Brief for the respondent — Ceballos v. Shaughnessy

Supreme Court brief1957

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Text

- Argument:

EN REELS ELLE, Rel ROE :

Jurisdiction _ ---- eae ilk ini 2% si eee. cae

ER ee een eee Pee

Statutes involved _- - - - RN I Wa cw KL we .

\ (ciate ieacncwcisesa «c0ees eS ey ee ee SRS,

Summary of et on ------- cue ak Rate

OCOnnne

J. The government does not wily upon the holding

of the Court of Appeals that the Atforney Gen-

eral is @ necessary party 22° Eee ae 14

I. ’ Since petitioner was in fact relieved from service.

as a neutral alien, he is ineligible for citizenship _,

° and thereby is also ineligible for suspension of

_ deportation under the sapemgration Act of 1917

A ee 16

» -A. ‘The Selective Training and Service Actrot |

1940 and the regulations relieved peti-

tioner from service, irrespective of fur-

‘ther administrative action_____*____- 17

B. The selective service board; by its ¢onduct

in refraining from inducting petitioner,

recognized petitioner’s relief from lia-

bility. for military service__._*___---- 20°

C. The fact that petitioner’s: status sub- .

sequently changed does not negate the

fact that he did obtain exemption._-__ — 21

II. Debarment from citizenship under Section 3 (a) of

the Selective Training and Service Act of 1940,

results from the making of an application for ©

relief from military service by the alien_-..__-- nee 2x

A. Thelanguage, purpose, legislative history, |

judicial, and administrative construc- —~ —/

tion of Section 3 (a) show that the ap-

plication for exemption is the debarring .

ceist fais, ys 24 -

‘ The language abana ans eupiew ss 24

404786—56—-—1 (1)

: I

Abebisins-ASaiiaial ;

III. Debarment from citizenship, etc. sail ry,

: A. The language, purpose, etc.\—Continued

, Dont cect ces nse 25

| 3. The ee legislative his-

I seh nein Gaines Spin ea wikia 25

4. Judicial opinions. __..__....---- —

5..The contemporary administrative

cpmetrwctio®....... ..-..=.«4-.- 30 .

B. The historical development of this type of

legislation shows that the bar to citizen-

ship stems from the claim toexemption. . 32

. 1. The period prior to 1940. ___---- 32

2. The period subsequent to 1941 and -

prior to the 1952 immigration

lagistation....:.:..------------ 38

-3..The Immigration and ry

Fav RE TE Cs eo ooo Neccinten - 40

, IV. Petitioner’s request for suspension of denotes,

ee er made before the 1952 Act, is.not to be ome.

mined under the 1952 er nad oe a 46

CN . L ucweanekeon eben’ Seals eae . 47

Appendix A, Savates ek. tee ie Seog Se —

Appendix B, The circumstances of petitioner’s signing ofthe ~

exemption forms- .- -- - - - Pals eens Rese Ae Sap - §1

' CITATIONS 4

Cases: i

‘Ballester-Pons v. United States, 220 F. 2d 399, cer-

_, tiorari denied, 350 = 8 Rese a endian Sa

. Berini, Petition of, 112 F. Supp. 837--% - ----------- » 45

Caputo, Petition of, 118 F. Supp. 870---.------------ 29, 45

Cuozz20, Petition of, 235.F. 2d 184_..-..-.---------- 23

Dweck, Petition of, 106 F. Supp. 169--- ------------- 23

Fatoullah, Petition of, 76 F. Supp. 499- - - --- -------- 23

G, Matter of, 5 1. E. N. Dec. 106-------------- bncax 47

Gustavson, In re, 300 Fed. 251_..----------------- 36

, Machado v. McGrath, 193 F. 2d 706, certiorari denied,

RISE SERES SSSR EREE ea paiee a mem a 23, 30

Mannerfrid v. United ‘States, 200 F. 2d 730, certiorari

denied, 345 U. S. 018. ....--.--------£--+----=-- 30.

Martinez, In re, 73 F. Supp. 101-_-------------- coke aes

McGrath v. Kristensen, 340 U. S. 162...:-------- 12, 29, 44

bs “ e x \

ee ee

Itt

— Casés—Conitinued | én

“Molo, In re, 107 F. Supp. 137. SSeapems hea Pee peubiteh ake gut oli 23

Moser, Petition of, 85 F. Supp. 683... ...-----/ eee 43

Moser v. United States, 341 U.S. 41.2. ------ ‘\ 30,43, 45

' Navarro v. Landon, 108 F. Supp. 922. __..-.-.-.--2- 30

Rasmussen v. Brownell, No. 399, This —— Se ears a 29

Samowich, In re, 70 F. Supp. 273. _--..-- Jo... ----- re

Schulz, Petition of, 384 Pa. 558, 121 A. af if uate |

Shaughnessy v. Pedreiro, 349 U. 6. 46.3.3... 3, 8, 14, t

Siem, In re, 284 Fed. 868, affirmed, 299 Fed. 582---- 37

United States v. Bazan, 228 F. 2d 455... .--------- : 19, 29

Urmeneta, In —. 2 a | 9 See ea

Velasquez, Petition of, 139 F. Supp. 790_._..-------- ae

Zumsteg, Petition of, 122 F. Supp. 670 oy See eee * 45

Statutes and regulations: ie |

Act of July 17, 1862, c. 201, 12 Stat. 597_____- tices 33

Act of March.3, 1863, 12 Stat. 731_-.-.:-..-------- 33

Act ot April 22; 1898, 30 Stat. 3615...___-___- sae ck ae

Act of May 18, 1917, Stat. 76__.........------+- 33

Act of July 9, 1918, 40 Stat. 885, 955_.-.....--.---- 36

Act of Feb. 11, 1931, 46.Stat. 1087___--- Pepe Cena 37

Act of June 24, 1948,.62 Stat. 604._....___-- 38, 39, 42, 43...

. Act of Jime 19, 1951 (65 Stat. 75)._..--.--------. 44°

' Immigration Act of 1917, as amended, 62 Stat. 1206,

.. 8U.S.C. (1946 ed.) (Supp. V) 155, Section 19 (ec). 46, 48

' Immigration Act of 1924, as amended by the Act of |

a 29, 1945, 59, Stat. ol, 8 U.S. c. (1946 ed.)

224 (c), Section 28 (c) MA SG RN erent ene 49

Enienientia and Nationality Act of 1952, 66 Stat. 169,

242, 280,8 U.S.C. 1101 (a) (19), 1426, 1101 fn.:

gg kl ee ee open Fe

Mee ot Ne ears 46

~ See. 315 (a)(b)-_-_----- ag 19, 29, 42, 44, 45, 49

ee ee sn a scl dadeneeiseseaematon 6, 50

Nationality Act of 1940, Sec. 504, 54 Stat. 1137, 1172_ 45

Selective Trathing and Service Act of 1940, 54 Stat.

885, as amended, 50 U.S. C..App. (1946 ed.) 303 (a),

“See. 3 (a).....- 8,.9,°10, 11, 13, 17, 24, 26, 42,.44,

Universal Military. Training and Service Act, Section —

eS eee 2a lee See PE aera __ 39, 40

i F. R. 2087; effective Mar. r6, oceans 18, 30-31 .

Eso kee Ae (4

Mie et ov ‘ , ie an :

me athe

ae ad

Be OO are gee A ee IV :

Statutes and regulations—Continued . hoe ~—

+» Selective Service Regulations:

Sec. 622.43, effective March 16, 1942,°7 F. R.

, oe PRR BG ARTE er Reet aes 18, 30-31

« Sec. 622.43, as revised, effective October 1, youll

| (32 C. F. R. (1938 ed., 1943 Supp.)) 622.43

ei & | (ees Sasa 31

ee ee PRATER ee Seay eC es 31

res Sec. 623.61-.------.-----4 i aabaa a Aa ee te kn 31

"Miscellaneous: aes WW a

CS i oink navn keseanadcuerss sae 33 J

(Fe aa SE Rg a> eeanseescarascncsos ON ER

- 62 Cong. Globe 991-993, 997-1002, 1217_...--.____. ae

_ 62 Cong Globe 1001. --- - eeaes Gupekdeecs wh re 33

56 Cong. Rec. 4854-_- -.- -- Sea ad eae Wwe co 34

ee a ere Cah Fee agit 34°

56 Cong. Rec, 4857-4858... .-...--/.:--------.,-- 34

56 Cortg. Rec. 8249... - ----- ME EL Meee. alta 35

56 Gong. Rec. 8415-8419... .-....----2--:-----2-- * 88

i. 56 Gong. Rec. pene ele pts arate ON ge

“ OF Cie, ee wo ew see 8. oe os

-fitte.- 87 Cong. Rec. 9905... .--.-.----- eee 29

Pes | ee en Erne, =

ee Seen rer ere tee ea,

97 Cong. Ree. 6253 - fc or mee ete 40)

H.<R: 2379, 82d Cong., 1Gen-...° <3. pickets 43°

Hearings of House Committee on Military Affairs on

S. J. Res. No. -84, 65th Cong., Ist Sess., pp. 4,10... 34

Hearings, House Committee on Military ‘Affairs on .

HL. R. 6215, 77th Cong., 1st Sess., Dec. 13, 1941, .

OU Pe, ere er) eer ee ee a ia

Hearings, Sen. Committee on Military Affairs on S. .

4164, 76th sence July 3, 5; 10-12, 1940,

p: 357 cause kak in ain Siren an aes = ie arwgs = => 0 ae

- Cong., ist Seab., on S. 2126, Dee. 15

pp7 1, 46, 51, 58__.--- cerhpdtecnthveneeokants See

_-. Rep. No. 342, 65th Cong., 2d Sess., , pp. 2- _ betta 84

H. Rep. No. 763, 65th Cong:, 2d Sess., p. 5. --__- a ae

H. Rep. No. 910, 71st Cong., 2d Sess... ..-.-.-:-.- 45

H. Rep. No. 1508, 77th Cong., Ist Sess., pp. 4, 6... 18, 28

H. Rep. No. 346, 79th Cong., Ist Sess---- 0 © 88

meres . Bs eae : ‘s nag

Miscellaneous—Continued ’ Stee Page

H. Rep. No. 2438, sath Cong., 2d Sess., PP: 44-45... 39

H. Rep. No. 535, 82d Cong., Ist Sess_- ere 40

3 Hackworth, Digest of International Baie... s usa. . 33, 34

_ Immigration. ‘and Naturalization Service, interprete-

EE Br CE Be BOE ie hatin case evn gwewee 45

‘Local Board Memorandum No. 112 , Amendment of. 5,20

4 Moore, Digest of International lew... prt e are 3X

S. Rep. No. 923, 71st Cong., 2d Sess. __-...-.---- +45

. 8. 1987, Fr Come., 1 Gems. -x .. ... 5 one Prot 26

S. Rep. No. 915, 77th Cong..,. Ist Sess., os aeeees 9%, 18, 28-29

S. 3485, Siet Cong., lot Sams.:\.......-,----- 2-5

S. 716, 82d oe matt Cert pute — 43

S. Rep. No. 1268, 80th Cong.,2d Seas., p. 6:_...--- 39

S. Rep. No. 1515, 81st Cong./2d Sess., pp. 725, 731. 42

SQ od

ett att te Ct TT,

Snihe Segre orto fend Sines

: OcrosEr 1956 Gor,

oc No. 71 ~*~

Lu ay Comannen (Y ARBOLEDA), PETITIONER _

Vv. ;

Epwarp a SirAvGHNESSY, DISTRICT DrrE0roR OF THE

IMMIGRATION AND NATURALIZATION SERVICE AT THE

Port oF NEw YorxK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

‘APPEALS FOR THE SECOND CIRCUIT *

rae BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion ofthe Court of Appeals (R. 92-93) is

reported at 229 F. 2d 592. The opinion of the District

| Court (R. 18-22) is reported at 130 F. Supp. 30.

