Napore v. Rowe

GILBERT, Circuit Judge (after stating the facts as above). [1] The petition for the writ is based upon the propositions that an alien, who has not declared his intention to become a citizen of the United States, is not subject to military duty; that the affidavit which the appellee presented to the local board, wherein he set forth that he was a non-declarant alien, was in itself sufficient to place him in the exempted class; and that therefore the local board in North Dakota had no authority to induct him into military service and certify him as a deserter. The court below was of that opinion, and held that the drafting of a nondeclarant alien was forbidden by law. To that construction of the law we are unable to assent. The Selective Service Act (Act May 18, 1917, c. 15, 40 Stat. 80 [Comp. St. 1918, § 2044e]) provides that all male persons within the prescribed ages shall be subject to registration, “and all persons so registered shall he and remain subject to draft into the forces hereby authorized, unless exempted or excused therefrom as in this act provided.” In brief, the act makes persons of the prescribed age subject to draft, unless exempted or excused by the designated authority. It does not follow that a nondeclarant alien is *834 ineligible to military duty under the act, or that he is automatically exempted from service. The facts which bring him within the exempted class, must be affirmatively proved by him before his local board, the tribunal created by the act, to which is given power to hear and_ determine, subject to review by appeal to a district board, “all questions of exemption under this act,” and the decision of the district board is made final. The' uniform ruling of the courts has been that, in order to obtain exemption, the intention of the nondeclarant alien must be expressed in the manner prescribed by law. United States v. Finley (D. C.) 245 Fed. 871 ; United States v. Bell (D. C.) 248 Fed. 995 ; Summertime v. Local Board, Division No. 10 (D. C.) 248 Fed. 832 ; Ex parte Blazekovic (D. C.) 248 Fed. 327 ; Ex parte Tinkoff (D. C.) 254 Fed. 222 . [2] The appellee has not presented to his local board a claim of exemption in accordance with the regulations, nor has he availed himself of the privilege accorded by the regulations of applying to the local board to reopen the case. All that he alleges by way of excuse for disregarding the regulations is in effect that he was ignorant of the law and the facts. Such ignorance is no ground for habeas corpus. The Japanese Immigration Case, 189 U. S. 86, 101 ; 1 Ex parte Kusweski, 251 Fed. 977 ; Ex parte Tinkoff, 254 Fed. 222 . The appellee’s failure to avail himself of the remedies afforded by the act and the rules precludes relief by habeas corpus, for it is only upon a showing of denial of a fair hearing or gross abuse of discretion in the local or district board that resort may be had to the courts. Angelus v. Sullivan, 246 Fed. 54 , 158 C. C. A. 280 ; United States v. Bell (D. C.) 248 Fed. 995 ; United States v. Heyburn (D. C.) 245 Fed. 360 ; Ex parte Beales (D. C.) 252 Fed. 177 . The. judgment is reversed, and the causé is remanded, with instructions to dismiss the writ and remand the appellee to custody. 23 Sup. Ct. 611, 47 L. Ed. 721 .