Respondents Brief — Astrup v. Immigration & Naturalization Service

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Ar ument:

I. Because petitioner applied for relief from military

service before the effective date of the Immi-

gration and N ationality Act of 1952, his eligi-

bility for citizenship is determined by Section

4(a) of the Selective Service Act of 1948; there-

fore, the making of the application in itself

debarred petitioner from citizenship._________- 10

~ II. Petitioner is also ineligible for citizenship under

Section 315(a) of the Immigration and Nation-

x

Pe.

EP

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SS

. PG Anata imegucueaces fenccaera le. 17

nc ccienvadedcsecuatatderstesectet ice. 26

CITATIONS

© Berenyi v. District Director, 385 U.S. 630___..._..._- 25

~~ Cannon v. United States, 288 F. 2d 269..._.._______ 18

> Caputo, Petition of, 118 F. Supp 870_.._.__________. 21

__ Ceballos v. Shaughnessy, 352 U.S. 599.____.________- 7,

12, 13, 14, 16, 21, 24

__ Cuozzo, In re Naturalization of, 235 F. 2d 184_______- 21

Fabbri, In re Petition for Naturalization of 254 F. Supp.

Raa ISR ATi Se es Sl 21-22

' Francieco Ballester Pons v. United States, 220 F. 2d

» 399, certiorari denied, 350 U.S. 830___.__.._____. 16

© Gilligan v. Barton, 265 F.2d 904............-. 16, 21

| Girouard v. United States, 328 U.S. 61______________ 24

| Giz v. Brownell, 240 F.2d 25._._...._........____. 21

| Johannessen v. United States, 225 U.S.227.....____. 25

(n)

421-096—71——-1

;

'

bi ee

Jubran v. United States, 255 F. 2d 81___-..-..-- 16, 17, 21

Kadich, In re, 221 F. Supp. 353._........---...-.-. 21

Kohl, Petition of, 146 F. 2d:347_2.:-.-.-.-.----2.-- py)

Lapenieks v. Immigration and Naturalization Service,

389 F. 2d 343, certiorari gor 391 U.S. 951____. _—

342 U.S. 948 incdtkguhecscnsbueenccccoacesenph 21

Maney v. United States, 278 U.S.17..--.-----.-.--- 4

Matter of J, Sy SG” CRS aN 12

McGrath v. Kristensen, 340 U.S. 162............-.-- 17

Mirzoeff, Petition for Naturalization of, Israel, 196 F.

EY Benign ic enendwnne-scnenwceccccnscnasnep 16

Mirzoeff, Application of, 253 F. 2d 671_.-_--...._-.. 16

Moser v. United States, 341 U.S. 41_-_-_-.__- 12, 22, 23, 25

Rego’s Petition, In re, 289 F, 2d 174... -...---..-- 16, 17, 18

Shomberg v. United States, 348 U.S. 540.....-...._-- 14

Skender’s Petition, In re, 248 F. 2d 92, certiorari de-

einen cdbadeneepeciannins 17

United States v. Bazan, 228 F. 2d 455.........-_- 16, 17, 21

United States v. Ginsberg, 243 U.S. 472......_._.__- oy

United States v. Hoeliger, 273 F.2d 760... - 8, 9, 15, 16, 18, 19

United States v. Kenny, 247 F . 2d 139__....-..-___- 21

United States v. Lacher, 299 F. 2d 919__-__._-.--_--- 18

United States v. Macintosh, 283 U.S. 605_.........-- 4

United States v. Menasche, 348 U.S. 528..........--- 14, 15

Velasquez v. United States, 241 F. 2d 126._...__..._- 17

Wendt, In re, 300 F. Supp. 725. -.....-.-.--------- 21

Zartarian v. Billings, 204 U.S. 170_...-..---...---- %

Constitution, statutes and regulations:

Immigration and Nationality Act, §101(a)(19), 66

Stat. 166, 8 U.S.C. 1101(a)(19)_--.....-..-..--- 2, 15-16

Immigration and Nationality Act, § 244, 66 Stat. 214,

as amended, 8 U.S.C. 1254.._-.-._.-_--....-.-.. 13

Immigration and Nationality Act, §315(a), 66 Stat.

BR Bs Mo nk kw nn nenedeconmawdesacns 2,

7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 23, 24

Immigration and Nationality Act, § 405(a), 66 Stat.

280, 8 U.S.C. 1101 (note)... -...---.--.___- 7, 14, 15, 16

Selective Draft Act of 1917, § 2,40 Stat. 77_.....___- 10

Selective Draft Act of 1918, §1, 40 Stat. 955..____.- 10, 21

bate

Constitution, statutes and regulations—Continued Page

Selective Service Act of 1948, § 4(a), 62 Stat. 605_-_-_- 3,

7, 10, 11, 12, 13, 16

Selective Training and Service Act of 1940, §3(a), 54

TE, Tia ah nd bo detdecnis dak nethsovdhdewaes 10, 11, 16

Selective Training and Service Act of 1941, § 2, 55 Stat.