JURISDICTION

The sauna of the Court of “Appeals was entered

on February 6, 1956 (R. 94). The petition for a writ

‘of certiorari: was filed on April 28, 1956, and was

ted on June 11,/1956 (R. 94). The jurisdiction :

of this Court rests off 28 U. S. C. 1254 (1).

_> eo. |

" " )QUmerroms, PRESENTED

_ An alien applied for exemption from. military serv- |

~ ice as a neutral alien in 1943, under a statutory provi-

sion and by means of a selective ‘service form both of ;

which specified that such ‘‘application” would forever

debar him from ¢itizenship in thé United Stafes.. The

_ alien was not thereafter formally classified’ by his

- selective service board, but he was not called by the~

board until his country: ceased to be neutral. The —

question presented is whether he is debarred from citi-

zenship under Section 3 (a) of the Selective Training

and Service Act of 1940.’ 9

STATUTES INVOLVED

The pertinent provisions of the Selective ¥raining |

and Service Act of 1940 and the Immigration Acts of

1917 and 1924, together with analogous and further

_provisions of the, Immigration and Nationality Act of ©

+ p82, are set for thi in Appendix A, in infra, PP. 48-50.

STATEMENT _ e

Petitioner seeks reversal of the judgment of the

Court of Appeals for the Second Circuit (R. 94) af- |

firming the. judgment of the District Court for the |

Southern District of New York (R. 22-23) disthissing

his action for a declaratory judgment to declare that

he was not barred from United States citizenship and

was thus eligible for suspension of deportation, and

denymg a temporary injunction to restrain the Dis-.

1 The Government, as stated in the Brief in Opposition (pp. |

10-11), does not rely upon that aspect of the decision of the-Court |

of Appeals which holds that petitioner omitted a necessary party |

-in failing to make the Attorney General a party to the action.

See Point I, infra, p. 14.

” bees Pare

~ trict Direetor of the Immigration Service from taking

- him.into’eustody for deportation (R, 4-5).

The District Court’s dismissal of the complaint was

upon the ground that the Attorney General was a

necessary ‘party. (R._18-22). * The Court .of Appeals '

affirmed upon two grounds. First, the court, adhered

- to the view that the Attor ney Generatwas a necessary

- party where suspension of deportation, rather than a

finding of deportability, was involved (R. 92-93). See-

ondly, and independently, the court held that as a

matter of law petitioner was not entitled to the relief

he sought Since he. had ‘made application for relief

from military service and was thus debarred from be-

- coming a citizen (R. 93 * es

With respect to the issue of petitioner’s aeiliaition

for relief from inilitary service and consequent debar- _

ment from citizenship, the following facts, appearing

in the administrative, record are undisputed. » Peti-

tioner, a citizen of ‘Colombia, was admitted to the

United States for permanent residence in February.

1942 (R. 34, 56). He was emplofed as export clerk \

for Smith Kirkpatrick, New York City, and as a

translator for Union Carbide & Carbon Corporation

(R. 34-35).

He registered under the Se soiti® Training and.

Service Act in _~ (R. 56). On June 16, 1943,

being then 30 of age (R. 7, 12), he executed

Form DSS 304, ‘‘Alien’s Personal History and State-

ment”’, filling in the word ‘‘do’’ in the statement, “y

* Th@opinion of the District Court was handed down on April

5, 1955, while Shaughnessy v. Pedreiro, 349 U.S. 48, yaya

in n this Court. ;

404786—56——2

‘ x

ee _ f-

“do object to service in the land. and naval forces of the

United\States” (R. 35). The form contained the fol- |

lowing. notice: | CS Fihel pgs? i

bs A * If you are a citizen or subject of a.

neutral eountry and yot do het wish to serve

in the land or naval forces of the United § ey

".you may apply to your Local Board for an

_ plication by alien for relief from ‘military serv-

\ ice (Form 301) which, when executed by you

and filed with the Local Boards will relieve

you from the obligation to serve in the land and

“naval forces, in the United States, but will also

‘debar you from thereafter becoming a citizen of

the United States{7 F. R. 3424].

On August 26, 1943, petitioner executed Form DSS

301 (R. 35). This form bears the heading in large .

letters ‘Application by Alien for Relief from Mili-

ta eerie’ (R. wad and contains the following

ragraph (R. 80). ,

I do hereby make application to be reliéved .

. from liability for training and service in thé

land or naval forces of the United States, un-

der the Selective Training, and Service Act of

* 1940, as amended, in accordance with the act

of Congress, approved December 20, 1941. 1

understand that the making of this application

to be relieved from such liability will debar

me from becoming a citizen of ‘the United

States. I have not filed a declaration of inten-

tion to become a citizen of the United States.’

* Petitioner makes no claim, either in his petition or his brief, .

that he misunderstood the forms, but in his statement of facts’

in the petition (Pet. 7-8) he. makes two statements, which are

eliminated in his brief (Pet. Br. 5-6), implying that he discussed

. the forms with the selective service board and supposed that the

- 7?

»o) .

x , .

Subsequent to petitioner’s execution of Form 304;

on June 16, 1943, stating ‘‘I do object to service in the

_ land and naval forces”, the selective service board

' apparently*took no action to induct petitioner. or to

exempt him formally from induction ‘until J anuary

1944, after Colombia ceased ‘to be a neutral nation

‘and petitioner’s status as a neutral alien had ac-

cordingly ended. Colombia declared war on Novem-

‘ber ~ 1943 (R. 49, 80), and notice thereof was

issued ‘to local boards by the Selective Service Sys-

tem on December 20, 1943 (Amendment of Local .

Board Memorandum No. 112). Petitioner thereupon

was classified I-A (R. 32, 61).. However, upon physi- .

cal examination, petitioner was not accepted, and he

was ‘never -inducted into the armed forces A(R. 33°

61). : :

Some six years later, apparently in 1950, petitioner

hecame a citizen of Mexico (R. 78-79): On January

3; 1951, he married a United States citizen (R. 37,

74)... On April -2, 1951, he entered the United States

by: plane at Néw ‘York, stating his purpose as transit .

to Mexigo (R. 26-28). He did not continue to

| Mexic and he did-not apply for an — of the

‘temporary admission (R. 28); he was t

the iiamiigration. laws (R. 26-27).

forms were a mere means to assignment in some hypothetical ;

Col6mb hin Yontingent of the United States Army. The sugges-’

tioh was fully explored at the hearings and by the Board of Im-

ini Appeals and found untrue. The facts and findings on

this. point are summarized in Appendix B, infra, pp. 51*53.

. _

ereupon ar-

rested as’ being in the United. States in violation. of :

, | 6

At the deportation hearing-on July 31, 1951, peti-

tioner asked for the discretionary relief of suspension:

of deportation under the Immigration Act of 1917,

then in effect (R. 3, 42, 70). Petitioner’s wife, who

had accompanied him on the plane, testified that at

the time she came to-the United States. she was

pregnant and. not feeling well (R. 39). ‘She ‘and

petitioner decided to stay in.the United States beeause

she would thus be with her, family (R. 39), would

receive better medical care - than in. Mexico (R. 39),

and because the ‘child would then bea citizen of

the United States (R. 40). Petitioner testified that -

his reasons for:not going on to Mexico were “the way:

my wife feels about remaining here in the United

‘States and ~ * * IT would very much ‘like to remain

_ here; my business is here, my wife is from this coun-

try, and my relgtives—my other brothers—are moving

to this.country” (R. 44). Petitioner asserted that he.

-had not had an intention to remain here when he.

emplaned for the United States (R. 44):

The special inquiry officer, both after the initial

hearing (R. 70-72 ) and after the reopened hearing.

- 74-77), found petitioner, ‘ineligible for suspension

of ‘deportation bécause ineligible for citizenship as

a fesult of the application for relief from military

_ service.* The special inquiry officer granted peti-

* The a found that petitioner ’s deportation would meet the .

_ criterion of “serious economic detriment” *to his wife and two

children, all born in the United States (R..74), which criterion, —

rather than.“exceptional and extremely unusual hardship” (the

present. standard), was the standard under the 1917 enactment.

The 1917 law governed petitioner’s application for suspension of

deportation by’ “reason of Section 405 (a),, the aeving# clause of,

ae |

—

(

tioner . the privilege of voluntary departure, bit

petitioner continued to. live in the United States’ (R.

| O24) CaS ie |

On* appeal, the Board of Immigration ponwn

concluded (R. 86-87, 89) : ie i‘

[There i is no competent evidence to establish

that [petitioner] was not reclassified i ‘accord-

ance with Selective Service regulations appli-

cable to his case. .* * *. The fact that he was

_ealled for induction so quickly after Colombia

became a belligerent and was not troubled from -

August 26, 1943, the date he signed the Form

DSS 301, for the entiré period: that Coldmbia

yemminnd a neutral is ‘some evidence that Te .!

-received the exemption. he applied for. In

any event, it is our belief that the act of filing

the Form DSS 301 * * * created the .bar to

naturalization. The clear language of the stat- .

ute, requires this conclusion. * * *. The -stat-

ute does not. require that any act follow the

filing: of the application ‘to make the neutral

alien exempt andthe regulations to implement

the law do not so provide - CFR 622. 43,

1943 Supp.).

- [Wyheth: ror not the alien was reclassified,

] it is clear that after he had filed his applica-

tion, he could not have, been legally inducted:

‘while Columbia remained -a neutral (32 CFR

622.43° (b), supra).

the Immigr: ation’ ond Nationality Act of 1952 ieee & pp. A.

p. 50). Petitioner was then in no position to file a new appli- é

/ cation for suspension under the 1952 Act, as he did not meet the

/ minimum residence requirements, See infra, pp. 46-47.

[

Upon the final reconsideration ‘by the Board of

Immigration Appeals of its adverse ruling on Febru-

ary 17, 1955, petitioner commenced the ‘instant action

in the District -Court to xequire him to be declared:

eligible for suspension of deportation.

SUMMARY OF ARGUMENT

The government, as already ‘stated in its brief in.

opposition to certiorari: (p..10), does not rely upon

that aspect of the decision of the Court of Appeals”

which holds that the Attorney General isa necessary

party. Despite the distinction that suspension of

deportation, rather than deportation itself; is in-

volved here, the general considerations enunciated by

this Court in Shaughnessy v. Pedreiro, 349 U.S. 48, |

52-54, appear to be controlling. This will be. the

position of the gover nment in future eases.

The Court of Appeals affirmed the dismissal of

petitioner’s complaint upon the'merits as well as on

the indispensable-party issue. While the court prop-

erly rested its substantive holding on the ground

"that the statute (Section 3 (a) of the Selective Train-

ing and Service Act, App. A, infra, p: 48). imposed

debarment from citizenship upon the act of the alien

in. making application for exemption, regardless of —

-whether the alien actually received relief from serv-

ice, we suggest, | first, that this issue need not be:

reached since petitioner did actually obtain exemp-

tion. fame |

Ge.

A. Section 3 (a) of the 1940 Selective Service Act

provides that a neutral alien “shall be relieved from.

liability for training and service under this Act if,

prior to, his induction into the land or naval forces,

he has made application”’ in accordance with the regu-

lations. This language embodies no requirement that

there -be some additional administrative action for

the claimed exemption to go into effect. The self-

executing nature of the grant of é&emption, once a

proper application is- made, is confirmed by the lan-

guage. of the: Congressional reports and the regula-

tions, as well as by’ the basie purpose of affording

recognition to the objections of other nations to the

drafting of their subjects—a recognition that would ,

_ be incomplete if the grant of exemption, as distin-

quished fron the evidencing of the grant, were left

to the vagaries of. administrative discretion or tardi-

ness. In the language of S. Rep. No. 915, 77th Cong.,

Ist Sess., p. 2, petitioner was relieved by the statute ©

of liability for military service “upon making appli-

cation.” pe aie

B. In any event, petitioner received actual exemp-

tion from his board. Before he filed his Form 301 in

, August 1943, he had been subjected to the usual require-

-Ients imposed upon one considered liable to service.

