Did You Register For The Selective Service?

This memorandum provides guidance to Immigration and Naturalization Service (INS) field offices regarding the effect of a naturalization applicant's failure to annals for Selective Service on the applicant's eligibility for naturalization. This guidance is based on the attached legal opinion issued by the Office of Full general Counsel on Apr 27, 1998.

INS memo on the Effect of Failure to Register for Selective Service on Naturalization Eligibility

June 18, 1999

Memorandum For Regional Directors
District Directors
Service Center Directors

From: William R. Yates
Deputy Executive Associate Commissioner
Function of Field Operations
Immigration Services Division

Subject: Result of Failure to Register for Selective Service on Eligibility for Naturalization

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Selective Service Registration Requirements

Section 3(a) of the Military Selective Service Act [fifty UsC. App. § 453(a)] provides that:

it shall be the duty of every male citizen of the United states, and every other male person residing in the United States, who, on the solar day or days fixed for the first or any subsequent registration, is between the ages of 18 and 20-six, to present himself for and submit to registration at such fourth dimension or times and place or places, and in such style, as shall be determined by annunciation of the President, and by rules and regulations prescribed hereunder.

This requirement does not apply to aliens present in the United States in a lawful nonimmigrant status.

In 1980, the President directed that, except for aliens in lawful nonimmigrant status, any human being born after 1959 and living in the Usa must annals for Selective Service when he attains his eighteenth birthday. Proc. No. 4771 of July 2, 1980 § 1-101, 94 Stat. 3775 (1980). Every bit provided past statute, this obligation continues in force until the man either registers or attains his twenty-sixth birthday. 50 U.S.C. App. § 456(a).

Although the Military Selective Service Human activity provides for civil penalties for failure to register, Section 12 of the Military Selective Service Act [50 The statesC. § 462] besides provides some relief from the adverse ceremonious effects of failure to register:

(thousand) A person may not be denied a correct, privilege, or benefit under Federal law by reason of failure to present himself for and submit to registration under department 3 if —

(i) the requirement for the person to so register has terminated or become inapplicable to the person; and

(2) the person shows by a preponderance of the bear witness that the failure of the person to annals was not a knowing and willful failure to annals.

Men Required to Register

Except for aliens maintaining lawful nonimmigrant status, any human being born after 1959 and living in the United States must register for Selective Service. Men living in the United States are required to annals at 18. Men who enter the Us as immigrants are too required to register if they are between 18 and 26.

The requirement to annals with Selective Service besides applied to men born before March 29, 1957 who resided in the U.s., other than as lawful nonimmigrants, between their 18^th and 26^th birthdays. Cf. Proc. No. 4360 of March 29, 1975, 40 Fed. Reg. 14,567 (1975).

Men Non Required to Annals

The requirement to register with Selective Service ceases when a man reaches 26 years of age. Men who did not live in the Usa between xviii and 26 years of historic period, and men who lived in the United States betwixt eighteen and 26 years of age, only maintained lawful nonimmigrant status for the unabridged period were not required to register.

Men born after March 29, 1957, and earlier Dec 31, 1959, were never under an obligation to register with Selective Service. Proc. No. 4771 and Proc. No. 4360, supra.

Eligibility for Naturalization

Department 316(a) of the Immigration and Nationality Act (INA) requires a naturalization applicant to testify that he or she is, and has been for the requisite period, a person of skillful moral character, attached to the principles of the Constitution of the U.s., and well disposed toward the good order and happiness of the United States. Section 337(a)(five)(A) of the INA also requires applicants to declare under adjuration his or her willingness to bear artillery on behalf of the Us when required by law.

Therefore, it is INS policy that refusal to or knowing and willful failure to annals for Selective Service during the menses for which an applicant is required to prove his compliance with § 316(a)(three) supports a finding that the applicant is non eligible for naturalization, considering he has failed to establish his willingness to bear artillery when required and his disposition to the good social club and happiness of the United States.