United States Constitution, Eighth Amendment... -- 25

Universal Military Training and Service Act of 1951,

SE Oe Ws Picea chensidbhsancnncncesene 11, 12, 16

Be ect bucknakdaadaiawnwabats 11

Oe ae I

Ju the Supreme Gourt of the Wited States

OctToBER TERM, 1970

No. 840

Is Orto ASTRUP, PETITIONER

v.

IMMIGRATION AND NATURALIZATION SERVICE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (A. 49) is re-

ported at 432 F. 2d 438. The opinion of the district

court (A. 43-47) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

July 8, 1970. Mr. Justice Douglas extended the time

for filing a petition for a writ of certiorari to Octo-

ber 16, 1970. The petition was filed on October 12,

1970. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a resident alien who applied for and re-

eeived an exemption from military ‘service as an alien

(1)

2

on condition of permanent ineligibility for Unite

States citizenship remained ineligible to become ,

citizen after he was later reclassified as available fo

military service but not required to serve because of

physical unfitness.

STATUTES INVOLVED

Section 315(a) of the Immigration and N ationality

Act, 66 Stat. 242, 8 U.S.0. 1426(a), provides:

Notwithstanding’ the provisions of section

405(b) of this Act, any alien who applies or

has applied for exemption or discharge from

training 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

training or service on such ground, shall be

permanently ineligible to become a citizen of

the United States.

Section 101(a)(19) of the Immigration and No.

tionality Act, 66 Stat. 166. 8 U.S.C. 1101 (a) (19) pro

Vides : =e as

As used & this chapter—

* * * * *

The term “ineligible to citizenship,” when

used in reference to any individual, meatis, not-

withstanding the provisions of any treaties re-

lating to military service, 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 under section 4(a) of the Se

lective Service Act of 1948, as amended . (62

£3

Stat. 605; 65 Stat. 76), or under any section

_., of this Act, or any other Act, or under any law

be amendatory of, supplementary to, or in substi-

tution for, any of such sections or Acts. ..

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

62 Stat. 605, provided, in pertinent part:

Except as otherwise provided in this title,

ty | every male citizen of the United States, and

every male person residing in the United

States * * * shall be liablé for training and

service in the armed forces of the United

States. Any citizen of a foreign country, who is

not deferrable 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 to be relieved from

such liability in the manner prescribed by and

in accordance with rules and regulations pre-

: scribed by the President; but any person who

i makes such application shall thereafter be de-

barred from becoming a citizen of the United

Sta * *# &

STATEMENT

Petitioner is a native and citizen of Denmark, who

entered the United States for permanent residence on

February 20, 1950. On August 20, 1950, he registered

| for selective service and’ was thereafter classified I-A

(available for military service) and ordered to report

| for induction. On October 11, 1950, petitioner was

) given a medical examination and found physically

14, 1950, as the law then permitted, he filed an ap-

acceptable for military service (A. 8). On November

RI ES OEE

Crap

: caatemeneemeesee a

4

plication for exemption from military service on the

ground of alienage, and his draft board. thereupon

reclassified him IV-C (alien not currently liable for

military service) (A. 25-30). tor

In 1951, an amendment to the Selective Service

Act eliminated the prior provision under which per-

manent resident aliens could apply for relief from

military service. On August 6, 1952, petitioner was

reclassified I-A, and was ordered to report for physi-

cal examination and induction on September 2, 1952,

This time petitioner’s medical examination showed

that he was suffering from bursitis, and he was found

not physically qualified for military service. Induction

was therefore deferred for three months and on

November 24, 1952, petitioner was classified V-A

(over 26 years of age) (A. 9, 30-31, 36, 39).

On May 14, 1965, petitioner filed a petition for nat-

uralization in the United States District Court at San

Francisco, California (A. 4-5). At a hearing before

a naturalization examiner on September 2, 1966 (A.

19 et seq.), petitioner testified that after his I-A

classification in 1950 he sought the advice of the

Danish consul, who explained the alternatives to him,

and he thereafter filed the application for relief from

military service (Form SSS 130) after he had

“weighed the problem” (A. 26-27, 30). The form he

signed read in part (A. 12-13):

I hereby apply for relief from liability for

training and service in the armed forces of the

United States. I have read the NOTICE given

below, and I understand that I will forever

lose my rights to become a citizen of the United

5

- States, and I may also be prohibited from entry

into the United States or its territories or pos-

sessions as a result of filing this application.

The ‘‘NOTICE” referred to was as follows:

Section 4(a) of the Selective Service Act of

1948, provides in part that “any citizen of a

foreign country, who is not deferrable or ex-

empt from training and service under the pro-

visions 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

to be relieved from such liability in the manner

prescribed by and in accordance with rules and

regulations prescribed by the President; but

any person who makes such application shall

thereafter be debarred from becoming a citizen

of the United States.” Under other existing

law, an alien who is not a permanent lawful

resident of the United States at the time of

execution of this application, thereafter be-

comes barred from ever making an entry for

permanent residence into the United States,

including Alaska, Hawaii, Puerto Rico, and

the Virgin Islands, unless he enters as a min-

ister of any religious denomination or as a pro-

fessor of a college, academy, seminary, or

university.

