On Friday, the State Department released one of the remaining missing sections of the Report of the Visa Office for Fiscal Year 2014: Table X, “Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for Refusal Under the Immigration and Nationality Act)”. For our purposes, this is interesting because of its statistics on two particular grounds of ineligibility which apply to emigrants: 8 USC § 1182(a)(8)(B) (“Draft evaders”) and § 1182(a)(10)(E) (“Former citizens who renounced citizenship to avoid taxation”).

The latter ground, the infamous Reed Amendment, is not known ever to have been enforced officially, though oddly enough this year’s Table X does not give us the number of determinations of ineligibility for a non-immigrant visa under the Reed Amendment: unlike in past years, the table entry is blank. It is not listed as a dash, which is used in the report to indicate that a particular ground of ineligibility doesn’t apply to non-immigrants; there’s simply no symbol in that row & column of the table at all. (The last time the report failed to include the Reed Amendment, in 2003, there was simply no row in the table at all; this time, however, the row is present, it’s just that the non-immigrant column is blank.) I have no idea what this might mean.

One thing Table X does show is the continued decline in enforcement of the former ground: only about half a dozen to a dozen people per year are being found ineligible for visas on draft-related grounds, and in recent years nearly all of them have been able to overcome their ineligibility upon review. However, despite Jimmy Carter’s pardon back in the 1970s, the number of people unable to overcome their ineligibility is not zero.

The ban on re-entry for people who left the U.S. as draft evaders or deserters is rooted in a much older Civil War-era law which stripped such people of their citizenship and made them ineligible for naturalisation. At the time, the U.S. had very few immigration controls, but by the 1920s, new immigration laws began placing barriers in the way of entry of all aliens ineligible to citizenship, presumably including draft evaders & deserters. These banishment provisions were made explicit in the Immigration and Nationality Act of 1952, and even survived the Supreme Court cases Trop v. Dulles in 1958 and Kennedy v. Mendoza-Martinez in 1963, which declared the nationality-stripping provisions for desertion and draft evasion respectively unconstitutional.

Table of contents

1. Statistics
2. The historic link: citizenship-stripping & visa denial
3. Vietnam War emigrants
4. Carter’s pardon
5. Recent State Department guidance
6. A “two-step transaction” for avoiding the Constitution
7. Conclusion

Statistics

Not all of these people are ex-citizens. The Selective Service Act of 1948 required registration by “every male citizen of the United States, and every other male person residing in the United States”, including green card holders and non-immigrant workers. Non-citizens could apply for draft exemption, but this would make them ineligible for naturalisation (though not for visas). On the other hand, those who did not get a formal exemption, but simply left the U.S. after receiving a draft notice, could also be found ineligible for a visa. The statute provides an exemption from ineligibility for “an alien who at the time of such departure was a nonimmigrant and who is seeking to reenter the United States as a nonimmigrant”; thus, all the people in the non-immigrant column above are ex-citizens or ex-green card holders.

Also, these statistics only include people who applied for visas at U.S. consulates overseas; they do not include people who were refused admission at the border, nor people who were denied adjustment of status to obtain a green card. Both of those categories of people are handled by the Department of Homeland Security and not the Department of State; however, DHS’ public statistics (the “Enforcement Actions” section of the Yearbook of Immigration Statistics) only broke down removals into broad categories up until 2005, and after that did not provide any categorical breakdown of removals by reason at all, only the total number and by-nationality or by-region breakdowns.

Though it’s been decades since the first laws which banned the entry of non-citizens (including ex-citizens) who previously left the U.S. to avoid the draft, the State Department has only posted the Report of the Visa Office online for year 2000 and later. This is unfortunately much later than the peak period in which these laws were probably applied (i.e. the 1970s), but even then we can see some interesting trends at work. From 2000 until 2003, consular officers determined that 47 people — an average of nearly 12 per year — were ineligible for non-immigrant visas under § 1182(a)(8)(B); fewer than a third were able to overcome this ineligibility. In contrast, from 2004 to 2014, only another 73 people — fewer than 7 per year — were found ineligible, and more than nine-tenths were able to overcome that ineligibility upon review.

The numbers are small (and there may be slight time mismatches between the determinations of ineligibilities and when they were overcome — as the reports point out, an ineligibility might be determined in one year but not overcome until the next, in which case it would show up in two different years’ statistics), but the consistently-high rate of ineligibilities overcome since 2004 suggests a change in the consular enforcement standards rather than a random shift in the pool of visa applicants. However, no one has been able to overcome a determination of ineligibility for a green card during that same period.