After his filing of Form 301, however, the board at no

time disturbed him further until he ceased to be a neu-

tralalien. The freedom from call after he filéd his Form —

301 and thé prompt call for induction in J anuary 1944,

after he ceased to be a neutral glien, cannot reasonably

_be attributed, in light of the war-time maiipower needs

. 10

- of 1943, to anything -” the. oe, that he was

exempt. |

This relief from service was in no sense nullified

by the selective service board’s failure’to evidence it

by a fornial IV-C classification. If petitioner had

at any time felt dubious about his status, he could have

called for his classification and notice card: Con-

versely, if the board had overlooked the: exemption

\ and ealled petitioner for service, the Form 301 would

have constituted a complete bar to induction:

C. The fact that petitioner’s status: changed’ when

~ his country, Colombia, ceased to be a neutral does not

negate the fact of exemption. Petitioner knowingly

made a choice of exemption from service as against

the future possibility of citizenship. It. is that fact

of choice which Congress -Has made the basis of‘ in-

_ eligibility to citizenship.

Iil

If, however, it be assumed that petitioner was not

in fact exempted, his case must nevertheless fail, for

the pertinent provision of Section 3 (a) of the 1940

Selective Service. Act, imposes.debarment from ¢iti-

zenship upon any person ‘who makes such applica~_

tion’? (emphasis added). Petitioner pea casted was

such a person. ‘ ‘2

A. All of the pertinent hai show that, at the:

time of its enactment, Section 3 (a) made the ap- -

plication’ decisive. The statute makes no exception

for the person who fails’ to receive all or as much as

he expected. His recourse is against the administra-

tive authorities if they seek to deprive him of his

exemption, but. the stamp: remains upon him as .one

who, in a critical time, chose not to serve the. United |

States and whose undesirability as ‘a citizen’ of. the

United States has accordingly been. Goterinined hy oe.

C ye thay

A As drafted and’ here sipplicable,-§ Section 3 (a)

attached to the act of applying for @emption two

separate consequences, neither of which was condi-

tioned upon the other: exemption from seryice and a

‘’ debarment from citizenship. That is the precise way

the statute reads. And while it was not, envisaged by

the legislators,_in light of the mandatory nature of

. the statute, that either exemption or debarment would’

or could fail to oceur, there is also. legislative history

indicating that ibieceiied from citizenship was to be

-an inevitable ‘and unconditional ete wees of a

choice by an alien to reject military service. .

2. The basic rationale of the statute. is a Congres-

- sional judgment of the undesirability as a citizen of

one who would deliberately choose not to serve. in war-

time. Section 3 (a) is a recognition by the United

“States of the general privilege of certain aliens to

exemption from military service—a consistent coun-

terpart of the vigorous historical insistence by the

United States upon freedom of its own citizens from

service in foreign armies. But if the provision for

debarment were a mére device for pressuring aliens _

into service and thus a species of punishment, not to

be inflicted if the objective of obtaining military

service from the alien was achieved, such’ pressure

would. run counter—clearly though indirectly—to

the recognition of: the alien’s rights which was basic —

to Section 3 (a). The determination of who would be,

404786 —56——-3

rae

a desirable citizen is, however, ‘a wholly domestic issue.

And Congress required that determination ‘to be

made on the basis of the alien’s choice—his applica-_

tion for exemption.

3: The intent to make the application the decisive

factor is confirmed by the language of the Congressional °

reports at the time of the enactment of Section B (a),

all of which talk in terms of the request for relief

operative element. |

4. Judicial holdings on the point are rare. since the

factual situation. of applications- -inot-followed-by-ex-

emption has seldom arisen.’ But where this Court

and other courts have tangentially interpreted the

language of St Sect leg incidentally paraphras-

ing it, they too have spdKefjn terms of the applica-

s -.

tion for relief as the effective factor. E. 9., McGrath

v. gl ee 340 U. 8. 162, 172

. The contemporary administrative construction,

by oe selective service régulations, reflects the same _

view. Those regulations do not make debarment de-

pendent on administrative or board action upon the

‘application, or on a grant of the exemption.

B. The historical development of this type of legis- —

lation, before and after the enactment of Section 3 .

(a), confirms the validity of interpreting it in ac-

cordance with its literal language as making the ap-

plication for relief the decisive factor in determining

‘ eligibility for citizenship.

The early history shows the smergence of the ra-

tionale that one who would not choose to serve is not

a desirable citizen. It. also shows that when Con-

gress chooses to engraft exceptions, as it did in 1931,

it uses apt langhage for the purpose. |

Petitioner contends that Section 315 (App. A,

infra, pp. 49-50) of the 1952 Immigration and Nation-

ality Act (enacted after petitioner’s request for sus-

. pension of deportation) was intended to express the

effect of Section 3 (a) of the 1940 Act, and, thus, that.

the specific requirement of. Section 315 (a) that the

- alien also receive the exemption, if he is to be barred

from citizenship, is by implication an additional. re- -

‘quirement of Section 3 (a). Our analysis of the

1950-1952 course of this legislation indicates, 7

_ aver, that the committee expressions relied upon by

petitioner were applicable only to the earliest draft

of the 1952 Act which did not, as did the final stat-

ute, specifically refer to Section 3 (a) of the 1940

- Act. Section, 315, as finally enacted, was (in the as-

pects: pertinent to this ase) only a supplement to

Section 101 (a) (19) (App. A, infra, p. 49), which

specifically ‘attested the continued effect of Sec-

tion 3 (a) of the 1940 Act (as originally enacted) as 4

ground for ineligibility to citizenship. ‘ Moreover,

even Section 315, insofar as it may link the grant of

+ the exemption to. the application, would not: require

any evidence of grant of the exemption beyond the

factual posture of the instant ease (see Point II, - .

supra).

: IV.

The discussion of what light the 1952 legislation

may afford with respect to Section 3 (a) of the 1940 .

Act must not, in any) event, obse ure the fact that the

i r

1952 provisions, in themselves, are not operative in pe- .

titioner’s’ case. Both his application for. exemption

and his later application for suspension of deporta-

_ tion were made before the enactment of the 1952 Act.

Under the pre-1952 law, he was “able to avail himself

of the markedly easier requirements concerning the

showing of hardship in case of deportation. His ap-

plication for suspension of deportation cannot now be

- sustained upon this earlier, less stringent, basis with

respect. to showing of hardship, while judging the~

requirement of eligibility for citizenship upon a basis —

. not even enacted at the time of his application.

ARGUMENT iy cs

I, THE GOVERNMENT DOES NOT RELY UPON .THE HOLDING

OF THE COURT OF APPEALS THAT THE ATTORNEY GEN-

ERAL IS A NECESSARY -PARTY

2 The government has already advised tN Court

(Br. Opp. 10) that it does not rely upon ‘that aspect.

of the/ decision of the Cort’ of Appeals which -

holds that’ the Attorney General is a necessary party.

Petitioner seeks a declaration that he is not barred

citizens ip and is thus not statutorily ‘ineligible |

foy suspension }f deportation (R. 5-6), ‘and-an injune-

tion against his deportation CR. 6).. As we read this

_ Court’s decision in Shaughnessy v. Pedreiro, 349 U. S.

48, 52-54, the question of indispensability of parties’

‘ does.not turn upon the authority of the party, before

the court to effectuate the ultimate relief which the

alien desires but upon his authority to effectuate the

specific relief sought in the action. Thus, the Court

observed (349 U.S. at 52-54): )

_* * * Djistriet Directors are authorized. by

regulation to issue. warrants of deporta- -

tion,.* * *. The regulations purport to make ~

these decisions ‘of the District Director , final.

It seems highly appropriaté, therefore, that

the District Director charged with enforcement _

of a deportation order should represent. the’

Government’s interest. Otherwise in order to —

try his case an alien might be compelled to go

to the District of Columbia to obtain jurisdic-

tion, over the Commissioner, To impose. this

burden on an alien. about to be deported would

- be completely inconsistent with the basi¢ policy

_ of the Administrative Procedure a facili-

~ tate court review of such administrative action.

We know of no necessity for such a harsh rule.

Undoubtedly the Government's defense can’ be

adequately presented by the District Director.

/who is under thé su ipervision of the Commis-

/sioner. |

' It is argued, however, that the Commissioner

/ should be an indispensable party because a

judgment <dgainst- a District Director, alone

would not be final and binding in other immi-

gration districts. But we need not decide the

effect of such a ‘judgment. We cannot assume

_ that a decision on the merits in a court of ap-

~-peals on a question of this kind, subject to

‘ review by this Court, would be lightly disre-

garded by the immigration authorities. * * *

Our former cases have established a_ policy

under which indispensability of parties. is de-:

termined on practical considerations. * * *

die: the essence of what petitioner asks is the secalt

of the order of deportation. anid the enjoining. of the

District Director from taking petitioner into custody .

for deportation. Since the District Director is the

| ... ae

person who would execute the deportations we think

that the Court’s decision i in Shaughnessy v. Pedreiro,

__ supra, establishes the District Director as a sufficient

party. As noted in the brief in opposition, this will

be the position of the government in futtire cases.

|" qI, SINCE PETITIONER WAS.IN FACT RELIEVED FROM SERV-

ICE AS AYNEUTRAL ALIEN, HE IS INELIGIBLE FOR CITiZEN-

_ SHIP AND THEREBY I8/ALSO IN) |.{GIBLE FOR SUSPENSION -

OF DEPORTATION UNDER THE IMMIGRATION ACT OF F 19i7

(AS AMENDED)

, The Court of Appeals also affirmed the deine’

of petitioner’s complaint, irrespective of the question |

- of indispensable rties, upon the broader ground that

the complaint failed ‘to state - a proper claim. The

court deemed it unnecessary to inquire whéther the:

selective service board’s failure to call petitioner for

induction was due to petitioner’s. requéast Jor exemp-

tion as an alien, since he was within theNbar of the

_statute‘as an alien who “has miadé application” to be

relieved from military service. (R. 93). While. the

decision may be sustained. upon that ground (dincussed

infra, pp. 23-46), it is the government's position that

‘before that issue. is reached a ‘further ground is

dispositive of the c Ase, + e., that petitioner was in.

fact relieved from military service. He was: relieved

from service both (1) by the pertinent . enactment

which—self-executing and without further require-

~- ment of .any kind—provided that a neutral alien

should be relieved if he *‘made application’, and (2) .

as a matter of record, by the action of the selective’ |

‘service board in: refraining from calling ‘him for in-

duction during the time following his application

ee.

iva | 5

until he ceased to be a neutral alien and the basis |

for exemption was thus. eliminated. That the basis

for exemption subsequently ee ased’ to exist does ‘not

negate the crucial fact that for over a quarter of a year

petitioner obtained the‘exemption which he know visad

chose in preference to citizenship.

A. The Selective Training and Service Act of 1940.

and the regulations relieved petitioner from service,

irrespective of further administrative action,.

Petitioner was relieved ftom military service by the

self-executiig terms of the Selective: Training and

Service Act, and without need of any further action

by a board. The law in effect in 1943 (Selective -

_ Training and Service Act of 1940, Section 3 (a),

infra, App. A, p. 48) provided: : |

That any citizen or subject of a neutral county

. be relieved from lability for traifiing and

seRVICE unde ‘ry this Act, if, prior to his induction

into the land or naval forces, he has made ap- |

. plication to be ‘relieved from such liability in .

the manner prescribe d by and in “aceordance

With. rules and regulations prescribed by the -

_ President + * oe [ Emphasis added. |.

While the statutory provision relating to the applica-

tion specifically requires. that the application be made .

“in accordance with rules arid regulations’’, the pro-

vision granting relief from military service is, in con-

trast, subject to ho such condition. Upon the making

of a proper application, the relief becomes effective

under the Act; noerules or regulations ean prevent,

and no further. steps are necessary to, the effective-

ness: of the appheation to relieve the applicant from

service.

