When I was 18 years old I deserted from the Military and in June of 2000 I was discharged from the military with a Bad Conduct release. I am now 40 years old and a permanent US resident. I want to apply for citizenship but my research drives me to believe that I can't. I am looking at filling out a DD 293 Application for the review of discharge requesting to lower my conviction from BCD to General. Do I have a chance?
Want to apply for Citizenship but listed as deserter from Military
- Thread starter CP01
- Start date
That's a new one as far as I know in this forum. I hope someone has expertise. My non-expert opinion would be that because it happened a long time ago and it doesn't seem like it is something that carries a long prison conviction that you might be fine. It might be good to start gathering proof of good moral character. I mean, any community work or any other charitable or positive contributions to the community. It might be good to consult a good immigration lawyer too.
Just to clarify, you are talking about the U.S. military, right? Also, did you have a green card when you enlisted in the military? If not, what was your immigration status then?
It does not look promising.
INA 314: INELIGIBILITY TO NATURALIZATION OF DESERTERS FROM THE ARMED FORCES OF THE UNITED STATES
Sec. 314. [8 U.S.C. 1425] A person who, at any time during which the United States has been or shall be at war, deserted or shall desert the military, air, or naval forces of the United States, or who, having been duly enrolled, departed, or shall depart from the jurisdiction of the district in which enrolled, or who, whether or not having been duly enrolled, went or shall go beyond the limits of the United States, with intent to avoid any draft into the military, air, or naval service, lawfully ord ered, shall, upon conviction thereof by a court martial or a court of competent jurisdiction, be permanently ineligible to become a citizen of the United States; and such deserters and evaders shall be forever incapable of holding any office of trust or of profit under the United States, or of exercising any rights of citizens thereof.
SEE: http://www.state.gov/documents/organization/87030.pdf
A small excerpt:
9 FAM 40.82 N5.3 Aliens Ineligible to Citizenship Not Affected by Pardon
(TL:VISA-46; 08-26-1991)
The Presidential pardon provides no relief for an alien found ineligible under the first part of INA 212(a)(8)(B) as an alien who is ineligible for citizenship i.e., a person who was convicted of either desertion from or leaving the country to evade military service. [See INA 314, 9 FAM 40.82 Related Statutory Provisions.] Ineligibility to citizenship because of seeking and obtaining exemption from service on the grounds of alienage is irrelevant in this context.
Jimmy Carter Pardon: http://www.justice.gov/pardon/executive_order.htm
9 FAM 40.82 N6 EFFECT OF DISCHARGE ON DESERTERS
(TL:VISA-4; 11-19-1987)
A deserter who subsequently received a discharge may (or may not) have been relieved of such ineligibility, depending on the disposition of the desertion aspect of the case by the appropriate branch of service. Any desertion involving a subsequent discharge must be referred to the Department (CA/VO/L/A) for an advisory opinion.
SEE: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104.html
Interpretation 314.1 Deserters; draft evaders.
Since the Act of March 3, 1865, similar statutory provisions 1/ have prohibited the naturalization of enrolled draft evaders and deserters from the Untied States armed forces. As amended but the Act of August 3, 1912, the Revised Statutes limited ineligibility to war-time desertions, a limitation that has been reflected in all subsequent legislation.
Interpretation 314.2 Effect of pardon and amnesty.
A deserter who is unconditionally pardoned by the President is relieved from penalties imposed by law and thus may apply for naturalization. 7/
Under authority contained in the Act of March 3, 1865, as amended in 1912, 8/ the President by proclamation dated March 5, 1924, 9/ granted an amnesty to all World War I participants who deserted on or after November 11, 1918, the date upon which actual hostilities ceased and prior to July 2, 1921, the date on which the war formally ended.
An amnesty and pardon similar to that above was conferred upon all who deserted during World War II, if the offense was committed on or after August 14, 1945, the date active hostilities terminated, and before June 25, 1950, the date of the Korean invasion. 10/
As to all the above persons, the statutory bar to naturalization contained in former legislation and the current statute was removed by these proclamations.