Petitioner testified that he had read and understood

this Notice before signing the application (A. 28).

The following colloquy appears’ in’ his statement (A.

29-30) :

Q. Then, is te any possibility that you did

not understand that by signing this form you

421-006—71——-2

b

would be forever debarred from becoming: a.

_ eitizen of the United States? of

| Ay No, there was not. ha

In his statement to the designated naturalization ex.

aminer, petitioner also stated that he had applied for.

relief from military service primarily because he did

not intend to remain permanently in the United.

States and planned to return to Denmark after a year

or two (A. 28).

On July 16, 1968, petitioner appeared for a hearing

before the district court, at which he was represented

by counsel (A. 35 et seq.). He again testified that his

chief reason for making the application for relief

from military service in 1950 was his uncertainty

whether he wished to remain in the United States (A.

36-38). He also stated that when he signed the ap-

plication he understood that it would give him per-

manent deferment and that he would not have signed

it if he had known that his deferment would not be

permanent (A. 38).

The district court denied the petition for natural-

ization, (A. 43-47) and the court of appeals affirmed,

observing that (A. 49) :

He made a considered decision initially to

claim his alienage as a ground for avoiding

military service. We believe the situation should

be tested as of the time his claim was made. |

SUMMARY OF ARGUMENT

I

Petitioner’s application for an alien’s exemption

from military service was made in 1950, at which time

the Selective Service Act of 1948 was in effect. In

Ceballos v. Shatighnessy, 352 U.S. 599, as here, the

alien’s exemption was later removed, and the alien was

reclassified and ordered to report for induction, but

failed to pass his medical examination. Nonetheless,

this Court held that the language contained in the 1948

Act expressly directed that the making of such an

application in itself debarred the alien from citizen-

ship, and the ensuing circumstances did not remove

the bar.

Petitioner contends, however, that since he applied

for naturalization subsequent to the 1952 effective

date of Section 315(a) of the Immigration and Na-

tionality Act, his disqualification is removed by the

more liberal test of ineligibility set forth in that

statute. But here, as in Ceballos, the controlling date

is not the date on which the petition for naturaliza-

tion was made, but instead, the date on which petition-

er applied for his alien’s exemption. Indeed, Section

405(a) of the Immigration and Nationality Act states

that “unless otherwise specifically provided”, all “lia-

bilities” arising under prior law shall continue in

effect. Petitioner’s debarment from citizenship under

the 1948 Act is just such a pre-existing “liability”.

Sinee Section 315(a) does not contain a specific excep-

tion to the Section 405(a) saving¢ clause, petitioner’s

liability is unaffected by the 1952 statute.

IT

Even if the language of Section 315(a) were appli-

cable to this case, petitioner nonetheless remains in-

dligible to become a citizen. Section 315 requires, in

ee

8 te

addition to the making of an application, thet g

applicant for exemption “is or was relieved”. fp

military. service as a result of his application, eal

It has consistently been held under this statute that

one who. has subsequently been compelled to perforn

military service has not been effectively “ relieved”

from service within the meaning of Section 315, See,

€.g., United States v. Hoellger, 273 F. 2d 760 (C.A,2),

Petitioner argues that since draft-exempt aliens wh

actually serve in the military are not debarred from

seeking citizenship, his debarment here is not the ,re.

sult of his having sought exempt draft status, but is,

instead, the result of his failure to pass a physical

examination. However, we interpret the language “js

or was relieved” to mean that as long as the alien

has not actually served in the armed forces, he re.

mains ineligible for citizenship if he was relieved at

any time on grounds of his alienage. The petitioner

in this case was relieved from service for at least

a year and a half solely on grounds of having sought

an alien’s exemption. Indeed, his alien’s exemption

appears to have been the major factor contributing

to his permanent relief from service, because prior

to seeking that exemption, petitioner had been exam

ined and found physically fit for the draft. Hoellger

and other cases dealing with exempt aliens who. have

actually served in the armed forces have specifically

excluded from their holdings the situation in which the

alien fails to pass his medical examination, on grounds

that in these cases “(T)he physical disability: ;may

have arisen between the date the alien would have

been inducted but for the obtaining of the exemption

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9

and the subsequent date on ‘which: induction is or-

dered.” 273 F. 2d at 763, n. 2. Every court of appeals

which has directly considered the question involved

here has distinguished the Hoellger line of decisions

and agreed with our reading of Section 315.

We reject petitioner’s contention that he was misled

in‘ his assumption that his alien’s exemption would

be permanent, and therefore that he cannot be held

to the consequences of his waiver of eligibility for

citizenship. The only support for the ‘notion that

petitioner was “misled’’ is his assertion that he did

not realize that the exemption would later be re-

moved by statutory amendment. We do not believe

that petitioner’s failure to predict future changes in

the law has any bearing on whether he made a know-

ing waiver of his citizenship benefits.

