Petition for Writ of Certiorari — Pons v. United States

JUN 16 195

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1955

FRANCISCO BALLESTER PONS,

Petitioner,

v.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

Jack WassERMAN,

Warner Bldg.,

Washington 4, D. C.;

Ortanvo J. ANTONSANTI,

San Juan, Puerto Rico,

Attorneys for Petitioner.

Davip Car.iner,

Of Counsel.

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Cases:

Statutes and Treaties:

Immigration Act of 1924:

Section 13 (c), 43 Stat. 161-162, 8 U.S.C. 213(c¢)

Section 28(c), 43 Stat. 168, 59 Stat. 551, 8 U.S.C.

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1955

No.—

FRANCISCO BALLESTER PON S,

Petitioner,

v.

UNITED STATES OF AMERICA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

The petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the First Circuit which affirmed a judgment of the Dis-

trict Court of Puerto Rico denying naturalization to peti-

tioner upon the ground that he is ineligible for citizenship.

Opinions Below

The opinion of the Court of Appeals, set forth in the Ap-

pendix, infra, is reported at 220 F. 2d 399. The opinion of

the District Court (R. 77-85) is reported in 119 F. Supp.

629.

Jurisdiction

The judgment of the Court of Appeals was entered on

March 22, 1955. The jurisdiction of this Court is invoked

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

(1)

2

Questions Presented

1. Whether the Spanish Treaty of 1902 (33 Stat. 2105)

granting nationals of Spain exemption from military serv-

ice and ‘‘all obligatory official functions whatsoever’’ has

been superseded by the Immigration and Nationality Act

of 1952.

2. Whether petitioner became ineligible for American

citizenship under the Immigration and Nationality Act of

1952 which provides that nothing in its naturalization pro-

visions shall be applied ‘‘in contravention of the provisions

of any treaty’’ (66 Stat. 272; 8 U. S. C. 1489) by reason of

claiming draft exemption in 1944 under the Spanish Treaty

of 1902.

3. Whether the Immigration and Nationality Act of 1952

which denies to aliens ineligible for citizenship the right

to travel and reside in all parts of the United States and

would confine such ineligible aliens to the territorial limits

of Puerto Rico, Alaska, or Hawaii, is inconsistent with and

superseded the Spanish Treaty of 1902 which grants na-

tionals of Spain the right to travel and reside in all parts of

the United States on terms equal to that of nationals of the

most favored nation.

4. Whether Congress intended to respect and abide by

the provisions of existing treaties when it enacted the Immi-

gration and Nationality Act of 1952.

5. Whether petitioner is eligible to American citizenship

under the Immigration and Nationality Act of 1952 or

whether he is permanently barred from citizenship notwith-

standing the Spanish Treaty of 1902.

Statutes and Treaties

The Treaty of Friendship and General Relations between

the United States and Spain, signed at Madrid July 3,

3

1902 and proclaimed April 20, 1903 (33 Stat. 2105; 2 Malloy

1701) provides in part:

** ArTICLE IT

There shall be a full, entire and reciprocal liberty

of Commerce and navigation between the citizens and

subjects of the two High Contracting Parties, who shall

have reciprocally the right, on conforming to the laws

of the country, to enter, travel and reside in all parts

of their respective territories, saving aiways the right

of expulsion which each Government reserves to itself,

and they shall enjoy in this respect, for the protection

of their persons and their property, the same treat-

ment and the same rights as the citizens or subjects

of the country or the citizens or subjects of the most

favored Nation.

* They can freely exercise their industry or their busi-

ness, as well wholesale as retail, without being sub-

jected as to their persons or their property, to any

taxes, general or local, imposts or conditions whatso-

ever, other or more onerous than those which are im-

posed or may be imposed upon the citizens or subjects

of the country or the citizens or subjects of the most

favored Nation.

It is, however, understood that these provisions are

not intended to annul or prevent, or constitute any ex-

ception from the laws, ordinances and special regula-

tions respecting taxation, commerce, health, police, and

public security, in force or hereafter made in the re-

spective countries and applying to foreigners in gen-

eral.

4

ARTICLE V

The citizens or subjects of each of the High Con-

tracting Parties shall be exempt in the territories of

the other from all compulsory military service, by land

or sea, and from all pecuniary contributions in lieu of

such, as well as from all obligatory official functions

whatsoever. ’’

Section 303(a) of Title 50, Appendix, United States Code,

pertaining to exemption of neutral aliens from military

service, reads in part as follows:

‘*Persons liable for training and service; number;

term status after completion of term; pay; allowances;

and benefits; place of employment

(a) Except as otherwise provided in this Act, every

male citizen of the United States, and every other male

person residing in the United States, who is between

the ages of nineteen and forty-five, at the time fixed for

his registration, or who attains the age of nineteen after

having been required to register pursuant to section 2

of this Act, shall be liable for training and service in

the land or naval forces of the United States ; Provided,

That any citizen or subject of a neutral country 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 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 there-

after be debarred from becoming a citizen of the United

wees

Section 316(a) of Title 50, Appendix, United States Code,

relating to the suspension of laws conflicting with the

5

Selective Training and Service Act of 1940, and the expira-

tion of the Act reads as follows:

‘Suspension of conflicting laws; expiration of Act;

appropriations.

(a) Except as provided in this Act, all laws and

parts of laws in conflict with the provisions of this

Act are hereby suspended to the extent of such con-

flict for the period in which this Act shall be in force

® @ @99

Section 101(a)(19) of the Immigration and Nationality

Act (66 Stat. 169; 8 U.S.C. 1101-a-19) provides:

‘The term ‘ineligible to citizenship,’ when used in

reference to any individual, means, notwithstanding

the provisions of any treaty relating to military serv-

ice, an individual who is, or was at any time, perma-

nently barred 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 Selective Serv-

ice Act of 1948, as amended (62 Stat. 605; 65 Stat.