For desertion or draft evasion as a basis for expatriation under the current law see INTERP 349.
A desertion commenced during a time of peace is not considered a war-time desertion within the above requirement, even if continued after the outbreak of hostilities.
The period of the Korean conflict constiuted a time of war within the meaning of the 1940 legislation. 1/ , 2/
While conviction of desertion by court martial was first required by the above 1940 statute, the courts imposed a similar requisite under the earlier law; 3/ and, neither an admission of desertion, 4/ a finding of desertion by a civil court, 5/ nor a listing of a person on official military records as a deserter 6/ precluded naturalization in the absence of the required conviction.
The existing law provides for conviction by a court of competent jurisdiction as well as by court martial, and extends ineligibility to the draft evader who has not been enrolled under the conscriptive statute.
FROM: http://www.veteransforamerica.org/wp-content/uploads/2008/11/28-Immigration.pdf
Less-than-Honorable Discharge, Desertion, Failure to Appear for Induction, Draft Avoidance Based on Alienage
Persons not honorably discharged may not avail themselves of the special rules that apply to those in active service. Further, citizenship granted because of service in the U.S. military may be revoked if the person is dishonorably discharged at any point prior to five years of honorable service. However, a dishonorable discharge and the crime of failure to appear for induction do not necessarily indicate a lack of good moral character and do not bar naturalization.
Note that military law describes five types of discharges: honorable discharge, general discharge under honorable conditions, discharge under other than honorable conditions, bad conduct discharge and dishonorable discharge. The USCIS considers an honorable discharge and general discharge under honorable
conditions to meet the definition of “honorable discharge.”
Desertion is a permanent bar to naturalization. However, if you are the beneficiary of an individual pardon or a group pardon for any crime or offense, including desertion, you may naturalize.
Non-citizens who avoided the draft because they are not citizens are not eligible to apply for naturalization, though many exceptions apply.
INA 314: INELIGIBILITY TO NATURALIZATION OF DESERTERS FROM THE ARMED FORCES OF THE UNITED STATES
Sec. 314. [8 U.S.C. 1425] A person who, at any time during which the United States has been or shall be at war, deserted or shall desert the military, air, or naval forces of the United States, or who, having been duly enrolled, departed, or shall depart from the jurisdiction of the district in which enrolled, or who, whether or not having been duly enrolled, went or shall go beyond the limits of the United States, with intent to avoid any draft into the military, air, or naval service, lawfully ord ered, shall, upon conviction thereof by a court martial or a court of competent jurisdiction, be permanently ineligible to become a citizen of the United States; and such deserters and evaders shall be forever incapable of holding any office of trust or of profit under the United States, or of exercising any rights of citizens thereof.
SEE: http://www.state.gov/documents/organization/87030.pdf
A small excerpt:
9 FAM 40.82 N5.3 Aliens Ineligible to Citizenship Not Affected by Pardon
(TL:VISA-46; 08-26-1991)
The Presidential pardon provides no relief for an alien found ineligible under the first part of INA 212(a)(8)(B) as an alien who is ineligible for citizenship i.e., a person who was convicted of either desertion from or leaving the country to evade military service. [See INA 314, 9 FAM 40.82 Related Statutory Provisions.] Ineligibility to citizenship because of seeking and obtaining exemption from service on the grounds of alienage is irrelevant in this context.
Jimmy Carter Pardon: http://www.justice.gov/pardon/executive_order.htm
9 FAM 40.82 N6 EFFECT OF DISCHARGE ON DESERTERS
(TL:VISA-4; 11-19-1987)
A deserter who subsequently received a discharge may (or may not) have been relieved of such ineligibility, depending on the disposition of the desertion aspect of the case by the appropriate branch of service. Any desertion involving a subsequent discharge must be referred to the Department (CA/VO/L/A) for an advisory opinion.