Effect of Failure to Register for Selective Service

Failure to register for Selective Service is not a permanent bar to naturalization. In general, INS will find an applicant ineligible for naturalization on account of failure to register for Selective Service if a male applicant refuses to or knowingly and willfully failed to annals during the period for which the applicant is required to constitute his disposition to the good lodge and happiness of the United States.

This period coincides with the more familiar expert moral grapheme period. Whether it is proper for the INS to determine that an bidder refused to or knowingly and willfully failed to annals for Selective Service will depend on the bidder's age at the time of filing the naturalization application and upwardly until the fourth dimension of administration of the oath of allegiance.

Applicants Under 26 Years of Age

A human being under 26 years of age who refuses to annals for Selective Service cannot demonstrate that he is eligible for naturalization. Every male person naturalization applicant nether 26 years of age must provide evidence of registration for Selective Service. The test of a naturalization application filed past a human being under 26 years of age who has not registered for Selective Service by the time of the naturalization examination must be connected to beget the applicant an opportunity to register.

If the applicant refuses to register for Selective Service after beingness afforded a reasonable opportunity to register, the naturalization application must be denied. The conclusion denying the application must state specifically that the applicant has refused, subsequently given an opportunity to exercise so, to annals with Selective Service, and that the person, therefore, is not eligible for naturalization because he is not well disposed to the good social club and happiness of the U.s.. The decision must cite § 316(a)(3).

Applicants Betwixt 26 and 31 Years of Age

A human being between 26 and 31 years of age[one] who was required to register for Selective Service and who knowingly and willfully failed to register cannot demonstrate that he is eligible for naturalization. Every male naturalization applicant between 26 and 31 years of age who failed to register for Selective Service must provide bear witness that his failure to annals was non knowing and willful or that he was not required to annals.

If a male naturalization applicant between 26 and 31 years of historic period failed to register with Selective Service, the naturalization examination must be connected to give the applicant an opportunity to obtain show that his failure to annals was not knowing and willful or that he was not required to register. If the applicant is unable to demonstrate that his failure to register was non knowing and willful or that he was not required to register, his naturalization application must be denied.

Over again, the decision must state explicitly that the INS has found that his willful failure to register with Selective Service means he cannot show that, during the requisite period before filing his application, he was not well disposed to the good guild and happiness of the United states. The decision must cite § 316(a)(3).

Applicants Over 31 Years of Age

Failure to annals for Selective Service will mostly not prevent a man who was over 31 years of age on the twenty-four hours he filed his naturalization awarding from demonstrating that he is eligible for naturalization. Fifty-fifty if the bidder was required to register and the applicant'south failure to register was knowing and willful, the failure occurred outside of the statutory menses during which the applicant is required to plant his zipper to the proficient guild and happiness of the U.s..

The INS may, of form, consider a person'southward conduct before the beginning of this period. INA § 101(f) (last sentence) and § 316(east). If the INS denies naturalization to a man who is at to the lowest degree 31, based on his failure to register with Selective Service, the decision must state explicitly the basis for finding that the failure to annals warrants denial of naturalization.

As a practical matter, a male bidder over 31 years of age who failed to register with Selective Service should, ordinarily, be found eligible for naturalization unless INS has other bear witness, in addition to the by failure to register, that demonstrates that the applicant is non well disposed to the expert social club and happiness of the United States.

Show of Selective Service Registration

Men may obtain cards to register for Selective Service at their local post function. Men may besides register on-line at the Selective Service Arrangement website at world wide web.sss.gov. The Selective Service System website may also be accessed from the INS website at uscis.gov . After registration, men should receive a Selective Service registration bill of fare in the mail.

Men may obtain status information letters by calling the Selective Service System at 847/688-6888 or 847/688-2576, and requesting a questionnaire. Condition information letters inform men whether, based on their age and immigration status in the U.s.a., they had a Selective Service registration requirement with which they failed to comply.