76) or under any section of this Act, or any other Act,

or under any law amendatory of, supplementary to,

or in substitution for, any of such sections or Acts.’’

Section 212(a)(22) of the Immigration and Nationality

Act, effective December 24, 1952, (66 Stat. 184; 8 U.S.C.

1182(a)(22)) provides that the following are ineligible for

visas and inadmissible to the United States:

‘“‘Aliens who are ineligible to citizenship, except

aliens seeking to enter as nonimmigrants .. .’?!

1 As interpreted by the Immigration Service, entry includes a coming

from Puerto Rico to continental United States, 8 U. S. C. 1182 (d)(7).

Compare Alcantra y. Boyd, (C.A. 9, May 10, 1955) 23 L. w. 2609.

Nonimmigrants include various classes of visitors 8 U. S. C. 1101 (a) (15).

6

Section 315 of the Immigration and Nationality Act effec-

tive December 24, 1952 (66 Stat. 242; 8 U.S.C. 1426) pro-

vides in part:

‘‘(a) Notwithstanding the provisions of section 405

(b) 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 in-

eligible to become a citizen of the United States.

(b) The records of the Selective Service System or

of the National Military Establishment shall be con-

clusive as to whether an alien was relieved or dis-

charged from such liability for training or service

because he was an alien.’’

Section 357 of the Immigration and Nationality Act, ef-

fective December 24, 1952 (66 Stat. 272; 8 U.S.C. 1489)

provides in part:

‘*Nothing in this title chall be applied in contraven-

tion of the provisions of any treaty or convention to

which the United States is a party and which has been

ratified by the Senate upon the effective date of this

title...”

Section 405(b) of the Immigration and Nationality Act,

effective December 24, 1952 (66 Stat. 280; 8 U.S.C. 1101

footnote) provides:

‘‘Except as otherwise specifically provided in title

IIT any petition for naturalization heretofore filed

which may be pending at the time this Act shall take

effect shall be heard and determined in accordance with

7

the requirements of law in effect when such petition

was filed.’’

Section 13(c) of the Immigration Act of 1924 (43 Stat.

161-162; 8 U.S.C. 213 c) provided in part:

“No alien ineligible to citizenship shall be admitted

to the United States unless such alien (1) is admissible

as a nonquota immigrant under the provisions of sub-

division (b) [a returning resident] (d) [a minister or

professor] or (e) [a student] of section eer

Section 28(c) of the Immigration Act of 1924, as amended

October 29, 1945 (43 Stat. 168 ; 59 Stat. 551; 8 U.S.C. 224 c)

provided :

‘“‘The term ‘ineligible to citizenship’ when used in

reference to any individual, includes an individual who

is debarred from becoming a citizen of the United

States under sections 703 and 706 of this title, or sec-

tion 303(a) of Appendix to Title 50, or under any law

amendatory of, supplementary to, or in substitution

for any such sections. . . , ”’

Statement

The petitioner is a native of Spain and is married to

an American citizen. He entered the United States for

permanent residence at San Juan Puerto Rico on December

26, 1934, has a continuous residence in the United States

of seventeen years and is a respected member of the com-

munity in Puerto Rico. (R. 77). After receiving an order

to report for a pre-induction physical examination in 1944,

the appellant advised his draft board on November 1, 1944,

that he desired to invoke the Spanish Treaty of 1902 grant-

ing him exemption from military service (R. 4, 78).

The Spanish Treaty granted nationals of Spain exemp-

tion ‘from all compulsory military service by land or

sea, * * * as well as from all obligatory official functions

whatsoever’? (Art. V, supra, p. 4) and accorded them

the right to reside in all parts of the United States on the

same conditions as the citizens of the most favored nations.

(Art. II, supra, p. 3)

Beginning with the enactment of the Selective Training

and Service Act of 1940 (50 App. U.S.C. 303-a), the

Spanish Embassy on October 14, 1940 contended that under

the Spanish Treaty, its nationals were automatically

exempt from military service. These protests have con-

tinued through to its most recent note to our State De-

partment on May 18, 1955 which states in part:

*“When the Spanish Embassy secured the relief

from military service in the United States of the

Spanish nationals, whose cases are now pending, this

was done on the basis of a treaty and of the neutral

status of Spain at that time.* * * The Spanish subjects

who are now penalized by immigration restrictions as

a result of their former exemption from military serv-

ice in the United States, obtained this relief through

the action of their Embassy in Washington, which in-

structed them to claim it.’’

On November 2, 1944, petitioner subscribed to DSS Form

301, an application by a neutral alien for relief from mili-

tary service (R. 27).

Petitioner submitted evidence (R. 32) that in 1944, he

was a reservist in the Spanish Army and that under Span-

ish law his citizenship would be lost by foreign military

service without permission from the King? (thus render-

? Article 20 of the Spanish Civil Laws of 1889 provides that Spanish

nationality is lost “by entering the Armed Services of a foreign power

without the permission of the King (Constitution I, 2; Civil Code 23).”

Flournoy and Hudson, Nationality Laws, page 538.

9

ing him stateless). He testified that his purpose in claim-

ing exemption was due to the fact that he was ‘subject to

the Army regulations and subject to being called at any

time by the Spanish Army .. . and was not through with

[his] oath with the Spanish Army.’’ He asserted that he

“could not swear to another nation’? when he ‘‘was on

duty’’ to his own (R. 19, 20, 28) ; that he was forbidden to

enlist in our Army (R. 57-58) and that he did not under-

stand that he would be barred from becoming an American

since ‘‘the treaty between Spain and the United States

was still in force’. (R. 28). However, he was told that

he had to sign DSS Form 301 in order to secure exemption

(R. 57). If he had not been in the reserve forces of the

Spanish Army, he would not have invoked the treaty. (R.