~~»

: \ ‘ ,

The statute’s distinction, between the making of the

application and its consequences, -with respect to rules

and regulations has.a sound basis. Administrative

need justifies the requirement of an orderly presenta-

tion of a neutral alien’s case to the authorities, but

no delay by those authorities should, in this type of:

_ exemption, ‘permit delay in the vesting of the exemp-.

tion written into the ‘law itself. Whatever tangible

recognition of the neutral’s right might later be issued

by the administrative authorities in the form of a

classification of IV-C or otherwise, the right to the -

exemption would accrue with the application (which

was in proper form).° |

; The automatic character of the exemption seems to

have been assumed in the selective service regulations

in effect in 1943. These provided that when, a neutral

alien filed his application (Form 301) he should not

nly be placed in Class IV-C but also, in language .

similar to the Act itself (7 F. R: 2087): — ) |

~ shall be’ relieved from liability for —— and

service «(i oes

-—* During the progress, in Desiialied 1941, of ne pr sroposed legis-

Jation which produced Section 3 (a), the corigreasfonal reports ..

used language consistent with a self-executed exemption :

In the case of citizens or subjects of any neutral country, =

special prpvision ig made to enable them, wpon application.

to be relieved from the liability for service * * *. [H. Rept.

No. 1508, 77th Cong., Ist. Sess., p. 4. Emphasis added. ]

* a * *

ae [A ]liens who are citizens or subjects: of a‘ neutral

country would be relieved of liabilityewpon making applica-

tion in the manner prescribed by the President oo) Te

Rep. No. 915, Tith Cong., Ist ‘Sess., p. 2. Eaaphesia added.

a \

a.”

The regulations thus appear to treat the relief from

_ liability to ‘service as something in addition to and

independent of the IV-€ classification. The IV-C

classification was to be issued, but the relief from

liability was not to be prevented or rendered ineffec-

tive by any delay or negligence of a selective service

board under the pressure of classification activities.

Had the board attempted to call petitioner for induc-

tion during the time he remained a neutral alien, he ©

would have needed to adduce only the fact of his”

making of the application to render the board power-

' less to deprive him of his exemption—regardless of

any delay in the making of the formal IV-C ¢

cation. |

_ This express effect of the ‘statutory language is ©

consistent with the general purpose “of Section 3 (a).

The United States, which has long insisted upon the

freedom of its citizens from conscription by other na-

tions, has, in its own conscription enactments, con- ;

sistently accorded some recognition to a similar claim

by citizens of other nations. See infra, pp. 26, >) ff.

It is entirely consistent with this position that the relief

of a neutral alien from military service be recognized

as SsOOR,aSs iff is properly ‘asserted, without condition-

ing the exemption on administrative discretion or

exemption by non-action.*

* The foregoing considerations were overlooked in one of the

holdings in United States v. Bazan, 228 F. 2d 455 (C. A. D. C.),:

-where the Court of Appeals based its decision under Section 315

of the Immigration and Nationality Act of 1952 (App, A, infra,

pp. 49-50) on the absence of proof of the administrative granting-~

of the exemption. The government considered the situation too

404786—56——4 : | ¥

‘i 20

| 08% gl

B. The selective service board, by-its conduct in

refraining from inducting petitioner, recognized, p t-

tioner’s relief from liability for military service,

In the face of the enactment and regulatighs, the

selective service board, as we haye just poigled jout,

would have been .powerless to. deny petitio relief

from military service or to act inconsistently with his

existing exemption. Actually, the board disclosed by

its conduct that it recognized the exemption effected

by petitioner’s filing of Form 301. The board may —

have been remiss in failing to evidence. the exemption

hy going through the formal procedure of a IV-C

classification and notice to petitioner, as provided in

the regulations. But while /the retord is silent as to

what_ problems of staffing! ‘and administration may

-. have caused the delay during at wartime summer

‘and autumn of 1943, thie record does indicate the

boaxd’s recognition of the exemption. Petitioner was

not troubled from the time he filed Form 301 until his

right to the exemption ceased with the cessation of his

status as a neutral alien.» This would. not appear to’

~ have heen inadvertent. Before August 26, 1943, when )

he made application for relief, he had-had the ample

. attention of the board with respect to the requirement

that yarious forms be completed. Conversely, after’

- the board was advised, by the Local Board Memoran-.

dum amendment issued on December 26, 1943 (No.

' 112), that Colombians were no longer neutral aliens,

petitionagreceived the prompt attention ofthe board

within the following month and was classified I-A. In

rare and special to warrant a petition for certiorari, See infra,

p. 29. :

- 0 a 21

the light of the critical state of the war in 1943 and the

drastic demand for military manpower ‘at that time, it

seems evident that petitioner was in fact relieved from

- service for at least four months, despite some possible —

delay in the mechanics of formal classification and

notice. ©@ he ie |

C. The fact that petitioner’ s status iain

changed does not negate the fact that he did obtain

exemption. wy, > ee |

Petitioner, in both his petition and brief in this

- Court, obscures the issue as to the fact of exemption -

by disregarding the change in petitioner’s status result-

"ing from Colombia’s entrance intothe war.

After stating that the selective service board -failed

to make a formal ‘classification of IV-C, petitioner

continues: ‘‘On. the- contrary, in January 1944,- the

petitioner received notice from his Bgard that ‘he had

been classified I-A * * * and he promptly. and willingly |

-appeared”’ (Pet. Br. 6, di: t: 8, 24)..' What is omitted

is the fact that petitioner coaahd to be a neutral alien on

‘November 26, 1943, when Colombia declared war and

became ° a eo-belligerent. The whole impact\of peti-

‘tioner’s recital is.thus that the selective service board,

| by classifying petitioner I-A, denied: petitioner’s ex-

emption as a neutral alien, whereas the fact is that

petitioner was not classified I-A‘i in an attempt to deny

his neutral exemption. Rather, after a period of

more than a quarter Of a year; during ‘whicli<the ex-

emption was recognized, he ceased to bé a netitral

alien—a fact which was exhaustively litigated below.

by petitioner, and. conclysively found against him in

ri 22

a special opinion of the Board of. Immigration Ap-

-peals establishing the date of Colombia’s entrance into

the war (R: 89-91). The record is indisputable: at

no time ‘After petitioner filed his application did the

‘., board call upon him or in any way deny him his

relief from military service. as a neutral alien, SO long

as he remained such an alien. ne

There need only be added the obser dation, over-

looked in a portion of petitioner’ S argument, that the

fact that petitioner was actually relieved under an

exemption is not in any sense negated by the further i:

- fact that the exemption, like virtually every exemption .

_. under the Act, ceased upon the cessation of the, fac-—

tual basis for the exemption. If one who is. exempted

.as a minister of religion should leave his'‘calling, his

‘; exemption would termindte,. but he could not. claim

that he had not received an exemption during the time |

that he was freed from service. =

Similarly, petitioner eannot be heard to sda

that he did. not get enough adyantage out of his ap-

plication. to warrant the permanent, nsequence im-

_posed upon it by Congress. Congress did not say, as it

~ eould have, that only a certain - period of freedom

from service- should be paid for by debarment from

citizenship, and not any. lesser time; it debarred all

‘aliens who claimed exemption as neutrals. Even a

small period of. freedom from service—to say noth-'

ing of petitioner’s, three or fow months—might mean

another person’s earlier entrance into service in the.

beneficiary’s place at an extremely ‘eritical period of

the war. Petitioner intelligently and knowingly chose’

respite from ‘service as: against future citizenship.

- That the respite was not as long as he may have hoped

. 23

-. does not change the fact of , choice. ‘Machado V.

McGrath, 193 F. 2d 706, ¥o9 (C. A. D. C.), certiorari |

denied, 342 U.S. 948 ; Balldster Pons v. United *tates,

920 F. 2d 399, 403-404 (C. A. 1), certiorari denied, 350

U.S. 830; Petition of Cuozzo, 935 F. 2d 184, 185 (C. A.

3); ‘In re Martinez, 73 F. Supp. 101, 109 (W. D. Pa. );

Petition of “Dweck, 106 F. Supp. 169 (E. D. N. Y.);

In ré Molo, 107 F. Supp..137, 140 (S. D. N. > # i

Petition of Velasquez, 139 F.Supp. 790, 793 (S. D.

, N.Y.). As the court said in Petition of Fatoullah, ©

616 «*#F.~. Supp. 499 (E. D. N. Y.), “it is not seen how

this Court can amend [the words of Section 3 (a)]

_by inserting or adding a provision to the effect that,

where there’ are extenuating’ circumstances [later co-

belligerence of.alien’s country, as in Ceballos’ case],

the N aturatization- Court mgy ignore the plain. provi-

_ of the law.’

< 1. DEBARMENT FROM CITIZENSHIP UNDER SECTION 3 (A)

OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940,

RESULTS FROM THE MAKING OF AN APPLICATION FOR -

RELIEF FROM MILITARY SERVICE BY THE ALIEN

It is the position of the government that, even if it

be assumed (contrary to our argument in Point I)

that petitioner was not relieved at all from military

service, he’ was nevertheless debarred from citizenship

by his act.of making application for relief from serv-

ice. . The act of application has been,.made the deci isive

factor by Congress.’ Viewed as of the time of the

enactment of Section 3. (a), the ‘pertinent considera-

tions support that view, and despite petitioner’s re-

liance upon prior and subsequent history, the history -

\ : : 24 me

does’ not ‘detract from, but rather sila the

interpretation of the statute we support, which is also

. the construction.adopted by the court below (R. 93).

A. The language, purpose, legislative history; judicial,

and administrative construction of Section 3 (a) show.

that the application for exemption is the debarring act.

1. The language. —Section - (a) of the Selective }

Training and Service Act of 1940, ‘as amended im-

mediately after the attack on Pearl Harbor-in Decem-

ber 1941, provided (App. A, infra, p. 48). s

eee {A]ny citizen. or subject of a neutral .

country shall be relieved from liability for

training and service under'this Act if * * *

he has made application to be relieved from .

such liability in the manner preseribed by and

- .in aceordance with rules and regulations pre-.

'_’ seribed by, the President, but any person who

makes such application shall thereafter be de-

barred from becoming a citizen of the United

States. *.* * [Emphasis added. ] : ,

Two consgguences of the making of the claim’ were

. thus set forth :—(1) relief from liability and (2) de-

> barment from citizenship. Neither of these conse-

querices was made conditional upon the other, or made

the. source of the other. If, for example, eligibility

for citizenship had been restored in som@jother enact-

ment, the liability to military service, in the absence

of a specific new provision, would not then have been

“imposed upon the alien, so long as he had met the |

condition in Section 3 (a) of an application for

‘exemption. | Conversely, under the Janguage ef the -

section, the. parallel | consequence of “debarment from :

citizenship stems from the claim and not from the

exemption, which is a consequence of the claim.

2. The purpose.—This interpretation accords with

the basic rationale of the statute. The impetus. for

the legislation (as shown by the historical develop-_ -

ment discussed, infra, pp. 25-28, 32 ff) is the recog-

nition by the United States and, indeed, the insistence

by the United States, that certain citizens of. one

nation could: not be conscripted by another nation.

There was need, however, to accommodate this aspect

with the troublesome consideration that aliens withir

the United States could thus, enjoy substantial. bene-

fits and prolonged residence within ‘its protected bor-

ders without choosing to contribute their services to

‘the country of their residence., The appropriate ac-

commodation which Congress developed was to recog-

nize the implications of the alien’s choice of exemp-

tion in its bearing upon any later protestations he

might make concerning his devotion to the United

‘States in a period when citizenship would be more

attractive. The basic theory of the legislation is ‘the

“Congressional “judgment that a resident alien who

would deliberately ‘choose not to serve the United

States in wartime—knowing that such a choice meant.

debarment from future citizenship—would not make

a good citizen and should not be allowed that privi-

lege. It is therefore immaterial whether or not the

alien obtained. the chosen benefit; it is the fact of

choice in the time of critical decision which deter-

mines his desirability as a citizen. Polen

5 The contemporary legislative’ history.—The 1940

selective service legislation, as originally enacted on

te — 2

_ September, 1940, indied no provision for exemp-

_ tion of aliens; it made liable to service male aliens’ of

ithe specified ages residing in the. United States who

had declared their intention to become citizens (54° .

