Immigration Consequences of Resisting Service
Questions About the Immigration Consequences of Resisting Service
What effect will filing for conscientious objector status or requesting another discharge have on my immigration status?
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.
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?
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.
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.
Will failing to appear at a designated time and place affect my ability to become a citizen?
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."
What does being "inadmissible" mean?
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.
How else can my resistance to participating in the military make me inadmissible?
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.
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
National Immigration Project of the National Lawyers Guild
14 Beacon St., Suite 602
Boston, MA 02108
phone: (617) 227-9727
Email: nip@nlg.org
web: www.nlg.org/nip/
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