58). Petitioner was granted exemption by his draft board

in 1944 and on December 16, 1952, he filed a petition seek-

ing naturalization as an American citizen (R. 2).

Upon these facts, the District Court held (R. 77) that

petitioner was permanently barred from American citizen-

ship pursuant to 50 App. U.S.C. 303 (a) and 8 U.S.C. 1426.

The Court of Appeals affirmed. It acknowledged that

the Selective Training and Service Act ceased to apply

after 1947 but asserted that thereafter and until 1952, the

Immigration Act of 1924 was applicable. The Court of

Appeals found that petitioner was ineligible for citizenship

under the 1952 Act as well as under pre-existing law upon

the ground that no inconsistency existed between the Span-

ish Treaty of 1902 and these laws and if such inconsistency

was presented, that these later laws prevailed over the

treaty. (Appendix, infra, pp. 19, 20).

Reasons for Granting the Writ

1. The United States has executed reciprocal military

exemption treaties with ten countries. In addition to that

—

10

with Spain, we have such treaties with Argentina (10 Stat.

1005, 1009), China (63 Stat. Pt. II), Costa Rica (10 Stat.

916, 921), Ireland (Dept. of State Treaties and Other Int ‘l

Act Series, 2155), Italy (63 Stat. Pt. II), Paraguay (12

Stat. 1091, 1096) Switzerland (11 Stat. 587, 595) and

Yugoslavia (22 Stat. 963, 964). During World War II

many of the nationals of these countries, including ap-

proximately 30 Spanish nationals residing in Puerto Rico

and about 40 in continental United States, claimed draft

exemption pursuant to these treaties. The Spanish Treaty

of 1902, in the broadest terms of any of these treaties, as-

serts that the nationals covered thereby shall be exempt

from all military service and from “‘all obligatory official

functions whatsoever’’. Moreover, it grants citizens of

Spain the right to ‘‘travel and reside in all parts’’ of the

United States upon terms equal to that of citizens of the

most favored nations.

Congressional awareness of the provisions of these

treaties is demonstrated in section 357 of the Immigration

and Nationality Act of 1952 (8 U.S.C. 1489) which provides

that nothing in the nationality title (title III) of the Act

‘*shall be applied in contravention of the provisions of any

treaty’’.

The Court below, relying upon Moser v. United States,

341 U.S. 41 (1951) found the Spanish Treaty consistent

with our immigration and nationality laws. Four basic

distinctions are presented by persons invoking the Span-

ish Treaty from those who relied upon the Swiss Treaty.

a. The Spanish Treaty unlike the Swiss Treaty provides

that citizens of Spain are to be exempt from ‘“‘all obligatory

official functions whatsoever’’. We submit that under this

provision, Spanish nationals were not obliged to register,

serve or claim draft exemption under any of the Selective

Service Acts, and that they were entitled to draft exemp-

11

tion without the restriction of ineligibility of citizenship.

If a Spanish national was exempt from military service

under the treaty, ‘‘his act in applying for relief from a

non-existent duty could not create the bar against natural-

ization’? McGrath v. K ristensen, 340 U.S. 162, 172, (1950).

b. This Court found that the Swiss Treaty was consistent

with our 1940 Selective Training and Service laws and with

the imposition of citizenship ineligibility in view of the

express exclusion of political rights from the Swiss Treaty.

341 U.S. at 45,46. The Spanish Treaty does not specifically

exclude political rights.

c. Unlike the situation presented in the Moser case, Con-

gress provided since 1952 that in determining eligibility for

citizenship, treaty provisions were to be respected (8

U.S.C. 1489).

d. Finally, it should be observed that the Government,

in the Moser case, specifically recognized that the signatory

powers did not contemplate “conditions on exemption from

military service which would render that grant nugatory”’.

‘And so, it may be assumed * * * that denial of any * * *

specifically granted rights as a consequence of freedom

from military service would be in contravention of the

treaty’’. (Gov’t Brief, Mose: v. United States, pp. 31-33).

Here, if petitioner is ineligible for citizenship, he is denied

rights specifically granted ty the Spanish Treaty. The

treaty grants him the right te travel and reside in all parts

of the United States. If he is ineligible for citizenship,

contrary to the treaty provsions, petitioner may not in

view of the present administrative interpretation of the

Immigration and Nationality Act (8 U.S.C. 1182-d-7 and

8 U.S.C. 1182-a-22) leave Puerto Rico and come to conti-

nental United States. Here is a clear inconsistency with

the treaty as acknowledged by the Government in its Moser

Brief. This restriction affecs some 30 Spanish nationals

in Puerto Rico. It likewise affects many other treaty na-

12

tionals who have been denied the right to travel lawfully

between continental United States and our territories.

Treaty rights are to be liberally construed. Chew Heong

v. United States, 112 U.S. 536 (1884). Of course, Congress

may by a later enactment abrogate a treaty provided that

such purpose has been clearly expressed. Cook v. United

States, 288 U.S. 102 (1933); Cheung Sum Shee v. Nagle,

268 U.S. 336 (1925). The importance of our treaty obliga-

tions, as it affects internatienal rights not only of foreign

nationals but also the privileges and liabilities of our own

citizens residing abroad can not be minimized. If the

United States has abrogated treaty rights by the enact-

ment of the Immigration and Nationality Act of 1952, then

our nationals may no longer be free from foreign military

service in many foreign lands. ~

The violation of treaty rights by the present administra-

tive interpretation of the Immigration and Nationality Act

of 1952 has been the subject of protests by the Spanish

Government. Objection has been taken specifically to the

restrictions imposed upon Spanish nationals in Puerto Rico

who are denied freedom of travel from that island. In

response to these protests, our State Department replied

on August 26, 1953:

‘‘The Attorney General has ruled that until such

time as the issue is resolved by the Courts, the Depart-

ment of Justice will take the position, in the adminis-

tration of Section 315 of the Act, that nationals of

treaty countries who were discharged from military

service on treaty grounds prior to the enactment of

that Act are barred from United States citizenship.’’

