PARK

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 certifica-

tiOn 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))—Nonimmigrant-

remained 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 physi-

cally qualified for induction into the United States Army. How-

ever, 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 10 U.S.C. § 504

(1970). In time of peace the Army and the Air Force are precluded

from accepting nonresident aliens as enlistees. 10 U.S.C. §§ 3253,

8253 (1970); see also 10 U.S.C. § 510(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 meaning-

less 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 adjust-

ment 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 inap-

propriate. 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, 434 F.2d 301 (CA. 2, 1970), with Santos v. INS,

375 F2d 262, 265 (CA. 9, 1967), andMeDade v. Morton, 353 F. Supp.

1006, 1012 (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 volun-

tarily 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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