tomatic. The Service attempt to equate a legal right to exemption with effective relief as a matter of law flies in the face of reality. The fact remains that the Selective Service officials mistakenly concluded that a permanent resident alien had no such right, and Itzcovitz had to go to court to establish his claim. Similarly untenable is the Service view that the "not effectively relieved" holding of the courts applies only where the alien is actually inducted into our armed forces. Whatever surface plausibility that view may have previously had is now undermined by the Supreme Court's recent decision in Astrup v. INS, 402 U.S. 509, 39 L.W. 4610 (No. 840, October Term, 1970, May 24, 1971). In that case, a permanent resident alien who had applied for exemption and had been classified IV-C was reclassified 1-A following enactment of the 1951 amendment barring exemption for permanent residents. On physical examination, he was found to be unfit, was reclassified IV-F and was never inducted. The Court stated (39 L.W. at p. 4611): "We think that Congress used the words 'is or was relieved' to provide that an alien who requests exemption from the military service be held to his agreement to relinquish all claims to citizenship only when the Government abides by its part of the agreement and completely exempts him from service in our armed forces." (Emphasis in original.) Unlike Astrup, who had for a temporary period enjoyed exempt Class IV-C status, the applicant in the case before us has never been classified other than 1-A. 2. Equally untenable is the Service thesis that the applicant was accorded de facto exemption. The assertion that the conclusive effect given to Selective Service System records by section 315 (b) of the Act settles the matter merely begs the question. Analysis of those records in evidence reveals that what the applicant actually received fell considerably short of complete exemption. While the form submitted to him for signature refers to "exemption" and while this term appears in the correspondence between Selective Service and Immigration Service officials, it is significantly lacking in the communications addressed to the applicant himself, advising him what he would receive in exchange for his application. He was told that he must sign the application 2 E.g., United States v. Hoellger, 273 F.2d 760 (2 Cir., 1961); Cannon v. United States, 288 F.2d 269 (2 Cir., 1961); In re Rego's Petition, 289 F.2d 174 (3 Cir., 1961); United States v. Lacher, 299 F.2d 919 (9 Cir., 1962). 3 The use of the term "exemption" in the application form and in the letter to the applicant should not be surprising, since that is the statutory term which calls into play the bar of section 315 (a). form if he desired continued "postponement" of induction, and that if he signed the form and continued in 1-A classification, "subsequent processing in your case will be held in abeyance until further notice." This is a far cry from the "complete exemption" which the Court in Astrup, supra, held can alone invoke the bar of section 315(a). 3. In support of its contention that the applicant was in fact effectively relieved, the Service cites a line of cases holding that even de facto relief accorded through a mistake in law is sufficient to meet the requirements of section 315 (a). The cases are readily distinguishable, both in fact and in principle. In those cases, the aliens had been mistakenly placed in exempt Class IV-C, a classification which the courts later concluded they were not entitled to under the law. Nevertheless, the courts held, the fact that the aliens had actually been given the relief they had applied for brought into play the statutory bar. The applicant's case is quite different. He was never granted the complete exemption he applied for. In his case, the mistake of law, far from conferring on him an exempt status to which he was not legally entitled, actually deprived him of the complete exemption to which he was legally entitled. In the cited cases, the courts properly held that de facto relief, mistakenly granted, nevertheless constitutes effective relief for section 315(a) purposes. It by no means follows that where exemption is withheld through a mistake of law, the statutory bar is equally applicable. In closing, we must correct a Service misconstruction of our prior order. In that opinion, we nowhere implied that the Attorney General's Opinion, 42 Op. Att'y Gen. No. 28 (1968), and the Itzcovitz decision do not govern in this case. Quite the contrary, we pointed out that the Attorney General's Opinion had finally settled the issue and that the court in Itzcovitz had endorsed the Attorney General's conclusion and rejected the contrary views of the Selective Service Director. What we did stress was that when the applicant sought relief in early 1967, the issue was not yet resolved and the Selective Service officials misakenly concluded that 4 In re Skender's Petition, 248 F.2d 92 (2 Cir., 1957), cert. denied 355 U.S. 931; Rosio v. Shaughnessy, 134 F. Supp. 217 (S.D.N.Y., 1954). 