SEE: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104.html
Interpretation 314.1 Deserters; draft evaders.
Since the Act of March 3, 1865, similar statutory provisions 1/ have prohibited the naturalization of enrolled draft evaders and deserters from the Untied States armed forces. As amended but the Act of August 3, 1912, the Revised Statutes limited ineligibility to war-time desertions, a limitation that has been reflected in all subsequent legislation.
Interpretation 314.2 Effect of pardon and amnesty.
A deserter who is unconditionally pardoned by the President is relieved from penalties imposed by law and thus may apply for naturalization. 7/
Under authority contained in the Act of March 3, 1865, as amended in 1912, 8/ the President by proclamation dated March 5, 1924, 9/ granted an amnesty to all World War I participants who deserted on or after November 11, 1918, the date upon which actual hostilities ceased and prior to July 2, 1921, the date on which the war formally ended.
An amnesty and pardon similar to that above was conferred upon all who deserted during World War II, if the offense was committed on or after August 14, 1945, the date active hostilities terminated, and before June 25, 1950, the date of the Korean invasion. 10/
As to all the above persons, the statutory bar to naturalization contained in former legislation and the current statute was removed by these proclamations.
For desertion or draft evasion as a basis for expatriation under the current law see INTERP 349.
A desertion commenced during a time of peace is not considered a war-time desertion within the above requirement, even if continued after the outbreak of hostilities.
The period of the Korean conflict constiuted a time of war within the meaning of the 1940 legislation. 1/ , 2/
While conviction of desertion by court martial was first required by the above 1940 statute, the courts imposed a similar requisite under the earlier law; 3/ and, neither an admission of desertion, 4/ a finding of desertion by a civil court, 5/ nor a listing of a person on official military records as a deserter 6/ precluded naturalization in the absence of the required conviction.
The existing law provides for conviction by a court of competent jurisdiction as well as by court martial, and extends ineligibility to the draft evader who has not been enrolled under the conscriptive statute.
FROM: http://www.veteransforamerica.org/wp-content/uploads/2008/11/28-Immigration.pdf
Less-than-Honorable Discharge, Desertion, Failure to Appear for Induction, Draft Avoidance Based on Alienage
Persons not honorably discharged may not avail themselves of the special rules that apply to those in active service. Further, citizenship granted because of service in the U.S. military may be revoked if the person is dishonorably discharged at any point prior to five years of honorable service. However, a dishonorable discharge and the crime of failure to appear for induction do not necessarily indicate a lack of good moral character and do not bar naturalization.
Note that military law describes five types of discharges: honorable discharge, general discharge under honorable conditions, discharge under other than honorable conditions, bad conduct discharge and dishonorable discharge. The USCIS considers an honorable discharge and general discharge under honorable
conditions to meet the definition of “honorable discharge.”
Desertion is a permanent bar to naturalization. However, if you are the beneficiary of an individual pardon or a group pardon for any crime or offense, including desertion, you may naturalize.
Non-citizens who avoided the draft because they are not citizens are not eligible to apply for naturalization, though many exceptions apply.
Al Southner
Registered Users (C)
Not a snowball chance in hell for your case...
Each time you "eat dessert" from the military, unless you were a US citizen, your naturalization chances are nullified for life. It was a bad decision which will stay with you for a minimum of about a 1000 years. The dissertation from BigJoe is informative, but you will need to eat a burrito and diet coke to read it thoroughly and understand it...... I encouraged BigJoe to write in short responses, but he's addicted to long responses....
Was the BCD due to an article 85 conviction? If so, you're ineligible for naturalization.