The instant case presents for the first time the important

question as to whether or not the Spanish Treaty and our

Tmnigration and Nationality Act of 1952 are consistent.

More important is the interrelation of treaty rights with

13

the Immigration and Nationality Act of 1952 and the issue

as to whether Congress has by statutory enactment cur-

tailed those treaty rights. Resolution of these important

questions which affect our own citizens as well as numerous

individuals residing in continental United States and in our

territories can only be effected by Supreme Court review.

2. The Court of Appeals recognized that the Immigration

and Nationality Act of 1952 contained two conflicting provi-

sions. Section 357 (8 U. S. C. 1489) provides that nothing

in the nationality sections of the law shall be applied in con-

travention of any treaty. However, section 101 (a) (19)

[8 U. S. C. 1101 (a) (19)] defines the term ‘‘ineligidle to ——-

citizenship’’ notwithstanding treaty provisions. Nowhere

in section 315 of the 1952 Act (8 U.S.C. 1426), the naturali-

zation section under which the Court below denied peti-

tioner citizenship, is the expression ‘‘ineligible to citizen-

ship’’ utilized. It is only utilized in the immigration section

(8 U. S. C, 1182-a-22) excluding ‘‘aliens who are ineligible

to citizenship’’. Nevertheless the Court of Appeals trans-

posed this imimgration definition into the naturalization

provisions of the law and thereby nullified section 357. To

determine the proper scope of these various sections in our

immigration and nationality laws it is appropriate that this

Court grant certiorari.

3. It is clear that petitioner’s right to naturalization is

to be controlled by the Immigration and Nationality Act of

1952. Although he filed his petition for naturalization on

December 16, 1952, prior to the effective date of the 1952

Act, section 405 (b) of the new act specifically requires the

application of its provisions to those who are alleged to be

ineligible to become a citizen of the United States. This

construction conforms to the rationale of Shomberg v.

United States, 348 U. S. 540 (1955). The Court below, how-

ever, erroneously applied the Immigration Act of 1924 (8

U. S. C. 224-c) which was inapplicable not only because it

14

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‘

related solely to immigration and not to naturalization but |

also because it had been repealed by the 1952 Act. (66 Stat. |

279). Certiorari is appropriate herein to authoritatively |

settle the proper relationship of section 405(b) of the say-

ings clause of the Immigration and Nationality Act of 1952

(66 Stat. 280) to section 315 (66 Stat. 242, 8 U. S. C. 1426),

Conclusion

In view of the importance of the questions presented as it

affects treaty rights and the proper construction of the

Immigration and Nationality Act, it is respectfully sub-

mitted that a writ of certiorari should issue to review the

judgment below.

Jack WASSERMAN,

Warner Bldg.,

Washington 4, D. C.

Or.anpo J. ANTONSANTI,

San Juan, Puerto Rico,

Attorneys for Petitioner.

Davin Car.iner, Esq.,

Of Counsel.

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15

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

No, 4865

FRANCISCO BALLESTER PONS, Appellant,

v.

UNITED STATES OF AMERICA, Appellee

Before Macruper, Chief Judge, and Maris and Woopsury,

Circuit Judges

Oprnton or THE Court—March 22, 1955

Macrupver, Chief Judge:

We are quite satisfied that the district court correctly

denied appellant’s application for naturalization filed De-

cember 16, 1952, which is the subject matter of this appeal.

That court ruled that appellant was, under the applicable

Acts of Congress, forever barred from obtaining American

citizenship by reason of having, as a resident alien and a

citizen or subject of a neutral country, applied for and ob-

tained exemption from military service under the Selective

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

55 Stat. 844.

Francisco Ballester Pons was born in Spain in 1908. He

became from birth a Spanish subject and has remained such.

On December 26, 1934, he entered the United States for per-

manent residence at San Juan, Puerto Rico. After visits

to Spain in 1935 and 1936.he returned to Puerto Rico, where

he has been continuously residing ever since. As stated

by the district court, all of appellant’s interests, business

16

and social, ‘‘are in Puerto Rico, where he has entered the

community whole-heartedly and is now a respectable and

respected member thereof.’’

On January 17, 1929, Ballester obtained from the Spanish

Consul at Santo Domingo an identification card showing

that he was a member of the Spanish Army Reserve. Under

Spanish law, male Spanish nationals living in certain coun-

tries of Spanish origin could, by registration and money

payment, plus the making of an annual report, be exempt

from Spanish military service unless the outbreak of war

required total Spanish mobilization. Appellant complied

with this procedure for the required period of eighteen

years, after which, in 1947, he was absolutely discharged

from any further obligation to give military service to

Spain. The bearing of the facts recited in this paragraph

will become apparent subsequently.

A Treaty of Friendship and Genera) Relations between

the United States and Spain, signed at Madrid J uly 3, 1902,

and proclaimed April 20, 1903 (33 Stat. 2105) provides in

part as follows:

“Article IT

There shall be a full, entire and reciprocal liberty of

commerce and navigation between the citizens and sub-

jects of the two High Contracting Parties, who shall

have reciprocally the right, on conforming to the laws }

of the country, to enter, travel and reside in all parts

of their respective territories, saving always the right

of expulsion which each Government reserves to itself,

and they shall enjoy in this respect, for the protection

of their persons and their property, the same treatment

and the same rights as the citizens or subjects of the

country or the citizens or subjects of the most favored

Nation.