We agree, however, that our reading of Section

315 produces a somewhat harsh result, for it is

arguable that petitioner is being held here to his

end of what might be regarded as a bargain, even

though some of the consideration for that bargain

has been taken away. Though we believe that there

is support for such a result in the language of Sec-

tion 315, this Court must assess the likelihood that

Congress intended in these circumstances to hold peti-

tioner strictly to his waiver.

Finally, petitioner’s constitutional arguments are

without merit. The condition imposed here with re-

spect to naturalization—that the alien refrain from

removing himself from the duty of performing mili-

tary service—was fair and reasonable. Holding peti-

toner to his considered choice not to seek citizen-

if

ship is not in any way, as petitioner contends,

punitive measure inflicted on petitioner because of

his failure to pass a physical examination.

ARGUMENT

I. BECAUSE PETITIONER APPLIED FOR RELIEF FROM MILi-

TARY SERVICE BEFORE THE EFFECTIVE DATE OF THE

IMMIGRATION AND NATIONALITY ACT OF 1952, His

ELIGIBILITY FOR CITIZENSHIP IS DETERMINED BY §£c-

TION 4(&) OF THE SELECTIVE SERVICE ACT OF 1948;

THEREFORE, THE MAKING OF THE APPLICATION ty

ITSELF DEBARRED PETITIONER FROM CITIZCNSHIP

The conscription laws of this country since Worl

War I have consistently subjected Specified classes

of aliens to compulsory service. In Section 2 of the

_ Selective Draft Act of May 18, 1917, 40 Stat. 71-18,

Congress imposed liability for military service on

“male persons not alien enemies who have declared

their intention to become citizens.’’ This statute was

amended by Section 1 of the Act of August 31, 1918,

40 Stat. 955, to provide that a neutral alien could

obtain relief from military service by withdrawing

his declaration of intention “and he shall forever

be barred from becoming a citizen of the United

States.”

This pattern of relief from military service ani

consequent debarment from citizenship appears, in

varying forms, in all subsequent selective service

statutes. Thus, Section 3(a) of the Selective Training

and Service Act of 1940, 54 Stat. 885, as amended by

Sec. 2 of the Act of December 20, 1941, 55 Stat. 845,

subjected to service all “male person[s] residing in

the United States,” but authorized an application by

“42a PB HH

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—_ ball — > |. = = -_- —

_

a neutral alien for relief from military service, spec-

ifying that ‘‘any person who makes such applica-

tion shall thereafter be debarred from becoming a

citizen of the United States.” *

The next major statute was the Selective Service

Act of 1948. Section 4(a) of that statute, 62 Stat. 605-

606, provided for registration and service by every

citizen and “every other male person residing in the

United States”’; it authorized an application for relief

from service by any citizen of a foreign country,

specifying that ‘‘any person who makes such appli-

eation shall thereafter be debarred from becoming a

citizen of the United States.”’

This provision was amended by Section 1(d) of the

Universal Military Training and Service Act of

June 19, 1951, 65 Stat. 76, which made aliens admitted

for permanent residence liable for service without

any provision for exemption.’ It is this provision that

gives rise to the problem in this case.

Petitioner’s application for relief from military

service was made in 1950, when the Selective Service

Act of 1948 was in effect. Under the express direc-

1In its original form, the 1940 Act, enacted before the

United States became a belligerent, had no provision for relief

of aliens from military service.

*The 1951 Amendment also imposed the military obligation

on aliens who remained in the United States in excess of one

year in a status other than that of permanent resident, but

permitted those in this non-permanent group to apply for

relief from military service: again, the amendment

that “any alien who makes such application shall thereafter

be debarred from becoming a citizen of the United States.”

This last formula has been retained in the selective service

law since then, and is incorporated in 50 U.S.C. App. 454(a).

12

tion of Section 4(a) of that statute, the voluntary

making of an application for relief from service in.

itself resulted in petitioner’s debarment from citizen-

ship. Indeed, this Court has expressly held that the

making of the application is the act that triggers

debarment from citizenship under the identical lan-

guage of the 1941 Act. Ceballos v. Shaughnessy, 352

U.S. 599, 604. And as this Court has observed in

Moser v. United States, 341 U.S. 41, 46:

[A]s a matter of law, the statute imposed a

valid condition on the claim of [an] * * * alien for

exemption; petitioner had a choice of exemp-

tion and no citizenship, or no exemption and

citizenship.

Nothing in the circumstances following petitioner’s

application avoids the consequence of his considered

“choice of exemption and not citizenship”. It is true

that, as a permanent resident, he was thereafter re-

classified as available for service after the 1951 amend-

ment. Attorney General McGrath considered similar

cireumstanees in Matter of J, 2 I&N Dee. 545, 552

(1947), involving a neutral alien who had applied for

and had been granted relief from military service in

1943. In 1945, after his country became a cobelligerent,

he was ordered to report for induction and was re

jected as physically unfit. The Attorney General re-

jected the contention that the exemption claim had

not received “complete and uninterrupted re¢ogni-

tion”, and found the alien ineligible for citizenship,

observing :

The language of the statute seems plain and I

think the Congress intended that he should be

bound by his election.