INS officers may ostend a naturalization applicant's registration status by calling the Selective Service System at 847/688-6888 or 847/688-2576. Officers will need to enter the bidder's Social Security Number and date of nascence to obtain condition information.

Evidence of Registration

Naturalization applicants may present Selective Service registration acknowledgement cards or status information messages every bit proof of registration. INS officers may also accept other persuasive evidence presented by an applicant as proof of registration.

Prove Relating to Failure to Register

INS officers must request that naturalization applicants submit status information letters earlier concluding that men failed to register with Selective Service when required. Condition data messages do non forgive men for declining to annals, nor exercise they provide them with an exemption from the requirement. The letters merely inform men if they had a registration requirement with which they failed to comply.

Once it is established by a status information alphabetic character that a naturalization applicant failed to register when required, the INS officer must determine, based on other evidence, whether or not an applicant'south failure to register was knowing and willful. INS officers must consider all persuasive evidence presented by an applicant relating to his failure to annals. At a minimum, the INS officers must take a statement nether oath from an bidder in order to determine whether or not failure to annals was knowing and willful.

Show that Registration Was Not Required

Naturalization applicants need only demonstrate that they were 26 years of age or older when they first entered the United States as immigrants to prove that they were not required to annals with Selective Service. Proof of an applicant'southward historic period and clearing condition should be contained in the applicant's file. This evidence is all that is necessary to prove that the applicant was not required to register.

Farther Information

Further questions regarding the effect of failure to register for Selective Service on eligibility for naturalization may exist directed to Cheryl Becker, Adjudications Officeholder, Function of Field Operations, Clearing Services Division, at 202/514-2982.

Attachments

Footnote:

[1] The 26 to 31 age range used in this memorandum must be adjusted for applicants filing under sections of the INA requiring different periods of good moral character. For example, the age range for an applicant filing under section 319(a) of the INA is between 26 to 29 years of historic period.

ATTACHMENTS

April 27, 1998

Memorandum For Jack Penca
Eastern Regional Counsel

From: Paul W. Virtue
General Counsel

Discipline: Your February 13, 1998, Asking for Legal Opinion: Failure to register for Selective Service equally a bar to naturalization

I. QUESTION

In the subject memorandum, you asking a legal opinion addressing the following question:

Is failure to register for Selective Service a bar to naturalization?

Ii. SUMMARY Determination

Failure to register for Selective Service bars naturalization only if the applicant knowingly and willfully failed to register during the menstruation for which the bidder must establish good moral character. If the applicant knowingly and willfully failed to register, but this failure to register occurred exterior the good moral character period, the failure to register is not an absolute bar to naturalization. The Service may, however, consider the failure to register in determining the applicant's naturalization eligibility.

Iii. ANALYSIS

An bidder for naturalization must be "a person of good moral character, attached to the principles of the Constitution, and well disposed to the practiced order and happiness of the United States." INA § 316(a)(3), eight U. S.C. § 1427(a)(3).

The period during which the applicant must meet this requirement begins five years before the bidder files the naturalization application, and continues through the date that the applicant is admitted to citizenship. Id (The applicant must show that the applicant "has been and withal is" of good moral character). Moreover, an applicant must be willing "to acquit arms on behalf of the Us when required by the law." Id § 337(a)(5)(A), eight U.s.C. § 1448(a)(v)(A).

Except aliens maintaining lawful nonimmigrant status, any many built-in after 1959 and living in the The states must register for Selective Service when he attains his eighteenth birthday. 50 U.Southward.C. App. § 453(a); Proc. No. 4771 of July 2, 1980, § 1-101, 94 Stat. 3775, 3775 (1980). This obligation continues until the human'due south twenty-6th altogether. Id.

The INA does not make compliance with this requirement a status for naturalization. The Service would be fully justified, nevertheless, in finding that a human being who refuses to comply with this requirement is not willing to conduct artillery when the law requires. INA § 337(a)(5)(A), 8 U.S.C. § 1448(a)(5)(A). This finding would back up the further inference that the applicant is non disposed to the good order and happiness of the United states of america. Id.