5 (Motion for Reconsideration, p. 6): "The implication in the Board decision (p. 5) that the Attorney General's Opinion and Itzcovitz do not govern in this case, because they came after Mincheff was relieved from military service, is disturbing. In all significant aspects the facts in Itzcovitz are the same as here. There is no reason why a different rule of law should apply. If Itzcovitz was exempted, as the court held, then equally, Mincheff received exemption." they lacked power to grant him complete exemption. It is this fact which underlies our conclusion that what the draft board actually gave him fell substantially short of the permanent exemption which alone can constitute effective relief for section 315 (a) purposes. ORDER: The Service motion for reconsideration is denied. MATTER OF LOPEZ In Deportation Proceedings A-14611600 Decided by Board July 19, 1971 Respondent's conviction, upon his plea of guilty, of the offense of manslaughter in violation of Alaska Statutes 11.15.040 "as charged in the indictment", which indictment states that respondent "did unlawfully and feloniously kill" another person "by shooting him with a gun", is not a conviction of a crime involving moral turpitude, since the statute involved encompasses both voluntary and involuntary manslaughter and it is not distinctly set forth in the indictment that the offense was voluntary rather than involuntary manslaughter. CHARGE: Order: Act of 1952-Section 241 (a) (4) [8 U.S.C. 1251 (a) (4)]—Convicted of crime involving moral turpitude within five years after entry-manslaughter. ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: B. G. Greenwald This is an appeal from an order of the special inquiry officer, dated April 12, 1971, finding the respondent deportable under section 241 (a) (4) of the Immigration and Nationality Act, because of a conviction for a crime involving moral turpitude (manslaughter) within five years of entry. The appeal will be sustained. The respondent is a 43-year-old married male, a native and citizen of the Republic of the Philippines, who was admitted as an immigrant on February 8, 1966. The record indicates that he was convicted, on April 10, 1970, upon his plea of guilty, of the offense of manslaughter in violation of Alaska Statutes 11.15.040 "as charged in the indictment" The single issue presented by this appeal is whether or not the offense for which respondent was convicted is an offense involving moral turpitude within the contemplation of the immigration and nationality laws. The presence or absence of moral turpitude must be determined in the first instance from a consideration of the crime as defined by the statute. It is only when the statute includes within its scope offenses which do and some which do not involve moral turpitude that we turn to a consideration of the indictment, plea, verdict and sentence, Matter of S-, 2 I. & N. Dec. 353 (BIA, 1945 and A.G., 1945), at page 357. It is well settled that the definition of a crime must be taken at its minimum, Matter of B-, 4 I. & N. Dec. 493 (BIA, 1951), and that voluntary manslaughter involves moral turpitude, although involuntary manslaughter does not, Matter of B-, supra. Therefore, we must establish whether the respondent was convicted of voluntary manslaughter or involuntary manslaughter. We find that the statute under which respondent was convicted, Alaska Statutes 11.15.040,1 makes no distinction between voluntary and involuntary manslaughter, Jennings v. State, 404 P.2d 652 (Alaska 1965). In the present case the indictment charged: That on or about the 18th day of March, 1969, at or near Cold Bay, in the Third Judicial District, State of Alaska, Agripino Santos Lopez did unlawfully and feloniously kill James J. Schiavone by shooting him with a gun. All of which is contrary to and in violation of AS 11.15.040 and against the peace and dignity of the State of Alaska. The special inquiry officer based his determination upon the ruling found in Matter of S-, 2 I. & N. Dec. 559 (C.O., 1946; BIA, 1946; and A.G., 1947), a case in which an Ohio manslaughter statute was considered. It was also found to make no distinction between voluntary and involuntary manslaughter. The case was finally decided by the Attorney General who found, at page 1 Except as provided in sections 10-30 of this chapter, a person who unlawfully kills another is guilty of manslaughter, and is punishable by imprisonment in the penitentiary for not less than one year nor more than 20 years. 2 The court said: "The crime of which Jennings was convicted, although called involuntary manslaughter in the instructions and the verdict, was the same as the crime of manslaughter as defined by statute." We note that the accused was found guilty of involuntary manslaughter even under a second degree murder indictment charging that he "did willfully, unlawfully, feloniously, purposely and maliciously kill...." |