-% Stat. 885-886, Section 3 (a)). However, there had

already been rumblings of objection, The War De-

partment, aware of the potential problem with eoun-

*. tries: -whose nationals would be drafted; siggested at .

the hearings of July 3, 1940, that provision be made,

similar ‘to the 1918 provision (discussed infra, pp.

34-36), that a declarant alien may be exempted—

| upon his making declaration withdrawin? his

intention to be te a citizen of the: United

States, which withdrawal’ shall operate and be

held to cancel his declaration of intention from

* becoming, a citizen of the United States, and

_he shall forever be debarred from becoming a

citizen of the United States * * *.° [Hearings

- - before the Sen. Committee on Military: Affairs-

on §. 4164, 76th Cong., 3d-Sess., July 3, 5, 10-12,

‘1940, p. 357. Emphasis added.] )

.* This suggestion was not adopted, but in April 1941, *

e still 7 ‘months before the attack on/Pearl Harbor, the

| Secretary of State suggested~a ‘similar provision, —

which was passed by ‘thd Senate, but not by the House

(S. 1397, 77th Cong., “Ist Sess.; 87 Cong. Ree.

5726). This ‘later provision stressed the ahen’s

act as the causative factor, supplanting the phrase

“and he shall forever be debarred”’ (emphasis added) .

with the language that a declarant alien “shall be re-

lieved. from liability”? to service if he made a state- —

“ment of withdrawal of intention “which shall beheld .

to cancel his declaration of intention to become a citi-

zen of the United States and to forever bar him from

becoming such a citizen”? (emphasis added).’

Within two days after the-attack on Pearl Har- -

bor, hearings were commenced for extending conscrip-

tion. In the proposal submitted at the outset of the

hearings, there reappeared what was substantially an

adaptation of the 1918 language (infra, p. 36),

follows (Hearings before, the House Committee on

Military Affairs, on H. R. = 77th Cong. om Sess.

Dec. 13,-1941, pp. 1-2) : : —

[A]ny citizen or Broly of a neutral countey

sliall be’ relieved from lability for traiying and

‘service under ‘this Act by making applica-

tion * :* to be relieved _from liability for

training an\l service under this Act,.and such

person s thereafter forever be debarred

from becoming a citizen of the United States

** *. [Emphasis added.J°

This language could conceivably relate ‘‘such per-

. son”? to one who was “‘relieved * * * by making appli-

™ The text, appearing at 87 Cong. Réc. 5726. was as follows:

& p . . ,

United States who has ‘declare! his intention to become a

Citizen of the United States who is registered or who is or

'. may. become liablg to registration under the provisions of

this act shall be relieved from liability to trainitig and serv-

ice thereunder if he makes a declaration’ prior to becoming

a member of the land or naval forces or within a time fixed

by the President if he is already a member of the land or

naval forces, in accordance’ with @uch regulations as the

President may prescribe, withdrawing his intention td be-

come a citizen of the United States which shall be held to ;

cancel his declaration of intention to become a citizen of the

United States and to forever ber him frém becoming: such a «

citizen.”

rovided further, That any male alien residing in thé,

cation”. The later change is accordingly significant

in providing, in the bill as.submitted by the Commit-

tee to the House.on December 15, the phrase “any

person who makes such application shall thereafter

be debarred * * *” (H. Rep. No. 1508, 77th Cong.,

1st Sess., p. 6; emphasis added.)* |

In the draft submitted at the outset of the Senate ©

‘committee hearings on December 15, 1941 (Hearings

before the Sen. Committee on Military Affairs, T7th

Cong., ist Sess., on S. 2126, Dec. 15 and 16, 1941, p.

1) the changed language already appeared, barring

“any person who makes such ‘application.’’* In both -

the ‘House and Senate reports the debarment was

specifically stated to result from ‘‘the iat of such

application’. y

® We find no discussion of the change in. the hearings them-.

selves. In the hearings held by the Senate committee (Hearings |

before the Sen. Committee on Military Affairs, 77th Cong., 1st

Sess., on S. 2126, p. 51) Captain Keesling reported, concerning

provisions on aliens but not clearly or specifically as to the instant

provision, “The House has changed. its bill completely.. The »

- House bill now is almost identical with your bill”: And s see ibid.,

p- 46. a:

ss This provision was not discussed i in the section-by-section dis-

cussion. /d., p. 58.

ing OO ne In the case of citizens or subjects of any neutral coun-

try, speci@l provision is made to enable them, upon application,

to baie relieved from. the liability for service, but the making. of

such application will debar them, from becoming. citizens of the

United States * * *. (H. Rept. No. 1508, with Cong. Ist Sess.,

p. 4. Emphasis added. ‘)

“* © * Under the bill reported by the « neien aliens would ©

‘ be liable whether or not they had declared their intention to

become citizens. However, aliens who are titizens or subjects of

a neutral country would be relieved of liability upon making

application in the manner prescribed by the President, but the

2 ke °

e -

' 4, Judicial opinions.—There are very few judicial .

decisions on the issue because the factual situation

almost never arises. As pointed out supra, pp. 17-20, —

_ it is almost a paradox to say that an alien has not been

afforded relief from military service when the legis-

lation itself makes that relief mandatory and immedi-

ately -effective. Only where a rare administrative

accident, such as a failure to. go through the mechanics

"of classification, obscures the actual grant of relief

(as in this case), or where the issue is raised on plead-

. ings which leave the question of. actual relief open, as

in Rasmussen v. Brownell, now pending on petition —

for a wrif’ of certiorari No. 399, this Term, has the

point arisen.’

‘However, it is significant that, i in dealing with thier:

issues under the statute, the courts, although not called.

upon to decide’ the direct. issue, have spoken of. the

debarment in terms of the application or, claim, and

not .of the actual reife f accorded. Thus, this Court

. said in M cGrath v. K ristensen, 340.U. S. 162, 172:

making of such application will debar them from ever -becoming |

citizens of the United States * * *.” (S. Rept. No. 915, 77th ©

_ Cong., 1st Sess., p. Dy Emphasis adiled.) ’

* On the floor of tlte Senate, Chairman Reynolds eet the

identical Janguage of the last sentence of the above Senate report

(87 Cong. Rec. 9905).

" As noted supra, fn. 6, p. 19, in ‘United States v. Bazan, 228 F.

2d 455 (C@. A. D.C.), involving a construction of Section 315 of the

Immigration and Nationality Act of 1952 (see infra, pp. 49-50), -

the fact of relief from service had not been litigated: before the

District Couft and the Court of Appeals based its decision on the

absence of proof. Petition, of § € ‘aputo, 118 F. Supp. 870 (E. D.

N. Y.), alsosnterpreting Section 315,anvolved an enemy alien nat

covered by Section 3 (a) of the 1940 apietiie Service Act. 3

- Nimes ,

| 30

By the terms of the statute, that bar only comes

into existence when an alien resident liable for

service asks to be relieved. [Emphasis added.]

And in Moser v. United States, 341 U. 8S. 41, 45, the

‘Court stated that Section 3 (a) “imposed the condi-

tion that neutral aliens residing here who claimed —

such immunity would be. debarred from citizenship’’

193 F. 2d 706, 710 (C. A, D. C.), certiorari denied,

342 U. S. 948: ‘‘any person who asks for this relief .

_is thereafter debarred” (emphasis added) ; Manner-

frid v. United States, 200 F. 2d 730, 731 (C. A. 2),

certiorari denied, 345'U.'S. 918: ‘the would be -de-

barred from ever becoming a citizen, if he ever claimed

exemption ‘from military service as he did”’, and ‘‘the ~

forfeiture * * * that the Act imposes upon a-claim

for exemption’’ (emphasis added) ; Navarro v. Lan- -

don, 108 F..Supp. 922, 925 (S. D. Cal.) : “his appléca-

tion created the bar’’ (emphasis added). .

5. The contemporary administrative construction —

‘The: contemporary administrative construction was.

also in accord with the literal language of the statute.

- The regulations of. the Selective Service System pro-

vided that when an alien filed an application © for

exemption he should be placed in Class IV-C, but also

~ stated, in independent phrases not conditional upon —

the IV-C classification, that-upon stich filing the alien

“should be relieved from liability and be debarred

from becoming a citizen.” See supra, pp. 18-19. Simi-

% Section 622.48 * * * (b) When an alien registrant who is a

citizen or subject of a neutral country * * * files [Form 301] * *-*

he shall be placed in Class L[¥C; shall be relieved from liability

for training and service * * *},and shall thereafter be debarred

o7 . BS a x,

(emphasis added). See -also, Machado v. McGrath,

larly, Sections 623.1 and 623.61 of these regulations

provided generally for prompt classification and mail-

ing of notice thereof, without any attempt to provide

that fulfillment of these responsibilities of the selec-.

tive service board was a prerequisite ta the operation .

of the provision of the statute making the application

_ a permanent debarment from citizenship. Indeed, in

1943, probably because of the controversies concerning

alien treaty exemptions between the United States and

various countries, Section 622.43 was revised to delete

the language incorporating the statutory provisions

concerning relief from liability and concerning debar-——

ment and to deal only, with the Selective Service Sys-

tem’s function of providing a IV-C classification.”

The official forms, signed by the alien, were har-

monious with the contemporary interpretation. Form

304 explicitly warned the alien that his application

for relief “‘will also debar you from thereafter be-

coming a citizen” (supra, p. 4), and Form 301 stated

“I mnderst d that the making. of this application.

ea * * will debar me” (supra, p. 4; emphasis added).

‘from becoming a citizen of the United States.” (7 F. R. 2087,

‘effective Mar. 16, 1942.) . ..

It is noteworthy that the word “thereafter,” by reason of the .

complete separation of the phitases by semi-colons, relates only. to

‘the time of the alien's filing of his application and not to the 1V-C

classification or relief from liability.

8 Section 622.43, as revised: “(a) In Class 1V-C.shall be placed

any registrant: * * (2) Who is an alien and ‘who is a citizen or_

subject of a neutral country * .* * and who * * * -files with his

. local board an Application by Alien: for. Relief from Military

“Service ¢Form 301) ** *." (32. C. F. R. [1938 ed., 1943 Supp. ).

* 629.43: 8 F. R. 13672, effective Oct. 1, 1943.) dts

al s

, 32

-In short, all the’ pertinent factors bearing . directly

_ on the 1940-1941 legislation here involved ‘support ‘the -

unconditional nature and operation of the. statutory

language that “any person who makes such application

shall thereafter *be debarred’’ (emphasis added). ~

' Bi The historical development of this type of legisla-.

tion shows that the bar to citizenship stems. from |

the claim to exemption. — |

As against the explicit wording and contemporary

history “of the 1940 Act (as amended), petitioner’

adduces only certain utterances in opinions involv-

ing other enactments ( discussed, infra, p. 36, fn. 17),.

the random phrasing of a very general congressional

report written long after,“in. 1950 (discussed, in its”

chronologicak position infra; pp. 40-43), and the

asserted effect of a provision of the 1952 immi-

gration legislation (discussed, infra, p. 40 ff). Viewed

_in .historical, context, none of these factors de-

traets from the fore ‘eof the more pertinent, con-

siderations. discussed, above, which support our inter-

pretation of Section a (a) in aceord with its literal

terms. i is Sa

1. The siecle: prior to 1940.~The early develop-

ment of the debarment from citizenship of. ahens

claiming exemption from imnilitary service - discloses

that its fundamertal rationale, as already noted

(supra, pp. 19, 25), is a Congressional judgme nt as te

their undesirability as citizens. tt

While there was early recognition and, indeed,-in- -

sistence that certain aliens could: not properly be sub-

ies | vs a

ject to’ military service," pane Civil War, in.

light of the privileges then enjoyed by some aliens in

the United States including éven the right to. vote,

there were countervailing arguments | for military.

service bx aliens. Legislation requiring such service,

_ passed in- 1862, was applied to declarant aliens and

‘aliens who had voted, . and, later, to ‘all aliens.” In

the course of debate on that legislation, Senator Doo-

little argued that an alien who had resided in. the

United States and had pleaded exemption as an alten,

“is not: proving that he-is a good citizen ‘arid attached

to the Constitution.” 62 Cong. Globe 993. And Sen-

ator Cowan urged the drafting of aliens as “the very”

best mode of testing them’’ (see 62 Cong. Globe 1001)."

