MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS joins, dissenting.
Petitioner seeks review of the Service's order deporting him to Canada, his nation of citizenship. The Ninth Circuit noted that the Service's "discretion . . . might have been exercised with greater compassion," but nonetheless
upheld the order on the theory that "the scope of . . . review in this area is extremely narrow."
The facts are peculiar; or, more accurately, the Service's action is peculiar in light of the facts. Moving to this country with his parents in 1953 (at age 9), petitioner acquired permanent resident alien status. As such, he was subject to the draft, 62 Stat. 605, as amended, 65 Stat. 76, 50 U. S. C. App. § 454 (a), and he duly registered on his 18th birthday. In August 1966, he was ordered to report for induction on September 28, 1966. Possessing strong views against war and conscription, petitioner decided to go to Canada, rather than serve. At the border, he turned in his Alien Immigration Card but expressly refused to sign a formal renunciation of his permanent resident status. Very quickly, he thought better of his decision to leave. On September 28, his induction date, petitioner telephoned his draft board to announce that he was returning to the United States to surrender to a United States Attorney and to accept the legal penalty for refusing induction. On October 3, 1966, petitioner flew to Chicago and turned himself in to the United States Attorney. The Government took no action for 21 months, during which time petitioner studied at an American university.
Finally, in July 1968, petitioner was indicted under 62 Stat. 622, 50 U. S. C. App. § 462 (a), for "[evading] or [refusing] . . . service in the armed forces." He pleaded guilty and was sentenced to six months' imprisonment and 18 months' probation, the latter conditioned on his doing civilian work of national importance. Petitioner served this sentence in full.
Two years later, the Service moved to deport him, on grounds that he had fled the country to evade the draft, 66 Stat. 184, 8 U. S. C. § 1182 (a)(22), and abandoned his immigrant status in the process, 66 Stat. 183, as amended,
Stat. 918, 8 U. S. C. § 1182 (a)(20). This was a surprise, for petitioner thought that the books on this matter had been balanced by his voluntary return to the United States, surrender to authorities, guilty plea, and service of sentence. The Service found that no Government official ever promised petitioner that such would be the case. Still, the reasonableness of petitioner's impression is clear enough. Prevailing law afforded aliens an exemption from Selective Service liability if they were willing to forfeit permanent resident status and any chance at eventual citizenship, 62 Stat. 606, 50 U. S. C. App. § 454 (a) (1964 ed.). Exercising this option meant an almost certain loss of an alien's right to remain in this country. Rather than exercise this option, petitioner accepted draft law liability, and the Government solemnized his choice with prosecution, conviction, and punishment under the draft laws. Now the same Government, in the guise of the Immigration Service, wishes to disregard his earlier choice, and the burdens imposed incident to it, and to deport petitioner as if none of this had happened. In my view, the two legal grounds asserted to support deportation do not overcome the obvious injustice of the order.
First : The Service found petitioner deportable for having re-entered the country, after his flight to Canada,
"not in possession of a valid unexpired immigrant visa." 8 U. S. C. § 1182 (a)(20).
The theory is that petitioner abandoned permanent resident status, and thus his visa, when he turned in his alien card at the border. Standing alone, this theory would not be unreasonable. But I cannot square it with the fact the Government prosecuted petitioner for breaching an induction order premised on his status as a permanent resident. At the time, ...