The historical link: citizenship-stripping & visa denial

The practice of stripping citizenship from deserters and draft evaders goes all the way back to the Enrollment Act of 1865, which in § 21 (at 13 Stat. 491–492) provided both for denationalisation and a ban on re-naturalisation. In 1867, future president James A. Garfield, then a representative for Ohio’s 19th Congressional District, introduced H.R. 319, which attempted to repeal § 21, but it did not pass.

Another act in 1912 (37 Stat. 356) restated the citizenship-stripping provision of the Enrollment Act of 1865, expanded it to draft evaders as well as deserters, but restricted it to wartime only. The Office of the Law Revision Counsel claims (in U.S. Code Table III) that no part of the Enrollment Act of 1865 was codified as part of the U.S. Code; however, as they point out elsewhere, the 1912 Act that referenced it ended up as 8 USC § 11.

So in short, the ban on the (re)naturalisation of draft evaders stayed on the books long enough that it was still in force when the U.S. began tightening its immigration controls. The Immigration Act of 1924, which marked the start of the U.S.’ four-decade-long “Great Immigration Pause”, in § 13(c) prohibited the immigration of aliens ineligible to naturalise as citizens, aside from religious workers and their dependents, professors, and university students; however, they could still enter as non-immigrants. Interestingly, 1924 was the same year in which the Supreme Court, in Cook v. Tait, upheld global citizenship-based taxation. Call it a coincidence, or perhaps a sign of the times.

Then, Nationality Act of 1940 § 306 restated the citizenship-stripping provisions of the Enrollment Act of 1865 in clearer form, using the phrase “ineligible to become a citizen” — indicating the drafters’ intent to bring emigrant draft evaders within the scope of the entry ban of the Immigration Act of 1924, if it didn’t cover them already. However, the 1940 Act at least retained the requirement of a conviction for the ineligibility to citizenship (and hence the entry ban) to take effect. And finally, the Immigration and Nationality Act of 1952, in making explicit the entry ban on draft evaders rather than leaving it to be implied by the general entry ban on “aliens ineligible to citizenship”, also removed the requirement for a conviction. It also extended the ban to cover re-entry as a non-immigrant.

Vietnam War emigrants

If there was ever any legal question whether the entry ban on draft evaders applied to former citizens, the curious late 1960s and early 1970s saga of Thomas Glenn Jolley answered it definitively in the affirmative. I wrote up his case in more detail a couple of years ago over on Wikipedia, but in brief, Jolley was a native of North Carolina who fled to Canada in February 1967 after the FBI arrested him on charges of violating the Selective Service Act. By three months later he had obtained Canadian landed immigrant status and formally renounced his U.S. citizenship at the U.S. consulate in Toronto, making him stateless.

However, less than a year later Jolley turned up in Florida, where he had snuck in illegally and found work as a journalist. The FBI caught up with him again, and the INS began deportation proceedings against him. The Board of Immigration Appeals affirmed that the draft-dodger ban applied to ex-Americans — even stateless ones — just as to any other non-citizens, and the Fifth Circuit upheld the BIA’s reasoning (441 F.2d. 1245 (1971)):

In order for petitioner, a United States citizen by virtue of his birth, to be subject to deportation the Government must demonstrate that he has lost his United States citizenship through expatriation and assumed the status of an alien … While we comprehend Jolley’s argument and contention concerning his plight, so long as the draft remains a valid obligation of citizenship, it cannot constitute legal duress. Jolley chose to avoid what he considered a nefarious burden of citizenship. Having exercised this choice, Jolley may not be relieved of the consequences flowing from it. We therefore hold that petitioner’s renunciation of his United States citizenship was voluntary and that he must be treated as an alien for purposes of judging the validity of the deportation order …

There can be little doubt that petitioner remained outside the United States to avoid military service. Although Jolley disputes the fact, the evidence clearly reveals that he failed to respond to induction orders issued after he renounced his citizenship. Indeed, the very basis of his first argument — that he did not voluntarily renounce his citizenship — is that he was compelled to abandon his country because of his abhorrence of the Selective Service laws. We therefore think it clear that petitioner ‘remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency.’ Having done so, petitioner is ineligible for the relief provided by section 241(f) since he is not ‘otherwise admissible.’