The conscription law of 1898 (30 Stat. 361) and, the 3

first 1917 law ¢40 Stat. 76, 78) again made declarant

4 See the ghecrvations af President Madison in 1804 and. of

Secretary of State, Seward on the eve of the ¢ ‘wil War, mi 1862 °

A4 Moore, Digest of International Lav 52-3 53:62 ong. Globe 991).

Cf. Secretary of State Fish in 1869 and an assistant (Moore, op.

cit, 5t-59) with Secretaries of State Bayard and Blaine (4 Moore,

op. cit. 54, 60). And see Moore, op. cit. a; 3 Hackworth, ‘Digest

of International Law, 599).

“8 Act of July 17, 1862, ¢. 201, 12 1 0 199 i of March 3, 1863,

12 Stat. 731: see 62 Cong. Globe 991-93; ONT —1002, 12h: 4

Moore, op. eit: 53-4. /

* The actual treatment of aliens during the C ivil War did not™

follow a clear pattern, for while the President proclaimed that

- no.detlarant alien whoshad voted or who was found in the United

States within 65 days would be exempted (13 Stat. 732), i later

appeared, in the words of Secretary of State Bayard, that “there

[ was] not ® single instance in whiel +h an alien was held to military

duty when his Government catled for his release” (4 Moore, op. c’t.

54-56: and see in accord and contra, 4 Moore, op. cit. 58, 60).

t é ~

ro)

al liable to military service but it was afterward

admitted ‘that the 1917 cen its rights

of aliens, and that government ents had not

directed attention to the fact of such violation when

the bill.was being enacted. 56 Cong. Rec. 4855 .(Con-

gressman Dent, April 9, 1918) ; Hearings of House

. ‘Committee on Military Affairs on S. J. Res. No. 84,

65th. Cong., Ist Sess., pp. 4, 10 -( cretary of State

Lansing, September 26, 1917). iplomatic protests

ensued (3: Hackworth, op. cit.,

10), result-

ing in an informal procedure for telease of aliens

(Letter of. Secretary of State, February 14, ; 1918,

appearing in H. Rep. No. 342, 65th Cong., 2d Sess.,

pp. 2-3; 56 Cong. Rec. 4857-4858; 3 Hackworth,. op.

. -8t. 603-605). The War Department and the Depart)

ment of State suggested amendment of the 1917, Act,

in a form exempting neutral aliens without attaching

any consequerices ‘to the exémption. H. Rep. 342,

65th Cong., 2d Sess., p. 3. On April 9, 1918, in the

debate on ‘the proposed amendment, a letter of Presi-

dent Wilson was read stating, “inter alia, “Whatever

the general mérits, of the question, if we- could con-

sider ourselves absalutely free with regard. to it, we

are unfortunately not free but are bound by definite.

treaty obligations + a oe Cong. Rec. 4854).

On June 25, 1918, Senator Hitchcock introduced an

amendment with a proviso that “If such a claim to

| ammunity [sic] is asserted, it shall be recognized and -

shall operate automiatically as a withdrawal and. can-

cellation of the declaration to become an American —

’, .eitizen, and the individiial shall forever be debarred. .

_ from becoming one.’’. Senator Hitchcock supported |

s : . e

the ameridment oir the ground that in drafting” neu-

trals ‘‘we are violating , treaties and to some extent

are violating international comity’’;. that the War

- Department: construed the then Act of Congress as

“repealing the treaties’ although the State Depart-_

ment was ‘tunable to take that view of it * * *”’;

that debarment from future naturalization ‘will re-

- stfain men from: setting up the claim’ and was in-

cluded to prevent ‘‘a good -deal of ill feeling and a

‘good deal of indignation on the part of American ~

citizens whose sons are subjected to the draft to have

their neighbors released from the draft and to stay at

home to do the voting while their sons go to the war.’’

56 Cong. Rec. 8249. 7

While a part of thase remarks indicated a purpose

to force aliens into service, contrary to the general

_ objective of recognizing their right to be ‘free of :

-service, the reference to the indignation of citizens

suggests the purpose of imposing the debarment as a

criterion of who would constitute a desirable citizen.

In the course of the debate, a number. of Senators

insisted that the. mere withdrawal of the declaration

‘ would ‘not, be sufficient—that the withdrawing alien

should be® debarred from citizenship. While. ‘there .

|. were references to the possible effect of inducing

. military service by aliens, the. principal. emphasis was

on the undesirability of exempt aliens as voters, and

on the theory that the criteria of who should be a

desirable Ameriéan citizen could not be prescribed in

treaties with foreign countries. 56 Cong. Ree. 8415-

8419: Directly related to the criterion-of-citizenship

basis, rather . than ‘the punishment aspect, was the

: -

° 8 ; ; e a . { .

| |

- argument of Senator Lodge, “No country would sub-

mit for one moment to an agreement with another af-

fecting the conditions on which a foreigner could:

become a citizen.”” -56 Cong. Ree. 8485.

vided that a: neutral declarant alien (40 Stat.. -_

955 )

} shall be relieved fom liability to. military

\ serv ice upon his making a declaration, in ac-

eordance with such regulations as the President.

may prescribe, withdrawing -his intention to

become a citizen of the United States, which

shal operate and be held to cancel his declara-

tion of intention to become an American citizen,

and he shall forever be debarred from becoming

a citizen of the United States. .

This statute containing the language and he shall for-

¢ .2 ‘ 7

ever be debarred,’’ was not as conclusive of the ques-

tion whether actual relief from liability was a condi-

tion to debarment as the instant,1941 language that

“any .person who makes such application’’ . (supra,

p. 24) shall -be debarred. « Nevertheless, the statute —

was reported by Congressional committees as provid-

ing that a neutral declarant alien “shall be relieved

from ijiability to service by withdrawing his declara-

tion, which shall forever.debar him’’ (H. Rep. No.

763, 65th Cong., 2d. Sess., p, 5; emphasis added)."

_ Petitioner relies (Pet. Br..\10) upon some language of a,

{924 District Court opinion, /n re Gustavson, 300. Fed. 251( S. D..

Cal.), assumed by petitioner to impose debarment only as a pen-_

alty where relief from service is proved. It is'the holding of

the case, however, that the alien there involved must be denied’

naturalization upon the broader ground that he had demonstrated.

lack of attachment to the Constitution (300 Fed. at 251). The

The iat net as enacted on July 9, 1918, vt.

A modifying enactment, 13 years later, provided

that no debarment should. ensue if the ‘‘withdrawal

[of the ‘intention: to become a citizen’’] (and the |

application therefor) and discharge took place after &

November ‘1, 1918 [Armistice Day)” (Act of Feb. ‘UH,

p31, 46 Stat. 1087). This modification is significant. ;

because it refers to withdrawal (by the alien) and dis-

charge ( by the government), both of which had to

_oceur after ‘the armistice. To that extent, the wo Pe

ing demonstrates that when the Congress. wishes the

government’s action upon an alien’s act:to be controll- -

ing, rather than the alien’s act (as petitioner here

‘urges that the board’s IV-C classification should con-

trol rather than his own application for exemption),

proper language i is available>. In the 1941. Act Con-

judge's statément that the intention of. the 1918’ Act was “to fix

a penalty where an alien declarant was relieved. from military —

service,” was dji¢tum which, particu: irly in view of the different

wording of the 1918 Act, is not authoritative for the construction

of the 1941 Ack.

Petitioner places similar reliance on Jn re Siem, 284 Fed. 868

(D. Mont.), affirmed, 299 Fed. 582 (C. A.9). This case, like Gus-

tavson,.supra, dealt only with the question of whether lack of

* attachment to the Constitution was demonstrated. The alien

apparently registered, claimed exemption as an alien in 1917, be-

‘fore the 1918 enactment granting exemption and imposing debar-

ment, and was classified-I-A (although thereafter rejected as

unfit).’ See 284 Fed. at 868, 299 Fed. at 582. Instead of a with-

drawal. of declaration of intention, the alien apparently. pre-

sented only a “mild itisistence upon the right of exemption” (28+

’ Fed. at 872: and see 299 Fed. at 584: “fA ]n alien may be relieved

from military service by withdrawing his declaration of inten-

tion, in which event he is forever barred * * *. | If Congress in-

tended that ‘thé same result should follow pee the mere claim °

of an exemption given by law, it would have so declared.”) The

decision is accordingly inapposite and, indeed, speaks contrary

to petitioner's position. —

mo,

ew did not choose to state that a person who ob-

tained a ‘fdischarge’’ or a particular IV-C classifica-

tion should be~ debarred, but rather imposed the

debarment: ‘yypon “‘any person who makés such appli-

cation’’. In the light of-the 1931 statute, this cannot ts

be dismissed as mere inadvertence. a

: The pertod . subsequent to 1941 and prior to the

1952" immigration legislation. —The events since 1941.

confirm the effect of Section 3 (a) as imposing debar- .

- ment upon. the alien’s act of: choosing exemption, with-

out regard to whether he was actually relieved from

. Service. -\

~The words of legislators and ‘administrators con-

tinued to suggest the decisiveness of the alien’s appli- .

cation. When, in October 1945, the immigration law

was amended to make specific reference, in the defini:

tion of “‘ineligible for citizenship”, to those debarred

under Section 3 (a) of the selective service legislation, -

the ‘comniittee — quoted this letter of Attorney |

7 General Biddle: ae | |

- -Seetion 3 a" * Y sewvlitoe that any citizen

or subject of a neutral country shall be relieved —

from liability and training under the act if he

makes application * * *, but any person who

does* so is thereafter debarred * * *. [H.

Rep. No. 346, 79th Cong., 1st Sess., p. 2.]

In 1948, when -a new selective service law was_

enacted, Section 4 (a) made a change by providing |

for debarment of any alien, not otherwise deferable or

exempt, who made application for relief from military.

‘service, but again provided that ‘‘any person who

makes such application shall threafter be debarred

fe stated:

eer Fe ee,

aes ; 39 \ *y ; io?

from becoming a citizen of the United States. ”’ (Em-

phasis added). Again, .the Congressional reports

referred to the application as the decisive act. The

Senate report (No.. 1268, 80th Cong., 2d Sess., Ps 6)

*#* In the event [the allen] makes such

an. application, he is thereafter barred * * *;

| (Emphasis added ) |

And the; conférence report characterized the debar-

ment as applying to the person who ‘sought relief”,

again without reference to any evidence of’ actual a

relief from service.” :

When language similar to the {instant wording,

rather than that of the 1948 Act, was adopted in 1951

in Section 4 (a) of the Universal Military. Training

8 The pertinent language, 62 Stat. 604, is‘as follows: “* * *

Any citizen of a foreign: country, who is not deferable or exempt

from training and service under the provisions of this title (other

,than this subsection), shall be relieved from liability for training

and service under this title if, prior to his induction into the armed -

forces, he has made application tobe relieved from such liability

‘ inthe manner prescribed by and in accordance with rules and regu-

“lations prescribed by the President; but any person who makes

such application shall thereafter be debarred from becoming a

citizen of the United States. * * *” :

* The statement is as follows: “The Senate bill provided that

citizens of a foreign country should be relieved tke Gabiicy for

training and service upon application for such relief, Mut provided

that any person who sought relief should thereafter be debarred

from becoming a citizen of the United States. The House amend-

ment excluded from liability for service those aliens who have not

declared their intentions to become citizens of the United States.