They can freely exercise their industry or their busi-

17

ness, as well wholesale as retail, without being subjected

as to their persons or iheir property, to any taxes,

general or local, imposts or conditions whatsoever,

other or more onerous than those which are imposed

or may be imposed upon the citizens or subjects of the

country or the citizens or subjects of the most favored

Nation.

It is, however, understood that these provisions are

not intended to annul or prevent, or constitute any ex-

ception from the laws, ordinances and special regula-

tions respecting taxation, commerce, health, police, and

public security, in force or hereafter made in the re-

spective countries and applying to foreigners in

general.

Article V

The citizens or subjects of each of the High Contract-

ing Parties shall be exempt in the territories of the

other from all compulsory military service, by land or

sea, and from all pecuniary contributions in lieu of

such, as well as from all obligatory official functions

whatsoever. . . .”’

The treaty exemption in Art. V is from ‘‘compulsory

military service,’’ which leaves open and unprescribed the

procedure by which a person called to service may manifest

his unwillingness to serve—if such is his state of mind—

and thus obtain his release from any military obligation.

As applied to a given individual, Art. V is not ‘‘automatic’’

in the sense that the alien, if he is unwilling to render

military service, may simply ignore a summons to service,

or ignore the procedure, set up or authorized by legislative

enactment, whereby the alien may claim his exemption from

compulsory military service by making a declaration to the

proper authorities of his unwillingness to serve.

EE

18

Therefore, entirely consistent with the exemption con-

tained in Art. V of the treaty, § 3(a) of the Selective Train-

ing and Service Act of 1940 (55 Stat. 845) provided as

follows:

**See. 3. (a) Except as otherwise provided in this

Act, every male citizen of the United States, and every

other male person residing in the United States, who is

between the ages of twenty and forty-five at the time

fixed for his registration, or who attains the age of

twenty after having been required to register pursuant

to section 2 of this Act, shall be liable for training and

service in the land or naval forces of the United States:

Provided, That any citizen or subject of a neutral

country 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 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 makes

such application shall thereafter be debarred from be-

coming a citizen of the United States: Provided fur-

ther, That no citizen or subject of any country who

has been or who may hereafter be proclaimed by the

President to be an alien enemy of the United States

shall be inducted for training and service under this

Act unless he is acceptable to the land or naval forces.”’

This statutory provision, it may be noted, enabled any

neutral alien who was unwilling to render military service

to the United States to be relieved from this liability,

whether or not the alien was also covered by a treaty

exemption as in Art. V of the treaty with Spain. Of course,

this was a matter within the discretion of Congress; and

the fact that the statutory provision for exemption was

ee

19

broader than that required by treaty in no way derogates

from the conclusion that the Spanish alien’s right under

Art. V of the treaty was fully protected under §3(a), as

amended, of the Selective Training and Service Act. The

clause in the first proviso of § 3(a), that any person who

made application to be relieved from such military service,

in accordance with regulations prescribed by the President,

“shall thereafter be debarred from becoming a citizen of

the United States’’, is not in conflict with Art. V of the

treaty, for nothing in Art. V, and indeed nothing in the

whole treaty, purports to impose any limitation upon the

power of the respective countries to formulate the condi-

tions of eligibility for naturalization. As the Supreme

Court stated in reference to a similar provision of the

treaty with Switzerland: ‘‘That the statute unquestion-

ably imposed a condition on exemption not found in the

Treaty does not mean they are inconsistent. Not doubting

that a treaty may be modified by a subsequent act of Con-

gress, it is not necesary to invoke such authority here, for

we find in this congressionally imposed limitation on citizen-

ship nothing inconsistent with the purposes and subject

matter of the Treaty. The Treaty makes no provsion re- —

specting citizenship.’’ Moser v. United States, 341 U. S.

41, 45 (1951).

It is suggested by appellant that the bar to naturalization

contained in the proviso of §3(a) was inconsistent with

certain other provisions of the treaty with Spain. We do

not think that this was so. But we do not stop to labor

the point, for even if it were so, it is prefectly well-settled

that provisions of a subsequent Act of Congress may, for

purposes of domestic law, supersede inconsistent provi-

sions of a prior treaty with a foreign country. See Head

Money Cases, 112 U. S. 580, 597-99 (1884) ; Pigeon River Co.

—

20

v. Charles W. Cox, Ltd., 291 U. S. 138, 160 (1934) ; Clark y.

Allen, 331 U. 8. 503, 508-09 (1947).

Appellant duly registered under the Selective Training

and Service Act of 1940. On October 21, 1944, he was di-

rected by his draft board to report for pre-induction physi-

cal examination.

The administrative regulation which had been issued

under authority of §3(a) of the Act required a neutral

alien, seeking to be relieved from military service, to exe-

cute DSS Form 301 (Application by Alien for Relief from

Military Service), which application form read in part as

follows: ‘‘I do hereby make application to be relieved from

liability for training and service in the land or naval forces

of the United States, under the Selective Training and

Service Act of 1940, as amended, in acordance with the Act

of Congress, approved Deember 20, 1941. I understand that

the making of this application to be relieved from such lia-

bility will debar me from becoming a citizen of the United

States. I have not filed a declaration of intention to become

a citizen of the United States.”’

It appears that in 1942 appellant’s brother, Jaime Bal-

lester Pons, upon receiving a notice to report for induction,

had sought to claim automatie exemption from service by

virtue of Art. V of the treaty with Spain. The draft board,

however, insisted that Jaime wotld have to execute DSS

Form 301 if he wished to be relieved from military duty.