§ 316(a)(iii), 8 The statesC. § 1427(a)(3). Any naturalization application should be denied on this ground, if the bidder is a man who has not yet turned twenty-six, and who refuses to register for Selective Service.

The posture of the case changes once the applicant has turned twenty-six. In that case, in that location was, but no longer is, a duty to register. 50 United statesC. § App. 453(a). The Service tin can all the same discover that the applicant is ineligible to naturalization, based on the failure to have registered, unless the bidder establishes that his failure to file was not knowing and willful. 50 U.South.C. App. § 462(g).

Note that this statute clearly places the burden of proof on the applicant. Id. Therefore, the Service may presume the failure to register to have been knowing and willful, unless the applicant proves the reverse "past a preponderance of the evidence." Id.

The posture of the instance changes, over again, the twenty-four hour period afterward the bidder's 30-first birthday. If the applicant files on that appointment, or later, and then more than five years will have elapsed since the failure to register. That is, the effect that reflects adversely on the applicant's eligibility will have occurred outside the catamenia during which the applicant must show that he is of skilful moral character and disposed to the expert order and happiness of the United States. INA § 316(a)(3), 8 UsC. § 1427(a)(3).

The Service should first consider whether the failure to register was knowing and willful. fifty U.S.C. § 462(m). If not then the Service should detect the applicant to have satisfied § 316(a)(3), unless other adverse factors are present. Even if the applicant did knowingly and willfully fail to annals, that fact would non be an absolute bar to eligibility. INA § 316(a)(3), 8 UsaC. § 1427(a)(3). The Service could grant naturalization, so long equally the Service were satisfied that the applicant satisfies § 316(a)(3) now, even if he may not have been able to practice then in the past.

Only the Service demand not automatically disregard the failure to register, in one case the applicant is at least 30-one years former. The Service is entitled to consider improper carry that occurred outside the statutory period, in determining whether the applicant can satisfy § 316(a)(iii). Id. §§ 101 (f) (last sentence) and 316(e), 8 U.South.C. §§ 1101(f) and 1427(e); 8 C.F.R. § 316.10(a)(2).

For this reason, the Service could properly consider a willful failure to register for Selective Service, together with other evidence concerning the applicant southward compliance with § 316(a)(3), fifty-fifty if the willful failure to register is outside the good moral character period. For the sake of further review, it would be necessary for the Service to explain in its decision why an event outside the statutory period is taken to prove the applicant to exist ineligible under § 316(a)(3).

It would non be right simply to say that a knowing and willful failure to register is a permanent bar to naturalization. There is besides an important factor to keep in heed, when the failure to register is outside the good moral graphic symbol period. An applicant may seek judicial review of a final conclusion denying naturalization. Id. § 310(c), viii U.s.a.C. § 1421(c). In reviewing the instance, the district court would have legal authority to decide the issue de novo, making its own judgment on the effect of the failure to annals on the applicant's eligibility. Id.

We are aware of the argument that, drawing an analogy from INA §§ 314 and 315, 8 United states of americaC. §§ 1425 and 1426, an alien who knowingly and willfully fails to register should be permanently barred from naturalization. Letter from Russell A. Ezolt to Toni B. Florence (December 16, 1997).

We agree with Mr. Ezolt that this illustration cannot be sustained. Congress has specifically enacted that convicted deserters, those bedevilled of parting to avoid the typhoon, and those who obtain an alienage exemption from induction or further service, are permanently barred from naturalization. INA §§ 314 and 315, 8 U.S.C. §§ 1425 and 1426.

But Congress has not enacted a like provision for those who fail to register for the typhoon. We practice not consider it proper to extend these bars to naturalization to persons Congress did no, chose to include inside the scope of the confined. It is just nether § 316(a)(3), if at all, that failure to register for Selective Service can warrant denial of naturalization in any given example.

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Carl Shusterman served every bit an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Police force who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the Feb 2018 edition of SuperLawyers Magazine.