13

‘his Court confirmed the Attorney General’s: view

of the statutory language in Ceballos v. Shaugh-

nessy, supra. There an application for suspension of

deportation was denied on the ground that the appli-

cant was ineligible for citizenship, because he had

obtained relief from military service as a neutral

alien in 1943, and thus was disqualified from suspen-

sion’ His country beeame cobelligerent in November

1943, and in January 1944, five months after he ap-

plied for and obtained relief from military service, he

was reclassified and ordered to report for induction,

but was rejected as physically unfit. As we have noted,

this Court found that the voluntary making of the

application rendered Ceballos ineligible for citizen-

ship, and that this debarment was not altered by the

subsequent events. The Court observed, 352 U.S. at

605:

The neutral alien in this country durmg the

war was at liberty to refuse to bear arms to

help us win the struggle, but the price he paid

for his unwillingness was permanent debar-

ment from United States citizenship.

Petitioner concedes that under the 1948 Act

“[a]Jpplication and application alone was the sig-

nificant event’? (Pet. Br. 21). Petitioner contends,

however, that since he applied for naturalization sub-

sequent to the effective date—December 24, 1952—of

*The immigration law then in effect, unlike the present statute

dealing with suspension of deportation, disqualified aliens in-

eligible for citizenship. See Section 244, Immigration and Na-

of Section 4(a) of the 1948 Act in Ceballos v. Shaugh-

tionality Act, 66 Stat. 214, as amended, 8 U.S.C. 1254.

ane eee eee eee

ie a

bs

14

Section 315(a) of the Immigration and Nationality

Act, 8 U.S.C. 1426(a), his former disqualification hy

been removed by the more liberal “two-pronged” test

of ineligibility set forth in that statute. (See infra,

pp. 17-22.)

In Ceballos, supra, this Court found Section 315 of

the 1952 Act inapplicable to a situation, such as here,

in which the application for exemption giving rise to

ineligibility for citizenship had heen made prior ty

the effective date of that Act in December 1952, Itis

true that the Court in Ceballos relied on a specific say.

ing clause, relating to pending applications for gy.

pension of deportation, set forth in the last senteng

of Section 405(a) of the Immigration and N ationality

Act, 66 Stat. 280, 8 U.S.C. 1101 (note). But there is also:

more general saving clause in the first sentence of See.

tion 405(a), which states that “unless otherwise specifi-

cally provided,’’ all pre-existing ‘conditions, rights,

acts, things, liabilities, obligations, or matters”’ arising

under prior law shall continue in effect. Petitioner’:

debarment from citizenship under the 1948 Seleetive

Service law is just such a pre-existing “liability.”

Although Section 315(a) of the Immigration and

Nationality Act does deal generally with any alien

“who applies or has applied for exemption,” we sub-

mit that this is not a “specific” exception to the sav-

ing clause which would overcome the preservation of

v. Menasche, 348 U.S. 528; Shomberg v. United States,

348 U.S. 540. As this Court stated in the Menasch

case, which confirmed the view that Section 405 (a) is

a broad saving clause and should be broadly construed,

FRE SF

sos 2

, 7

—- PP 2 FT 8

Se

15

The consistent broadening of the savings provi-

sion, particularly in its general terminology,

indicates that this policy of preservation was

intended to apply to matters both within and

without the specific contemplation of Congress

[p. 535].

Indeed, the only specific exception in Section 315 to

the preservation of prior rights and liabilities is the

opening clause, whicii directs that the section shall be

effective, “notwithstanding the provisions of section

405(b).” Section 405(b) is a saving clause which

relates only to petitions for naturalization under

prior law pending when the 1952 Act became effec-

tive.‘ The limitation of this specific reference to

Section 405(b) indicates that Congress intended Sec-

tion 405(a) to be applicable with respect to the opera-

tion of Section 315. Cf. note 3 of Judge Waterman’s

opinion in United States v. Hoellger, supra, 273 F.

2d at 763. Our reading is also supported by the

definition of ineligibility to citizenship in Section 101

(a)(19) of the Immigration and Naturalization Act,

$As this Court specifically held in Menasche, the reference

in Section 405(b) to pending naturalization petitions does not

exclude later filed petitions from the application of Section

405(a).

As we read the statute, subsection (b) merely imple-

ments and emphasizes the operation of its forerunner. It

is clear, first, thet subsection (b) is not a specific excep-

tion of §405(a), since both subsections state that prior

law should apply in certain circumstances. The slight

negative implication derived from the fact that § 405(b)

applies to pending petitions for naturalization, and not to

those filed after the effective date of the new Act, is over-

come by the broad sweep of § 405(a), and its direction

that prior law applies unless the Act “otherwise specifi-

cally provides.” 348 U.S. at 536-537.

ea ee re eee

ase NI

8 U.S.C. 1101(a)(19), which includes persons per

manently debarred from citizenship under the 1949

and 1948 Selective Service Acts.