Thereupon Jaime communicated with the Spanish Ambas-

sador to the United States seeking support for his claim that

it was unnecessary for him to execute DSS Form 301 in view

of Art. V of the treaty. However, on January 5, 1943, the

Spanish Ambassador advised Jaime to execute DSS Form

301, which he did.

When appellant received his notice to report for _pre-

induction examination, he at first sought unsuccessfully, as

=a

21

had his brother, to invoke the treaty without executing DSS

Form 301. However, he was informed by the draft board

that he would either have to make application for relief

under DSS Form 301 or else prepare for induction. On

November 2, 1944, appellant executed DSS Form 301 and

was placed by his draft board in category IV-C (Neutral

aliens requesting relief from training and service) ; a little

over one year later he was reclassified IV-A (Over the age

of liability for military service). The question is whether

the alien in thus applying to be relieved of liability to

military service rendered himself ineligible for subsequent

naturalization.

Appellant’s main reliance is upon Moser v. United States,

341 U.S. 41 (1951). In that case the resident alien was

exempted from compulsory military service by a provision

of the treaty with Switzerland. When the draft board

classified him I-A (Available for military service), the alien

sought the aid of the Swiss Legation in securing his defer-

ment in accordance with the treaty. The Swiss Legation

protested to the Department of State that the declaration

required of applicants in filing DSS Form 301 was incon-

sistent with the treaty right of Swiss citizens. The State

Department, assuring the Swiss Legation that the United

States had no intention of abrogating treaty rights, negoti-

ated an agreement with Selective Service Headquarters

upon a Revised Form 301 which omitted the waiver declara-

tion, though a footnote of the Revised Form did quote the

pertinent provisions of § 3(a). The Swiss Legation for-

warded to the alien a copy of this Revised DSS Form 301

which it requested him to execute. The letter of the Swiss

Legation assured the alien that ‘‘through filing of DSS

Form 301, revised, you will not waive your right to apply

for American citizenship papers.”? Under these cireum-

stances the alien signed the Revised Form 301, and his draft

a

22

board reclassified him IV-C. A finding of the district court,

accepted by the court of appeals and by the Supreme Court,

was to the effect ‘‘that petitioner signed the application for

exemption believing that he was not thereby precluded from

citizenship, and that had he known claiming exemption

would debar him from citizenship, he would not have

claimed it, but would have elected to serve in the armed

forces.’’

The Supreme Court held as a matter of law that § 3(a)

of the Act ‘imposed a valid condition on the claim of a

neutral alien for exemption; petitioner had a choice of

exemption and no citizenship, or no exemption and citizen-

ship.’’ (341 U.S. at 46) It could hardly be suggested that

this alternative was an unconscionable one, applicable as

it was not to aliens who were only temporary sojourners

in the United States, but only to resident aliens ‘‘who

sought the advantages of our life and the protection of our

flag.’’ McGrath v. Kristensen, 340 U.S. 162, 175-76 (1950).

But the Supreme Court read into § 3(a) the implication

that the bar to naturalization would not operate until the

alien had made an intelligent choice between the alterna.

tives presented, well knowing the legal effect of what he

did. For that reason, in order not to “‘entrap’’ the alien,

the Court held that he had not waived his right to apply

for future naturalization by having executed the Revised

DSS Form 301. ‘Petitioner did not knowingly and in-

tentionally waive his rights to citizenship. In fact, because

of the misleading circumstances of this case, he never had

an opportunity to make an intelligent election between the

diametrically opposed courses required as a matter of strict

law. Considering all the circumstances of the case, we

think that to bar petitioner, nothing else than an intelligent

waiver is required by elementary fairness.” (341 U.S. at 47)

The case at bar presents a significantly different picture

23

from that in Moser v. United States. No misrepresenta-

tions were made to Francisco Ballester Pons; he was never

deceived as to the legal effect of applying for relief from

military duty by executing DSS Form 301. In asking to be

so relieved, his only purpose, as his testimony showed, was

to avoid possible penalties under the Spanish law for enter-

ing the military service of the United States when he was

still under a conditional commitment to military service in

Spain in his capacity as a member of the Spanish Army

Reserve. The district court found, upon ample evidence,

that when appellant came to execute DSS Form 301, he

was ‘‘perfectly aware of the fact that by signing the form

he was forever debarring himself from American citizen-

ship.’’ The fact that this was the only way he could avoid

the obligation to report for induction did not constitute

such ‘‘duress’”’ as would negative ‘‘an intelligent election”’’

on his part; it was of the essence of the alternatives law-

fully presented to him that he ‘‘had a choice of exemption

and no citizenship, or no exemption and citizenship.’’ We

shall say no more in elaboration upon the inapplicability

of Moser v. United States to the case at bar, since the point

has been so fully and convincingly discussed in the opinion

of the district court. 119 F. Supp. 629.

When Congress by amendment in 1941 of § 3(a) of the

Selective Training and Service Act provided that ‘‘any

person who makes such application shall thereafter be

barred from becoming a citizen of the United States’’, it

omitted to make a corresponding amendment of the sub-

stantive provisions of the Nationality Act of 1940 (54

Stat. 1137) prescribing the conditions of eligibility for

naturalization. And § 3(a), along with the other sections of

the Selective Training and Service Act of 1940, as amended,

became inuperative and ceased to apply on the indicated

date in 1947, as provided in the Act of June 29, 1946 (60

24

Stat. 342). But meanwhile, on October 29, 1945 (59 Stat,

551), Congress had amended § 28(c) of the Immigration Act

of 1924 (43 Stat. 168) so as to include within the term

‘‘ineligible to citizenship’’ persons debarred from citizen.

ship under § 3(a) of the Selective Training and Service Act

of 1940, as amended; and it has uniformly been held that

in so doing Congress intended to continue in effect the dis-

qualification to naturalization in § 3(a) of the Selective

Training and Service Act. See Benzian v. Godwin, 168 F. 2d

952, 956-7 (C.A. 2d, 1948), cert. denied 335 U.S. 886 (1948),

If the matter were otherwise doubtful, it was set at rest

by provisions of the Immigration and Nationality Act of

1952 (66 Stat. 163), which became effective December 24,

1952 (66 Stat. 281). Appellant had filed his petition for

naturalization on the preceding December 16, 1952, on which

date he was ineligible to citizenship by virtue of the amended

§ 28(c) of the Immigration Act of 1924, as above stated.