It is not completely clear from the OP's initial post if he is indeed permanently ineligible for naturalization. I take it that BCD means "bad conduct discharge" and, as far as I know, a bad conduct discharge can only be given as a result of a court-martial. That looks like bad news in relation to INA 314. However, there might still be a chance that the OP is not permanently ineligible for naturalization. It is buried deep inside BigJoe's long dissertation above, specifically in the portion where he quotes the USCIS interpretation of INA 314, http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104/0-0-0-46303.html
The relevant portion reads:
"Since the Act of March 3, 1865, similar statutory provisions 1/ have prohibited the naturalization of enrolled draft evaders and deserters from the Untied States armed forces. As amended but the Act of August 3, 1912, the Revised Statutes limited ineligibility to war-time desertions, a limitation that has been reflected in all subsequent legislation.
A desertion commenced during a time of peace is not considered a war-time desertion within the above requirement, even if continued after the outbreak of hostilities."
I don't know what the legal meaning of "war-time" is, but if the time of the OP's desertion was not considered to be war-time, then the absolute bar to naturalization eligibility contained in INA 314 may not apply to him.
The relevant portion reads:
"Since the Act of March 3, 1865, similar statutory provisions 1/ have prohibited the naturalization of enrolled draft evaders and deserters from the Untied States armed forces. As amended but the Act of August 3, 1912, the Revised Statutes limited ineligibility to war-time desertions, a limitation that has been reflected in all subsequent legislation.
A desertion commenced during a time of peace is not considered a war-time desertion within the above requirement, even if continued after the outbreak of hostilities."
I don't know what the legal meaning of "war-time" is, but if the time of the OP's desertion was not considered to be war-time, then the absolute bar to naturalization eligibility contained in INA 314 may not apply to him.
SENTHIL MURUGESAN
Registered Users (C)
No chance of citizenship for a life . even not sure if greenc ard will be renewed . Please re join military and get those deserter name our of you !
And your opinion is based on what exactly??
Not a snowball chance in hell for your case...
I encouraged BigJoe to write in short responses, but he's addicted to long responses....
When I try to "cut to the chase" someone either agrues with it, requiring further counter-posts OR someone spews incorrect information, requiring a counter-post. I seek only to be thoroughly responsive to genuine questions that I can help with. I do make short posts to some that only require a short answer or I might make a nonsense response to a nonsense post/question.
Al Southner
Registered Users (C)
BigJoe,
I appreciate your informative answer, but maybe when someone rebuts you with incorrect information, you can try to cut and paste the relevant portion to rebut the "rebutter"...lol!!!! One thing you learn in law school, get to the point and there quickly, even if you are trying a $billion dollar case, the relevant information shouldn't be buried in a long monologue of points which can confuse the jury.
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BigJoe, rest assure that many members of this forum appreciate your long and well researched answer, it's informative and sheds light on a complicated case. Al Southner relax, don't read the post if you find it too long, instead, enjoy the view in the international space station, I'm sure is breathtaking.
Article 86 is AWOL, which is not the same as desertion article 85.
Also, a BCD seems less severe than a DD(dishonorable discharge).
Were you confined to a prison sentence before the BCD?
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Well, it looks like you relly need to talk to some competent immigration lawyers (preferably more than one, as your situation is rather nonstandard) before you do anything else.
Hopefully, they'll be able to clarify the situation regarding whether the permanent bar to naturalization eligibility described in INA 314 actually applies to you.
Jackolantern
Registered Users (C)
When you make those extra-long posts trying to preemptively cover every possible counter-argument, almost nobody reads your posts. I personally don't. So you're just wasting your time with those 5000-word posts.
Get straight to the point if you want people to read what you wrote, and then deal with the naysayers later if necessary.
Lino112
New Member
You posted this long ago but im new here, i think you have a shot for various reasons but you got to do a little research to see if my hypothesis is correct. 1) i believe the desertion bar comes into effect if your convicted of desertion. Although you left, did the special court martial convict you of desertion or lesser charge of unauthorized sbsence. If final conviction is listed as unauthorized absence, thats not desertion and your fine. 2) you said BCD, read the statute to see if the bar for citizenship required a dishonorable discharge because a BCD is NOT a Dishonorable discharge.