Since this Court’s decision in Ceballos, a number of

lower courts have considered which law is to be

applied in regard to pre-existing disabilities, These

courts have expressed differing views by way of dicta;

in each instance the applicable statute was either

assumed or conceded, and the decision rested on an-

other ground. See United States v. Hoellger, 273 F, 24

760, 763, n. 3 (C.A. 2) ; Application of Mirzoeff’, 253 F.

2d 671, 672, 674 (C.A. 2) ; Petition for Naturalization of

Israel Mirzoeff, 196 F. Supp. 230 (S.D.N.Y.) ; In re

Rego’s Petition, 289 F. 2d 174, 176 (C.A. 3); United

States v. Bazan, 228 #. 2d 455 (C.A.D.C.) ; Francisco

Ballester Pons v. United States, 220 F. 2d 399, 404-405

(C.A. 1), certiorari denied, 350 U.S. 830; see also

Jubran v. United States, 255 F. 24 81 (C.A. 5); Gilligan

v. Barton, 265 F. 2d 904 (C.A. 8).

Here the issue is clearly presented. Petitioner’s

application for relief from military service was filed

in November 1950; the statutory change making him

liable for service was enacted in June 1951; his re-

classification to I-A occurred in August 1952; he was

found unqualified for service on physical grounds and

deferred for three months in September 1952; and he

was reclassified as over the age for service in Novem-

ber 1952. All of these events occurred prior to the

effective date of the Immigration and N ationality Act

on December 24, 1952. In light of the saving clause

set forth in Section 405(a), we submit that Sec-

tion 315(a) does not affect petitioner’s permanant

17

disqualification which he incurred under prior law on

account of his 1950 exemption application.

Il. PETITIONER 18 ALSO INELIGIBLE FOR CITIZENSHIP UNDER

SEOTION 315(&) OF THE IMMIGRATION AND NATIONALITY

ACT : : reset

Even if the language of Section 315(a) were deemed

to govern, we believe petitioner is nevertheless dis-

qualified. The 1952 Act introduced into this section,

as a condition for ineligibility to become a citizen, the

additional requirement that the applicant for exemp-

tion “‘is or was relieved” from military service as

the result of his application. To some extent this sec-

ond condition has always been applied, since the dis-

qualification has not attached when the request for

relief from service was never honored. See United

States v. Bazan, 228 F. 2d 455 (C.A.D.C.). Moreover,

in some instances ineligibility for citizenship has been

avoided when the application was improperly honored.

See McGrath v. Kristensen, 340 U.S. 162; In re

Rego’s Petition, 289 F. 2d 174 (C.A. 3); contra:

Velasquez v. United States, 241 F. 2d 126 (C.A. 2);

Jubran v. United States, 255 F. 2a 81 (C.A. 5); In

re Skender’s Petition, 248 F. 2d 92 (C.A. 2), cer-

tiorari denied, 355 U.S. 931. .

But there are no such complicating circumstances

here. Petitioner’s request for relief was properly hon-

ored, and he was actually relieved from military serv-

ice. Nevertheless petitioner contends that his conse-

quent relief from military service was temporary and

that because of his reclassification to I-A in August

1952, followed by his rejection on physical grounds

18 #

in September 1952, he was: not “effectively”

from military serviee on grounds of his alien’s exemp.

tion, as,contemplated by Section 315. In making, thig.

contention, petitioner relies especially. on a series of

decisions, following the lead of United States, %,

Hoeliger, 273 F. 2d 760: (C.A. 2), which hold that ong

who has subsequently been compelled to perform mili-

tary service has. not been “‘effectively’’ relieved from

such service within the meaning of Section 315. Can-

non V. United States, 288 F. 2d 269 (C.A. 2) ; United

States v. Lacher, 299 F. 2d 919 (C.A. 9); In re Rego’s

Petition, 289 F. 2d 174 (C.A. 3). '

In connection with the Hoellger line of cases, peti-

tioner argues that since draft-exempt aliens who ae-

tually. serve in the armed forces are, by force. of

judicial decision, not debarred from seeking citizen-

ship, petitioner’s debarment would be in effect not

because of his having sought exempt draft status, but

because of his failure to pass a physical examination,

Though we find some.appeal in this argument, we be-

lieve that there is an adequate answer to it. Section

315(a) refers to an alien who “is or was relieved”

from service on grounds of his alienage (emphasis

supplied). It is by no means clear from the language

of Section 315 that the alien must be relieved solely

and. permanently on grounds of his alienage. In fact,

the language “is or was relieved”’ may well mean that

as long as the alien has not actually served in the

armed forces, he is ineligible for citizenship if he was

relieved at any time on grounds of his alienage. In

other words, the alien’s effective relief from the draft

may have been the result of more than one ground for

19

exemption, each relieving the alien for part of the

time in which he would otherwise have been required

to serve. As long as the alien’s exemption was one of

the grounds contributing to his effective relief, he has

been “relieved * * * on ‘such ground” within: ‘the

meaning of Section 315. This reading of Section 315

would clearly debar the petitioner in this case from

hecoming a citizen, since he was relieved from service

for more than a year and a half on grounds of having

sought an alien’s exemption from the draft.