The conference agreement adopts the’ provisions of the Senate

bill with respect to liability for, training and service of aliens but

insuring that. properly deferable aliens may be relieved from

liability for induction without debarment*from citizenship.” (HH.

Rep. No. 2438, 80th Cong., 2d Sess., pp. es. Emphasis added. )

- 40

ond’ Service Act (65 Stat. 75), it was also characterized

as making the application. itself the operative factor.

The conference report stated: “[I]n the event that

such persons request release from service, they will be

-debarred”” (H. Rep. No. 535, 82d Cong., Ist Sess.,

appearing at. 97 Cong.. Ree. 6249); and Chairman

’ Vinson said, ‘‘imnless fhey request release from service,

in which case they will forever be debarred from citi-

_ zenship.’ ”” 97 Cong. Ree. 6253.” :

3. The Immigration and Nationality Act of 1952.—

Petitioner relies heavily on two remarks of a com-

mittee report in 1950 (Pet. Br. 11-12), made at'an early

stage in the’ long course of the legislation which be- -

eame the Immigration arid Nationality Act of 1952,

to show that our view of debarment is incorrect.

Those remarks, in context, do not. have the signifi-

cance attributed to them by petitioner.

‘Fhe. Committee’ s remarks. concern a draft of Sec-

. tion 315 which was not enacted in that form; the pro-

posed section would have provided : |

(a). Any alien who applies, or has applied a

- exemption or discharge from training or serv-- -

iee in the armed: forces of the United States

_ solely on the ground that he is an alien, and is. :

“ Also , gnificant is the amendment offered by Representative

Sadlak, seeking to add the following to the debarring language:

“Any citizen of a foreign country who, notwithstanding the relief

from liability for training and service under this title afforded him

by the preceding sentence, shall have enlisted in or shall have been |

"inducted into the Arjhed Forces of the United States pursuant, to

the provisions of this title, shall be eligible for full and immediate

United States ¢ itizenship 1 in accordance with the provisions of sec-

Condy of thixtitte’ [also offered in amendment].

The anendment was rejected. — (97 Cong. Ree. 3909.) |

or. Was relieved or discharged from such train-

ing or service ‘solely on such ground, shall be

: States.

(b) The recor de of the Selective Service Sys-

tem or of the National Military Establish-

ment shall be conclusive as to whether an alien

was relieved or disc harged frum such liability

for training or service solely beeause he was

-anatlien. [S. 3455, 81st Cong., 2d Ses:., April

~ 20, 1950; then Section 314; emphasis added].

_ It should also be noted that the bill in whieh this see-

‘tion was included did not provide a reference, as does

Section 101 (a) (19) of the final enactment (App. A,

infra, p. 49), to prior selective service legislation, in

this field as pait of the definition of ‘ineligible to

eitizenship.’* It is in this context that the ‘refhatks

reled upon by petitioner must be read. S. Rep. No..

1515, 81st Cong., 2d Session, stated at p. 725:

Another: group of persons who are perma-

nently barred from applying for citizenship is

that group covered by the provisions of section

‘4 (a) of the Selective Service Act of 1948.

-This section provides .that an alien who, not

being deferrable or exempt from training and

‘service, applies for relief from such training

and service .prior to his induetion ts forever

‘barred from applying for naturalization, The

subcommittee feels that this provision is in line»

| Act and avill recommend that these provisions

" De incorporated in the proposed bill so that all

7 requirements for naturalization may be found ~

in one Act. However, the subcommittee con-—

siders that such exemption should be applied

barred from becoming a citizen of, the: United:

for and granted solely on the grounds. of alien.

age,.and is recommending accordingly y. ee.

‘phasis added. ]

And at p. 731:

The subcommittee recommends enactment

into the naturalization law of the essential pro-

_Visions of section 4 (a) of the Selective Service

Act of. 1948 providing that an alien whe, not

being deferable or exempt from training and

service, applies for relief from such training

and service on the grounds of his alienage prior

‘to his induction shall be forever barred from

applying for naturalization,» payne

added.] |

Petitioner seizes upon the phrase (in the first quo- —

tation from S. Rep. 1515) that ‘‘all requirements for

naturalization may be found in one Act’’—as indi-

eating that after 1952 the new legislation would alone

.control, regardless of the prior provisions—without .

considering the fact that later the bill was changed. to’

refer specifically to prior selective service legislation.

“Moreover,- petitioner’s impli¢ation that the present

Section 315 of the 1952 Act (App. A, infra, pp. 49-50) —

was the subject of the committee’s remarks fails to

note (1) that the committee was speaking of Section

4 (a) of the 1948 Selective Service Act as expressing

the “general concept?’ and was not. interpreting Sec-

tion 3 (a) of the 1946 Act, and (2) that the eom-

mittee, in summarizing Section 4 (a) (and thus the

general concept of former law) mentioned only the

application for relief and said nothing of a require- .

ment of -further grant of the relief. Also, as noted

«_’

) | 43 han

- supra, while Section 4 (a) of. the 1948 Act was simi-

lar to Section 3 (a) of the 1940 Act (as amended) in

imposing permanent disbarment from citizenship, it

- was not, as contended by petitioner (Pet. Br. 12), a

_ “re-enactment in haec verbaeé of Section 3 (a),” for

| Section 4 (a) contained language, not present in the

1941 statute, making its provisions applicable only to

> an alien *‘who is not deferable or exempt from train-

ing and service-under the provisions of this title (other

than this subsection) **( Act of June 24, 1948, 62 Stat.

In combination, the language of the proposed bill

. referring to deferments solely on grounds of alienage,” —

plus the omission of a — to Section 3 (a).in

the definition of ineligibility to ciitzenship, plus the

reference in the reports only to the 1948 Selective

Service Agt, would have created problems as .to

whether the bar éf Section 3 (a) of the 1940 Selective

Service Act, as amended, survived the.1952 Act. Pre-

sumably to foreclose’ that possibility in the act that

finally emerged (in contrast with. the bill to which 8.

Rep. 1515 w as addressed), there was included a speci-

fic reference to debarment under Section 3 (a) of the

1940 Act, as well as to Section 4 (a) of the un

Act, in the definition of “ineligible to citizenship” .

S. 716 and H. R. 2379, 82d Cong., Ist .Sess., Hind

duced, respectively, on January 29, and February 5,

“In the preceding July 1949, Moser, a Swiss alidf? had been up-

held in the contention that he had not applied forexemption under

Section 3 (a) of the 1940 Act solely on the grounds of alienage

but upon the ground of a treaty between. Switzerland and the

United States concerning aliens. Pétition of Moser, 85 F. Supp.

683 (E. DN. Y.). See Moser v. United States, 341 U.S. 41

44 .

1951, and which became the 1952 Act. Moreover, —

there was omitted from the final draft of aaa! 315

(a) the word “solely’’.”

age of S. Rep. 1515 on which petitioner relies has no

significance to the question here at issue, but that

Section 315 (a), whatever its meaning, does not serve

to change the effect of ‘debarment already accom-

plished under Section 3 (a). of the Seleetive Training -

anid Service Act of -1940, as amended. As pertinent.

to the present case, Section 315 (a), as finally enacted,

must be viewed simply as a provision coordinate with.

Section 101 (a) (19) (App. A, infra, p. 49)—defining

“ineligible to citizenship’’—and supplementing it by -

| covering any exemptions .not covered by the recogni-

tion of the earlier Acts in Section 101 (a) (19).”

* A parallel change was made in selective service legislation.

The. Act of June 19, 1951' (65 Stat. 75), oniitted from the new

Section 4 (a) of the Universal Military Training: and Service

Act, the language of the 1948 Act, “who is not deferable or exempt

from training and service under the provisions of this title (other

than this subsection)”, and returned to the language of Section 3

(a) of the 1940 Act. The 1951 wording provided that an alien,

of the specified age,.not exempt from registration, who remained

in the United States in a status other than that of a permanent ~

resident for over one year “sltall be relieved fiom liability for

training and service under this title if, prior to his induction into

the Armed. Forces he has made application to be relieved from

such liability in the manner prescribed by and in accordance-with

rules and regulations prescribed by the President; but any alien

who makes such application shall thereafter be debarred from —

becoming a citizen of ‘the United States” (emphasis added). 65

- Stat. 75. The same provision appeared. with srespect >f0 service

in the National Security Training Corps. : . te

2) There were a number of aréas in which this residual cov werage

could well have been thoiight necessary. For example, McGrath

v. Kristensen, 340 U.S. 162. held that the making of applieation

ais *

The operative effect of Section 315 (a) itself is not

in issue here since petitioner does not seek naturaliza-

tion.~ As we point out infra, pp. 4647, petitioner

cannot ely. yipon it as “establishing his eligibility to.

citizenship in: this. case since his application(for sus-

- pension .of deportation is based ‘on, the pre-1952 Act,

and must be determined by his eligibility to citizen-

‘ “by one who was not liable for service at the time (and therefore

Was not relieved from service) was not a bar to’ citizenship; the

coupling of .the application with relief, in Section 315 (a), may

well have been intended to establish the same rule. Also the

enduring nature of the 1918 debarment was expressly recognized

by the reports of the congressional committees which considered

the 1931 legislafion (supra; p. 37; and see H. Rep. 910, S. Rep.

923, 71st Cong., 2d Sess.). While Congress, in 1940 (Sec-

tion 504 of the Nationality Act, 54 Stat. 1137, 1172), specifically

‘attempted to repeal the 1918 debarment (Immigration and

Naturalization Service, Interpretation No. 1, June 5; 1941), lower

courts were divided:as to whether the’ 1940 repealer’ terminated

the disqualification. See Jn re Urmeneta, 42 F. Supp. 138 (E. D:

Wis.) and /n re Samowich, 70 F. Supp. 273 (W. D. Wash.). De-

barment might thus be assured only under Section 315 (a).

The drafters of: the legislation could also ‘have had in mind

enemy aliens who obtained’ exemption by making objection to

service in awareness of the policy of the armed forces to “4

objecting aliens. See Petition of Caputo, 118 F. Supp. 870 (E. D

N. Y.). The subsequent rejection of this view does not dispel its

possible purpose. Petition of Zumsteg, 122 F. Supp. 670 (S. D.

N. Y.); Petition of Schulz, 384 Pa. 558; 121 A. 2d 164, 166. See

the vigorous dissenting opinion of Jadeu Musnranno and Bell

in Schulz, supra, 384 Pa., 121 A 2d at 167, urging Section 315 (a).

as applicable in that case.

Similarly, the situation presented by Moser v. U ‘nited States,

341 U.S. 41, of a person claiming exemption as an alien under —

‘treaty right’. might have been thought within the purview of

Section 315, although later a court held to the contrary, Petition

of Beriné, 112 F. Supp. 837 (E. D. N. Y.). The: fact. that Sec-

clause shows an intent to cover broadly exempt aliens, otherwise

free from disbarment.

ship under the pre-{952-statutes.. It is sufficient here

to point eut that, as we have shown, there is.nothing |

in the language or the legislative history of Section

*315 (a) w hich ‘detracts front the clear language and

full history. of Section, 3. (a) of the 1940 Act,’ as

amended, and which, coun before 1952, rendered

petitioner ineligible to citizenship on the hel of his

IV. PETITIONER’S REQUEST FOR. SUSPENSIQN OF DEPORTA-

TION, MADE BEFORE THE 1952 ACT, IS NOT TO BE DETER-

MINED UNDER THE 1952 LAW ;

The instant case is ‘nof governed by the provisions |

of the 1952 Act or by ‘decisions. in which naturalization .

is sought under the 1952 Act. Our discussion of the

provisions of the 1952 Act (supr a, pp. 40-46); solely for

the light the new provision may afford on ‘the earlier

provisions, must not obscure the fact that petitioner

made his application for suspension of deportation

before the 1952 Act was enacted. He had the benefit

. of the less stringent requirements as to showing of

- hardship embodied in the earlier Act.* He filed no

- petition for’naturalization undér the 1952 Act and his .

eligibility -to ‘citizenship, as a requirement of his re-

quested relief of suspension of deportation, was not

and ¢ould not be determined upon the, basis of 1952:

provisions not even in existence. He cannot now de-

mand suspension of deportation under the earlier,

less stringent, requirements as to hardship and simul-.

taneously seek to have his eligibility to citizenship

(another prerequisite for such suspension under the -

former act), determined by the later law.

