certain exemptions may prevent you from getting a green card or from becoming a citizen. Consult an immigration attorney about this first.

For More Assistance about immigration matters, please contact:
National Immigration Project National Lawyers Guild
14 Beacon Street, Suite 602 Boston, MA 02108
617-227-9727
www.nationalimmigrationproject.org
dan@nationalimmigrationproject.org

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