Indeed, the Hoellger decision expressly limited its

impact to one “‘who has actually served in the Armed

Forees under compulsion of the executive branch”’

(273 F. 2d at 762), and declared that it would be in-

applicable to one who had not actually served. The

court stated, td. at 763, n. 2:

An alien who postpones induction by means of

an application for exemption, and who is there-

after rejected for physical disability, may legit-

imately be said to have been relieved from

military service by virtue of his exemption ap-

plication. This results from the fact that the

physical disability may have arisen between the

date the alien would have been inducted but for

the obtaining of the exemption and the sub-

sequent date on which induction is ordered.’

‘Similarly, temporary relief resulting from the alien’s ex-

emption could have resulted in an alien’s being over draft age

after that exemption has been removed. In the instant case,

for example, had petitioner’s second physical examination been

scheduled three months later, he would have been ineligible

for the draft, regardless of whether he passed the

by virtue of having reached his twenty-sixth birthday (A. 9). .

It seems, in fact, that because of the proximity of petitioner’s

twenty-sixth birthday, the draft board did not even bother to

20

Judge Waterman’s reasoning could well apply. te:

instant case since, prior to receiving his alien’s ey.

emption, petitioner had been examined and found

physically fit for the draft (supra, p. 3). Though it

cannot he said with certainty that petitioner’s burt

developed. between his first and second examinations

this appears at least to be a strong possibility. Tn any

event, the significant factor is that petitioner, was

found physically fit at his first examination, and, had

he not sought an alien’s exemption, would presumably

have served in the military at that time. Under these

circumstances, it can reasonably be said that peti-

tioner’s alienage was the major factor contributing ty

his permanent relief from military service.

Other cases holding that a person inducted ints

military service was not effectively relieved from such

service have also based their holdings on the fact that

military service was actually performed. In no in.

stance has any appellate court ruled that subsequent

availability to service, without actual service, removed

the disqualification. In fact, every appellate court

which has thus far directly confronted the issue has

ruled that the I-A reclassification of a disqualified

applicant, followed by his rejection as physically un-

fit, produced no change in his ineligibility for citizen-

ship. Lapenieks v. Immigration and Naturalization

give him a formal classification of IV-F ( physically wifit),

but merely deferred his reclassification for three months so°that

he could. be classified V-A (over 26 years of age) (A: 9).

Surely, the fact that an-alien’s age relieved him from: service

after the change in the law should not excuse him. from the

consequences of the election that kept him from service during

the period when he would otherwise have been eligible. ©

ST SAS SPP se ee Se

21

-Service, 389 F. 2d 343 (C.A. 9), certiorari denied, 391

US. 951; In re naturalization of Cuozzo, 235 F. 2d 184

(C.A. 3) ; United States v. Kenny, 247 F. 2d 139 (C.A.

2). See also Ceballos v. Shaughnessy, supra. Moroover,

the:courts have found that the applicant’s ineligibility

has not been altered by his reclassification to I-A

followed by avoidance of actual induction for other

reasons. Gilligan v. Barton, 265 F. 2d 904 (C.A. 8)

(over age); Jubran v. United States, 255 F. 2d 81

(C.A. 5) (occupational deferment).°

The district court decisions cited by petitioner are

distinguishable. In re Wendt, 300 F. Supp. 725 (N.D.

Ii.), and In re Kadtch, 221 F. Supp. 353 (8.D.N.Y.),

involved situations where the applications for relief

from service were erroneously accepted at a time

when the applicant was no longer subject to service.

Petition of Caputo, 118 F. Supp. 870 (E.D.N.Y.),

dealt with an enemy alien who was not liable for

military service under the expresss language of the

1918 Act (see p. 10 supra). In none of these cases could

it be said that the applicant had been relieved from

military service for any period of time whatsoever by

virtue of the alien’s exemption. Finally, the records

were unclear in In re Petition for Naturalization of

‘Subsequent efforts to withdraw an application for exemp-

tion have been unsuccessful. Giz v. Brownell, 240 F. 2d 25

(CA.D.C.); Machado v. McGrath, 193 F. 2d 706 (C.A.D.C.),

certiorari denied, 342 U.S. 948. Cf. United States v. Bazan,

228 F. 2d 455.

“Oy

Fabbri, 254 F. Supp. 858 (E:D. Mich.), and it WAS Rot

certain whether the application relief had tem

honored? 32070028 yw A ot store, oon):

. Petitioner also. argues that he cannot, be held to the

consequences of his waiver of eligibility for: citizen.

ship because, in making that waiver, he, was ‘Misled

in his assumption that his alien’s exemption from the

draft would be permanent. In support of this argu.

ment, petitioner cites the Moser case, supra, in which

this Court removed an alien’s debarment from citi-

zenship on grounds that he had been misled by the

Swiss embassy and the United States State Depart.

ment into thinking that he could. apply for a draft

exemption without giving up his right to seek citi.

zenship. Petitioner does not claim that anyone with-

held information from him or supplied him. with

incorrect information at the time of his application

for exemption from the draft. Indeed, in his statement

before the naturalization examiner petitioner declared

that there was ‘‘no possibility” that he did not u-

derstand that by signing the application he would be

forever debarred from becoming a citizen of the

United States (A, 29-30). Petitioner merely claims

that he was not able to foresee the subsequent legis-

lative developments that would threaten his exemption

from the draft. We do not believe that petitioner's

failure to predict future changes in’ the law has’ any

bearing on the question whether his waiver of citizen:

* Petition of Kohl, 146 F. 2d 347 (C.A. 2), is also inapposite

since it involved no application for relief from military service

as an alien, and concerned only the loyalty of the alien in

the light of his requests for deferment.