* The staridard of the 1917 Act, as amended, of “serious economic

detriment” to dependents has, under Section 244 of the 1952 Act,

been changed to “exceptional and extremely unusual hardship.”

We do not concede that petitioner would be eligible - .

for.citizenship under the 1952 Act. In the first place,

' as urged’ in\ Point II, we think the record shows that

petitioner both applied for and was granted relief

from service on the ground of alienage. Supra,

pp. 16-23. Furthermore, as discussed supra, pp. 40-46, |

we think that Section 315 (a) does not serve to change

the effect/of an accomplished. debarment of citizen-

ship unde? Section 3 (a) of the Selective Training and

Service Act of 1940, as amended. But, in any event,

and even .if we are wrong as.to a future application

for naturalization by petitioner, he cannot have ‘his

present request for relief from deportation determined

by the 1952 Act.

CONCLUSION

For the’ reasons stated, it is respectfully. submitted

that the judgment of the Court of a should be

affirmed.

J. LEE Raware,.

Solicitor General.

- WaRrEN Otney ITI, °

Assistant Attorney General.

BEATRICE ROSENBERG,

J. F. Bishop, .-

| : | | \erylttorinveys,

OerToBER 1956.

_ * By now, petitioner appears to have the residence requirements

for an application for suspension of deportation under Section 244

of the 1952 Act. ° He can apply for relief under that Act, not be--

cause he is eligible for citizenship, but because the Board of Immi-

gration Appeals has indicated that, under the 1952 Act, eligibility

_ for citizenship is not a prerequisite for suspension of geportation

under Section 244. Matter of G.5 I & N. Dec. 1 Petitioner

will, in that event, have to meet the st andard of economic hardship

Of the 1952 Act.,

_ APPENDIX A &

STATUTES INVOLVED

Section 3 (a) of the Selective Training and Service

Act of 1940, 54 Stat. 885; as amended, 50 viet S. C. App.

(1946 ed.) 303 (a), provided :

. Except as otherwise provided in ‘this Act,

every male citizen and every other male person

residing in the United States, who -is between

' the ages of nineteen and forty-five 2 ae

be liable for training and service in the land

and naval forces of the United: States: Pro- —

vided, That any citizen or subject of a neutral -

¢ ountry shal] be relieved from Wility for

training and service under this Att if, prior to

his induction into the land or naval forces, he

‘ has made application to be relieved from such

liability in the manner prescribed by and in

accordance with ‘rules and regulations pre-

sernibed by the President, but any person who

makes such application shall thereafter be -de-

_ barred from becoming a eitizen of the. United

. Co * 9 *

Section 19 (e) of the a Act of 1917, as:

amended, 62 Stat. 1206, 8 U. 8. C. Carer ed. oaEp: ‘V).

155, provided: ; .

In the’ case. of any alien ** * who is de-~

_ portable under any law of the United States

and who has proved good moral character for

_ the preceding five years, the Attorney General

may * * * (2) suspend deportation of such

‘alien if he is not ineligible for naturalization

** * if he finds (a) that such deportation

would result in serious economic detriment to a

citizen * * * who. is the spouse, * * * or

minor child of such deportable alien * * *.

(48)

49.

-» Section 28 (c) of ‘the Immigration Act of 1924,.as_.

amended by: the Aet of October 29, 1945, 59 Stat. 551,

.8U.8. C. (1946 ed.) 224 (c) provided: |

The. term ‘‘ineligible to citizensbiyy” ‘ when:

used in réference to any individual, includes an ..

individual who is debarred from becoming a

citizen of the. United States under * * * sec-

tion 3 (a) of the Selective Training ani Service

Act of 1940, as amended, (55 Stat. 845; .C.,

title 50, App. Supp. IIL),. section 303 (a), or

under any law amendatory of, supplementary

: to; or in substitution for, ° any such sec-

wes * *..”.

The Immigration and Nationality Act of 1952, Sec-

“tions 101. (a): (19), 315, 405, 66 Stat. 169, 242, 280,

8 U.S. C. 1101 (a) (19), 1426, 1101 fn) provides:

-[§ 101 (a)] (19). The term ‘‘ineligible to

citizenship”’, when used in reference to any

individual, means, notwithstanding thé- pro-

visions of any treaty relating to military ‘serv

ice, an individual who is, or was at any time,

permanently debarred from becoming a citizen

of the United States under section 3 (a) of the

. Selective Training and Service Act of. 1940, as

~ amended (54 Stat. 885; 55 Stat. 844), or ander

section 4 (9). of the Selective Service Act of

1948, as amended (62 Stat. 605; 65 Stat. 76)

er under any section of this Act, or any other

; Act * + all

§ 315] (a). Notwithstanding the prov isions -

of section 405 (b), any alien who applies or has

applied for exemption or discharge from train-

§ - ing or service in the Armed Forces or in the

National Security Training Corps of the United

States on the ground that he is an alien, and is”

or.was relieved or discharged from such train- -

ing or service on such ground, shall be pernta-

nently ineligible to become a_ citizen of the

United States.

0 a =

(by ‘The records of tle Siblective Service Sys-

tem or of the National Military Establishment

shall be conclusive as to whether an alien was

relieved or discharged from such liability for

training or service because he was an alien.

[§ 405] (a). Nothing contained in this Aet,

‘unless otherwise specifically provided therein,

shall be construed to affect the validity of. any

- * * * warrant of arrest, order or warrant of

deportation, order of exclusion, or other docu-

ment or proceeding which shall be valid, at the

time this Act shall take effect; or to affect any

_ prosecution, suit, action, of proceedings, civil or

criminal, brought, or any status, condition, right

in process of acquisition, act, thing, liability, 3

obligation, or matter, civil or criminal, done or

existing, at the time this Act shall take effect ;

_ but as to all such prosecutions, suits, actions,

proceedings, statutes, conditions, rights; acts,

things, liabilities, obligations, . or matters the _

statutes or parts of statutes repealed by this

~ Act are, unless otherwise. specifically provided -

therein, hereby continued in force and effect.

* * *, An application for suspension of ‘de-

portation under section 19 of the Immigration

‘Act of 1917, as amended * * * which is pend-

. ing on the date of enactment of this Act, shall

be regarded as a proceeding w ithin the meaning

of this subsection.

(b) Except as otherwise specifically pro-

~ vided«in title IIT, any petition for naturaliza-

tion heretofore filed which may be pehding at

the time this Act shall'take effect shall be heard

and. determined in accordance with the require-

oy of law in effect when such petition was

le 3

APPENDIX B

THE Circumstances OF PETITIONER’ s Seontica OF THE

EXEMPTION Forms

The circumstances concerning the signing of the

exemption forms have been stated by petitioner at

different*times to different ¢ffect. In a sworn affi-.

davit bef@re the United States Consul at Mexico City, .

petitigner denied ever having signed a Form 301 .

(R. 32, 85). In a hearing before a Special Inquiry

Officer of the Immigration Service on July’ 31, 1951,

at which hearing the officer placed the Form 301 itself

in evidence (R. 35), petitioner. asserted that he and

_«. other Latins’ discussed the situation, ‘‘not being able

. to ask apybody in the draft board about ‘what was -

— the best procedure to follow due to the fact that at —.

that tine ations of boys Were being drafted and

the forris were being handed to you to. be filled if you

wanted to filt them’’ (R. 36). Petitioner and his

friends decided that they would prefer to serve in the.

Colombian army, rather than the United States army

(Re 32, 36), for the following reasons (R. 36):

** * If we went into the United States _

Army we felt that we would not. have the same

opportunity of being treated as fair as a native

of the United States; and not only because. we:

were aliens but also because. being ‘used to tropi-

cal climates that we might be sent to places

that were extremely full of tropical or other

diseases. * * *

Petitioner, atthe same 1951 hearing, testified that he

_ thought Form 301 involved only a temporary defer-

ment ‘‘pending indication from the same draft board

as‘to what would be the best choice for mc as to

(51)

mS ale ann eo

whether I wanted to serve in the Colombian Army or.

the United States Army”’ (R. 32, 36-37).

- Interrogated as to his earlier affidavit before the:

United States Consul in which he denied signing of

Form 301, petitioner stated that he ‘‘never thought

the fact that [he] signed that form before was still

in effect,’’ since, upon Colombia’s later declaration

of war, he had been called by thé selective service

board, although he was never called "for induction

prior to Colombia’s belligerency, and he was never

actually inducted into the United States armed forces,

due to exemption for physical’ ‘condition (R. 32-33).

stand that in signing Form 301 he was signing a

paper by which. his citizenship would be affected

-(R. 34), but he at no. point testified to inability to

understand the meaning of what he signed. ,

At the reopened hearing on January. 25, 1954, peti-

tioner asserted that he had discussed the signing of

the forms-with the selective service board as well as

with fellow Latins (R. 57-61, 64, 66). He asserted.

that in May 1942 he lost his registration card and

went to the seleétive seryice board to get a copy and

again went to the board to notify: it of a change of

address ; that on these occasions he discussed with the —

board the matter of serving in a division of Colom-

bians' “‘within the United States army’? (R.. 57-58) ;

that he had further discussions as to the same effect

with the board and with fellow Latins upon receipt of

Forms.304 and 301 (R. 57-59). He could not state,

however, with whom he yaa spoken at the board

(R. 64). |

Petitioner had no explanation for having written an

absolute refusal to serve, in his Forms 304 and 301,.

instead of writing some explanatory statement of will:

ingness to serve in a Colombian unit of the United

5 OE rem me ame 5 Te - ~ ~~ EO

States army (R. 64). He testified that he did not .

understand that he was asking to be relieved from

military service (R. 61). ‘With respect to the clause

in Form 301 specifically stating that debarment from

citizenship would result from making application for

‘relief from service, petitioner stated, “the fact tMat —

- I would serve in the United States Army would auto-

. Inatically. eliminate that clause” .(R. 65).

! Thé special inquiry officer conchided that petitioner

“understood the language of the form [301] which is

- simple” (R. 71) ;* that, on the basis of petitiower’s

# ‘affluent business standing and general demesne

was a person of. intelligence and ability to understand

documents, even of complex nature (R. 75); and that

there was no evidence that the selective service board

informed petitioner that a special group of Colom-—

bians was being formed for the United States armed

forees (R. 75). . .

The Board. of Immigration Appeals, in dismissing

petitioner’s appeal, pointed out, inéer alia, the same

considerations that the special inquiry officer had.

_ noted, 1.’ ¢., petitioner’s familiarity with the English

language as a translator, his intellectual capacity as

. 4 successful businessman to understand the forms

- involved, and the simplicity and clarity of the ferras

themselves (R. 81-83). With respect to petitioner’s

more recent claims of misunderstanding and of dis-

‘cussions with the selective service board, the Board

considered petitioner’s inconsistencies to be such that.

“his: recollection of events cannot be relied upon’? |

(R. 83, 89). With respect to petitioner's attempted

explanation of the fact that he had denied before the

United States Consul ever having signed Form 301,

the Board found “such a selective attitude by [peti-

tioner] toward facts that his candidness must be ques-

tioned” (R. 85). 7 |

U.S. GOVERNMENT PRintiNG OFFICE 198s

i 1

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