However, having ruled Jolley deportable, the U.S. government was left with the minor problem that Canada didn’t want him back, and so he lived out the rest of his life in the U.S. until his death early last year.

Carter’s pardon

Barely five years after Jolley exhausted all his appeals, President Carter issued Proclamation 4483 and Executive Order 11967 — pretty much the first thing he did after taking office — extending an unconditional pardon to everyone who evaded the draft from the Gulf of Tonkin Incident up to the Paris Peace Accords. Carter’s pardon didn’t restore citizenship to people like Jolley who had already renounced it, nor to others who had intentionally relinquished it by becoming citizens of their new homes (see e.g. Joseph Dellapenna, “The Citizenship of Draft Evaders after the Pardon”, 22 Villanova Law Review 531, January 1977). However, the pardon did rescind the entry ban on them.

The third paragraph of the Executive Order, which rescinded the entry ban, is rather confusingly worded, in that it has no time limit and thus seems to exempt not just the Vietnam War pardon recipients but earlier draft evaders as well:

Any person who is or may be precluded from reentering the United States under 8 U.S.C. 1182(a)(22) or under any other law, by reason of having committed or apparently committed any violation of the Military Selective Service Act shall be permitted as any other alien to reenter the United States.

The Attorney General is directed to exercise his discretion under 8 U.S.C. 1182(d)(5) or other applicable law to permit the reentry of such persons under the same terms and conditions as any other alien.

The only exceptions to either the pardon itself or to the rescission of the entry ban are for violent offenders (e.g. people who set bombs at Selective Service Offices) and for Selective Service System employees (e.g. those who took bribes or used their position to gain other unlawful advantages). Of course, those who weren’t pardoned might still be in danger of arrest & prosecution after entering the U.S., but they shouldn’t be inadmissible in the first place. However, from the Foreign Affairs Manual guidance below, we can see that the State Department interprets the rescission of the entry ban to apply only to Vietnam War draft evaders, not those from earlier wars — though it’s not clear whether the people actually being denied visas today are those draft evaders from earlier wars, or instead deserters from the Vietnam War.

Almost three years ago, Petros suggested that Carter’s pardon could be the model for a similar resolution of problems facing U.S. Persons abroad today. Yet even if such a pardon were extended, it’s not likely that ex-Americans once burned would rush back to the “Homeland” in response. As Peter Kusch wrote in his 2001 book All American Boys: Draft Dodgers in Canada from the Vietnam War (emphasis mine; footnotes omitted):

While the majority of deserters were available to apply for a more limited amnesty, not completely covering them in all instances, it was this group that more readily returned to live in the United States. With amnesty, Canadian-based draft dodgers could safely reenter the United States. While Carter’s plan was welcomed by the majority of the expatriates, it was not, however, celebrated as a victory over America, or a chance to renew their lives back home. Rather, it was viewed as a measure enabling them to visit their families without fear of arrest at the border. What amnesty did was put to the test the expatriates’ earlier claims that their move north was permanent, as nothing prevented their return. And while many were willing to return for visits, there was no exodus of white middle-class dodgers from Canada. As Surrey and others have pointed out, the U.S. media lined up at border crossings in anticipation of tearful reunions. The picture turned out to be somewhat different.

Deserters who were unable to qualify for amnesty could still face arrest at the border and subsequent prosecution, but according to a CBC report on one such case from about a decade ago, “the Marine Corps has been giving Vietnam-era deserters general discharges” rather than trying to prosecute them (it didn’t mention the practices of other parts of the military, however).

Recent State Department guidance

The notes to 9 FAM 40.82 provides more detail about the entry ban on emigrant draft evaders. (The notes to 9 FAM 40.81 also go into more detail about their ineligibility to citizenship.) First, 9 FAM 40.82 N1.1 confirms that the State Department continues to apply this ground of ineligibility to people who were U.S. citizens at the time of their departure:

The Immigration Act of 1990 (Public Law 100-649) amended former INA 212(a)(22) to INA 212(a)(8) and changed the word “persons” to “alien”. Consequently, a U.S. citizen who departed the United States to avoid the draft or who deserted the U.S. Armed Forces and departed would not be ineligible under INA 212(a)(8)(B). The Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (Public Law 102-232), however, amended INA 212(a)(8) to again refer to “persons”. Thus, this section again applies to anyone, including a former U.S. citizen, who is currently applying for a visa (other than a person who left as a nonimmigrant and is seeking to reenter the United States as a nonimmigrant)

I wasn’t able to find any debate on the change in either of those laws. This isn’t the first time we’ve seen a so-called “technical amendment” drastically alter the scope of a law’s application. A similar law in 1993 quietly tightened the old requirement that U.S. citizens carry “a passport” (without specifying a passport issued by which country) when entering & leaving the United States, requiring thenceforth that they carry “a United States passport” — though in that case, the State Department had long ignored what the law actually said and interpreted it to mean “United States passport” anyway.