23

ship benefits was knowingly made within the meaning

of the Moser decision.

Although we do. sik tliat att me ate can suc-

cessfully invoke the ‘“‘elementary fairness’’ doctrine

referred to by this Court in -Moser, we agree’ that

our reading of Section 315(a): produces'a somewhat

harsh result. For although petitioner ‘was for a ‘time

relieved from military service under his application

for an alien exemption in which he knowingly: relin-

quished any claim to citizenship, it is true that’ he

unexpectedly lost the continuing assurance of exemp-

tion for which he made that relinquishment. And

although we do not believe that petitioner should be

relieved from the consequences of his choice merely

by virtue of subsequent statutory changes which

neither he nor anyone else could foresee, it is

undoubtedly true that petitioner’s election in 1950 was

affected by the statutory scheme then in effect. When

the government modified its part of that arrangement

by actually calling petitioner for service after the

repeal of the statute in 1951—as it undoubtedly had

power to do—it is not altogether clear that Congress

intended, nonetheless, for petitioner’s part of the

arrangement—his permanent debarment from citizen-

ship—to continue. Though we find in the statutory

language evidence that Congress did intend to hold

petitioner strictly to his election, we agree that the

language is not entirely conclusive, and that in resolv-

ing any ambiguity in the language of Section 315(a),

this Court must assess the likelihood that Congress

intended to hold petitioner to his end of what might

be regarded as a bargain—although there was clearly

24

no “‘contract”—after some of the consideration wa,

subsequently taken away.'° | 7

We note, finally, that petitioner’s constitutional

arguments are without merit. Primarily they appear

to rest on the misconception that our reading of the

statute disqualifies petitioner from citizenship because

of his inability to pass a physical examination. This

is not so. His disqualification results from his volun.

tary and knowing application for relief from military

service, and encompasses all who have made such ap-

plications and who have thereby avoided military

service.

Nor can it be doubted that Congress is empowered

to impose such a condition on naturalized citizenship,

It has frequently been stated that naturalization isa

privilege, “to be given, qualified or withheld as Con-

gress may determine.’’ United States v. Macintosh,

283 U.S. 605, 615.° Moreover, this Court has noted

that the right to acquire citizenship “is purely

statutory” (Zartarian v. Billings, 204 U.S. 110,

175), and that “No alien has the slightest right

to naturalization unless all statutory requir.

ments are complied with * * *’’ (United States vy.

Ginsberg, 243 U.S. 472, 475). Therefore there must

be strict compliance with the conditions imposed by

Congress. Maney v. United States, 278 U.S. 17, 22;

*Of course, this assessment of intent would not be necessary

if the Court accepts our view that it is not Section 315(a)

but the preexisting 1948 draft law that determines petitioner's

rights. The harshness of the latter law was accepted by this

Court in Ceballos, supra.

Pe on other grounds, Girouard v. United States, 38

25

Johannessen v. United States, 225 U.S. 227, 240. And

it is settled that the burden is on the applicant to

establish such compliance and that doubts are to be

resolved in favor of the United States and against the

claimant. Berenyt v. District Director, 385 Y.S. 630,

637. Although the above authorities indicate that the

power of Congress to impose conditions on the at-

tainment of naturalization is quite broad, we do not

contend that it is unlimited. However, the condition

imposed in the instant case—that the alien refrain

from removing himself from the duty of performing

military service, a duty incumbent on all citizens—was

both fair and reasonable.

Finally, the attempt to characterize the disqualifica-

tion as punitive, and thereby violative of the cruel and

unusual punishment clause of the Eighth Amendment,

is unpersuasive. There is no evidence of any such

punitive intent. On the contrary, the disqualification

is the anticipated consequence of a knowing and con-

sidered choice between clear alternatives. As this

Court has declared, ‘‘the statute imposed a valid con-

dition on the claim of [an] * * * alien for exemption;

petitioner had a choice of exemption and no citizenship,

or no exemption and citizenship.’’ Moser v. United

States, 341 U.S. 41, 46.

ecm

26

CONCLUSION

For the reasons stated herein, it is iepentditay a sub-

mitted that the judgment of the Court of Appeals

should be affirmed. |

‘Erwin N. Griswotp,

Solicitor General.

Wir. Wuson,

Assistant Attorney General,

Ricuarp B. Strong,

Assistant to the Solicitor General.

CHARLES GorDoN,

General Counsel,

Immigration and Naturalization Service,

Aprit 1971.