The Immigration and Nationality Act of 1952 repealed the

Immigration Act of 1924 (66 Stat. 279). But § 405(b) of

the Immigration and Nationality Act (66 Stat. 280) pro-

vides that any petition for naturalization pending on the

effective date of the Act shall be determined in accordance

with the requirements of law in effect when such petition

was filed, except as otherwise specifically provided in Title

III. Turning then to Title IIT of the Act, § 315 thereunder,

captioned ‘‘Alien Relieved from Training and Service in

the Armed Forces of the United States because of Alienage

Barred from Citizenship’’, provides as follows (66 Stat.

242):

**See. 315. (a) Notwithstanding the provisions of

section 405(b), 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

25

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.

(b) The records of the Selective Service System or

of the National Military Establishment shall be con-

clusive as to whether an alien was relieved or dis-

charged from such liability for training or service be-

cause he was an alien.’’

This section would seem clearly enough to constitute an

absolute bar to citizenship, even for a person who had

petitioned for naturalization prior to the effective date of

the Act, and regardless of whether exemption from military

service was sought and obtained under the regulations pre-

scribed by the President pursuant to § 3(a) of the Selective

Training and Service Act, as amended, or by virtue of an

exemption contained in a treaty. In this respect the bar of

§ 315(a) of the Immigration and Nationality Act is wider

than that of § 3(a) of the Selective Training and Service

Act, and would have precluded appellant even if he had not

executed DSS Form 301 in claiming the exemption. It is

true that § 357 of the Immigration and Nationality Act

provides (66 Stat. 272) that nothing in Title ITI ‘‘shall be

applied in contravention of the provisions of any treaty

or convention to which the United States is a party and

which has been ratified by the Senate upon the effective

date of this Title’’. But as pointed out earlier in this

opinion, excluding from eligibility to citizenship resident

aliens who have chosen not to render military service to

the United States is not inconsistent with the treaty provi-

sions. Furthermore, in this connection the government calls

our attention to 4 101(a)(19) of the Immigration and

Nationality Act (66 Stat. 169), which provides as follows:

26

‘*(19) The term ‘ineligible to citizenship,’ when used

in reference to any individual, means, notwithstandi

the provisions of any treaty relating to military servi

an individual who is, or was at any time, permanentl

debarred from becoming a citizen of the United States

under section 3(a) of the Selective Training and Servs

ice Act of 1940, as amended (54 Stat. 885; 55 Stat. 844

or under section 4(a) of the Selective Service Act of

1948, as amended (62 Stat. 605; 65 Stat. 76), or under

any section of this Act, or any other Act, or under any

law amendatory of, supplementary to, or in substitutiog

for, any of such sections or Acts.’’ [Italics added.] |

The judgment of the District Court is affirmed.

(2264-0)

FFE EE OEE Re SR ETS ~ ee

851323—55 (1)

Pago

SS WOW 5 i ivenmn cen cquicnncanubenadnniens 1

i in cicic Wiuiw dv wadininun katie eniuche gies 1

= @uestion presented - . .-......-.-----.------------ 2

- Statutes and treaty provision involved -__----------- 2

I ios i ac nalain own amd aleomire mesicion maine 5

I ies n ices lamcom o-nieacslang ie sce pein tie 9

SAS EES RES oes PARR AC Moca Caan ES 13

a CITATIONS

' Cases:

a International Longshoremen’s Union v. Boyd, 347

es Oe ark in hs cease 10

Moser v. United States, 341 U.S. 41__---- 9,11, 12,13

a Shomberg v. United States, 348 U.S. 540___----- 10

_ Statutes and Treaty:

Immigration and Nationality Act of 1952, 66

Stat. 163 (8 U. S. C. 1101, et seq.):

Section 101 (a) (19) (8 U. S. C. 1101)__---- 3,11

Section 315 (8 U. S. C. 1426)___------ 3, 5,10, 12

Section 357 (8 U. S. C. 1489)__--_-------- 4,10

NN OE Chis i. os te tnddicvncuenmene 4

Nationality Act of 1940 (8 U.S. C. 710 (b))_--- 5

Selective Training and Service Act of 1940,

Section 3 (a), as amended, 54 Stat. 885 (50

U. S. C. App. [1946 ed.] 303 (a)), which was

repealed in 1947 (60 Stat. 342)____-_.--_---- 2,5

Treaty between the United States and Spain of

Friendship and General Relations signed July

3, 1902, and prociaimed April 20, 1903 (33

ct: SIGH), Actithe Vso niidcsicinGiemn de 4,12

nthe Supreme Cour ofthe Whated States

Octoser TERM, 1955

No. 157

FRANCISCO BALLESTER PONS, PETITIONER

v.

Unttep States oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. 15-

26, R. 87-98) is reported at 220 F. 2d 399. The

opinion of the district court. (R. 77-85) is re-

ported at 119 F'. Supp. 629.

JURISDICTION

The judgment of the Court of Appeals was

rendered on March 22, 1955. The petition for a

writ of certiorari was filed on June 16, 1955.