Second, the State Department explains the standards of evidence required to deny someone a visa under this law: no conviction even at drumhead, but simply a bureaucratic determination:

To invoke ineligibility under INA 212(a)(8)(B), the departure or remaining abroad must have been for the primary purpose of evading or avoiding military service. The consular officer must determine in the light of all the facts and circumstances of the individual case whether an alien departed from or remained outside the United States primarily to evade or avoid
military service or whether they did so for some other reason …

Under this ground of ineligibility, no conviction for desertion or draft evasion is required. The consular officer need only be satisfied from the evidence that the applicant departed from or remained outside the United States to evade or avoid military service.

In Note 5, the State Department also confirms that they continue to apply the entry ban to non-Vietnam War draft evaders:

President Carter’s general pardon has been interpreted to include alien Vietnam-era violators of the Selective Service laws only. Vietnam-era deserters are not included in the pardon. Accordingly, aliens who departed the United States or remained abroad for the purpose of avoiding induction into service between August 4, 1964, and March 28, 1973, are considered to have been relieved of excludability under the second clause of INA 212(a)(8)(B), and may be issued any type of immigrant or nonimmigrant visa for which they are found eligible, if they have not been convicted for that action.

Finally, in Note 2, State seems to limit the definition of “period declared by the President to be a national emergency:

INA 212(a)(8)(B) has application at any time the United States is at war or in a state of national emergency, and a state of national emergency existed from September 24, 1939, to September 24, 1978. Consequently, as indicated in 9 FAM 40.82 N5 below, an alien who departed from or remained outside the United States to evade or avoid military service between September 8, 1939, and September 24, 1978, would be subject to the second clause of INA 212(a)(8)(B).

However, as a recent USA Today article revealed, the U.S. is still in a state of emergency — in fact, thirty states of emergency. This may be bad news for deserters from after the end of the 1939–1978 state of emergency — like David Hemler, previous discussed here — though it’s not clear whether all of the states of emergency listed by USA Today qualify for purposes of the entry ban on draft evaders & deserters.

Here is a (not-necessarily representative) account about how a lawyer helped his client overcome the bar to re-naturalisation. Keep in mind that State and USCIS may have very different standards for making the determination of what constitutes “departing from or remaining outside the United States et cetera“:

Our client was born and always lived in another country, where he was a citizen. He was also a US citizen by birth to a US citizen mother. Our client formally renounced his US citizenship on his 18th birthday, the very day he would have been subject to registration for the draft during the Vietnam War. He then continued his studies in his country of citizenship. Years later, he moved to the United States, married a US citizen, became a permanent resident, and had US citizen children. He now wanted to naturalize and become a US citizen himself. Should he apply? The issue: the law prohibits “draft evaders” from becoming US citizens; in particular, any person who has departed from or remained outside the United States to avoid or evade military training or service in time of war or national emergency is inadmissible to the United States. The Vietnam era was such a time.

We offered our best analysis to help the client decide, twenty years after renunciation, whether to become a US citizen once more. We figured that he had never been subject to US draft laws because at the age of eighteen he was neither a resident of the United States, nor (any longer) a US citizen. Further, he could not have departed from the United States to avoid military service because he was never resident in the United States to begin with. And his primary purpose in remaining outside the United States was not to avoid or evade military training, but to continue with his studies. Moreover, he had the right to renounce his US citizenship and did so properly. And he paid the penalty: by renouncing his citizenship he became an alien, and was thereafter treated like any other alien by the US government. The client followed our guidance and successfully naturalized.

A “two-step transaction” for avoiding the Constitution

As mentioned above, the visa ineligibility for non-citizen deserters & draft avoiders is rooted firmly in the older practice of stripping citizenship from citizen deserters & draft avoiders. However, in Trop v. Dulles, 356 U.S. 86 (1958), the Supreme Court declared the latter practice to be cruel and unusual punishment — at least with regards to deserters — and thus unconstitutional. So Congress and the Executive Branch lost the power to recategorise “citizens” as “aliens” unilaterally for punitive purposes. But in taking away that power, Chief Justice Warren made a statement which sounds profoundly disturbing in today’s context: “the expatriate has lost the right to have rights”.

There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.

This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.

With that in mind, you can see how nasty and vindictive people in the other two branches of government, or even some who followed Warren into the judiciary, might read a certain passage further up in Trop: not as a spirited argument for the rights of citizens, but a guide on how to deprive them of those rights. Warren was practically pointing out that, given the standards the Supreme Court had established, it would be far less effort for the government to pile up the alleged “duties of citizenship” to weigh especially heavily on citizens they disliked so that they would be pushed towards renunciation, than try to prove an expatriation on the basis of conduct whose voluntariness the citizen can always contest.

Citizenship is not a license that expires upon misbehavior. The duties of citizenship are numerous, and the discharge of many of these obligations is essential to the security and well-being of the Nation. The citizen who fails to pay his taxes or to abide by the laws safeguarding the integrity of elections deals a dangerous blow to his country. But could a citizen be deprived of his nationality for evading these basic responsibilities of citizenship? In time of war the citizen’s duties include not only the military defense of the Nation but also full participation in the manifold activities of the civilian ranks. Failure to perform any of these obligations may cause the Nation serious injury, and, in appropriate circumstances, the punishing power is available to deal with derelictions of duty. But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship, and this petitioner has done neither, I believe his fundamental right of citizenship is secure.

In short, the Warren Court did not stop the other two branches of government from pushing citizens who engaged in conduct they disliked to recategorise themselves as ex-citizens. And then those ex-citizens could be treated in precisely the same way that the Warren Court forbade treating citizens: as people without rights, to whom could be meted out cruel and unusual punishment such as banishment by fiat — a permanent ban on seeing their hometowns or their family members too unwell to travel abroad — subject to no requirements of due process and reviewable not even by the Supreme Court itself, thanks to the doctrine of consular nonreviewability. In short, this is forcible destruction of the rights of citizenship, by means of “outsourcing” one of the unconstitutional steps in that destruction.

In taxation, this would be called a “step transaction”, and the Supreme Court has provided clear guidance on how the IRS and the Tax Court should analyse such transactions, to the disfavour of the would-be tax avoider. “A given result at the end of a straight path is not made a different result because reached by following a devious path.” Minnesota Tea Co. v. Helvering, 302 U.S. 609, 613 (1938). The would-be Constitution avoider, on the other hand, is bound by no step transaction doctrine.

The currently-popular rationale of “diaspora taxation in exchange for the benefits of being an American citizen” rings especially hollow in light of Justice Goldberg’s words in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 184 (1963) — not so coincidentally, the case which struck down the draft-evaders part of the “citizenship stripping for deserters and draft evaders” provision which grew out of the Enrollment Act of 1865:

The compelling answer to this is that the Bill of Rights which we guard so jealously and the procedures it guarantees are not to be abrogated merely because a guilty man may escape prosecution or for any other expedient reason. Moreover, the truth is that even without being expatriated, the evader living abroad is not in a position to assert the vast majority of his component rights as an American citizen. If he wishes to assert those rights in any real sense he must return to this country, and by doing that he will subject himself to prosecution.

Conclusion

The U.S. is not the only country which banishes draft evaders: witness the saga of Yoo Seung-jun, who provided what I’ve referred to before as “[South Korea]’s very own Kenneth Dart moment”. But no American bank or government office would dare ask a Korean or Turkish or Swiss expat — let alone a native-born American citizen with heritage from one of those countries — if he’s completed his military service over there, or discriminate against him in customer service or hiring if he hadn’t. If another government tried imposing that requirement on U.S. companies in an effort to track down and fine their own citizens, Congress would quickly jump to express hypocritical outrage about “extraterritorial laws”, just as they did when the European Union dared to require U.S. airlines operating in EU airspace to participate in their emissions trading scheme.

More importantly, when viewed from today’s FATCA’ed-up world, the history of the Immigration & Nationality Act’s treatment of draft evaders looks far less like a victory for the rights of citizens, and far more like a waypoint in the executive & legislative branches’ efforts to control and punish the diaspora simply for living abroad. It took them a while, but clearly they’ve learned how to pervert the Warren Court’s efforts to prevent them from using nationality law as a tool of punishment.