The jurisdiction of this Court is invoked under

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

» (1b.

2

QUESTION PRESENTED

Whether petitioner, a Spanish national who

sought and was granted exemption from mili-

tary service as a neutral alien, is debarred from

citizenship under section 315 (a) of the Immigra-

tion and Nationality Act of 1952.

STATUTES AND TREATY PROVISICNW INVOLVED

Section 3 (a) of the Selective Training and

Service Act of 1940, 54 Stat. 885, as amended (50

U. S. C. App. [1946 ed.] 303 (a)), which was

repealed in 1947 (60 Stat. 342), provided in

pertinent part:

Except as otherwise provided in this

Act, every male citizen of the United

States, and every other male person resid-

ing in the United States, who is between

the ages of nineteen and forty-five, at the

time fixed for his registration, * * * shall

be liable for training and service in the

land or naval forces of the United States:

Provided, That any citizen or subject of a

neutral country 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 applica-

tion to be relieved from such liability in

the manner prescribed by and in accord-

ance 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: * * *,

eNO NAM Me ce a PET AOE VRE MEET IR

3

The Immigration and Nationality Act 6f 1952, 66

Stat. 163 (8 U.S. ©. 1101, et séq.), provides ih perti-

nent part:

Section 101 (a) (19) (8 U.S. €. 1101) : TEES Ce

The term ‘‘ineligible to citizenship,’’

when used in reference to any individual,

means, notwithstanding the provisions of

any treaty relating to military service, an

individual who is, or was at any time, per-

manently debarred from becoming a citi-

zen 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

Selective Service Act of 1948, as amended

(62 Stat. 605; 65 Stat. 76), or under any

section of this Act, or any other Act, or

under any law ameridatory of, sipplemen-

tary to, or in substitution for, any of such

sections or Acts.

* * * * *

Section 315 (8 U.S. ©. 1426):

(a) Notwithstanding the provisions of

section 405 (b), any alien who applies or

has applied for exemption or discharge

from training or service in the Armed

Forces or in the National Security Train-

ing 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 per-

manently ineligible to become a citizen of

the United States.

cm

4

(b) The records of the Selective Service

System or of the National Military Estab-

lishment shall be conclusive as to whether

an alien was relieved or discharged from

such liability for training or service be-

cause he was an alien.

Section 357 (8 U. 8. C. 1489) :

Nothing in this title shall be applied in

contravention of the provisions of any

treaty or convention to which the United

States is a party and which has been rati-

fied by the Senate upon the effective date

of this title: * * *

Section 405 (b) of the Act [66 Stat. 280]:

” * * 2 >

Except as otherwise specifically provided

in title III, any petition for naturalization

heretofore filed which may be pending at the

time this Act shall take effect shall be heard

and determined in accordance with the re-

quirements of law in effect when such peti-

tion was filed.

- Article V of the Treaty between the United

States and Spain of Friendship and General Re-

lations signed July 3, 1902, and proclaimed April

20, 1903 (33 Stat. 2105), provides in pertinent —

part:

The citizens or subjects of each of the

High Contracting Parties shall be exempt

in the territories of the other from all com-

pulsory military service, by land or sea,

and from all pecuniary contributions in

—

lieu of such, as well as from all obligatory

official functions whatsoever.

STATEMENT ;

~ Petitioner, a 47-year-old merchant, presently

residing in Puerto Rico, was admitted to Puerto

Rico for permanent residence in December 1934

(R. 2,3). On December 16, 1952, he filed a petition

for naturalization in the United States Dis-

trict Court for the District of Puerto Rico alleg-

ing that in February 1938 he had married a

native-born American citizen and claiming the

exemptions granted to spouses of United States

citizens under the general provisions of the

Nationality Act of 1940 (8 U. S. CG. 710 (b))

(R. 2, 8).

~ “he Immigration and Naturalization Service

objected to the granting of the petition on the

ground that petitioner was ineligible for citizen-

ship, having incurred such disability under Sec-

tion 315 of the Immigration and Nationality Act

of 1952 (supra, pp. 3-4) and under Section 3 (a)

of the Selective Training and Service Act of 1940,

as amended (supra, p. 2) by applying for and

being granted exemption from military service

in the armed forces of the United States as a

neutral alien (R. 9, see also R. 61).

- It was shown at the hearings that petitioner

and his brother, Jaime, also an alien resident of

Puerto Rico, were members of the Spanish Army

Reserve (R. 63-64)? In 1942, when petitioner's

brother was called for service under the Selective

Training and Service Act of 1940, the Spanish

consul advised them that, in view of the 1902

Treaty between the United States and Spain, as

members of the Spanish reserve they could not

be compelled to serve in the United States Army

and did not have to execute D. S. S. Form 301, in

order to claim exemption from such service (R.

64). Thereupon the brothers went to the draft

board and explained their position on the draft

question. The Selective Service board granted

petitioner’s brother a deferment until he could

receive advice from the Spanish Ambassador in

Washington (R. 64). The Spanish Ambassador

wired that his efforts to secure automatie exemp-

tion for Jaime were unsuccessful and that he

should fill out the necessary forms (R. 42-47;

R. 64-65). The brother thereupon signed D. 8S. 8.

Form 301 and was released from military service

(R. 66).

When petitioner was called for military service

in 1944, he sought automatic exemption on the

basis of the 1902 treaty (R. 45). The draft

board advised him either to sign D. S. S. Form

301 or prepare to be inducted, and refused any

1This reserve consisted of all male Spanish nationals

living in countries of Spanish origin who by registration,

money payments and annual reporting were exempt from

Spanish military service, except in the event of total Span-

ish mobilization (Ex. III, R. 15-22, 20, 35-41).

9

defermént to permit petitioner to consult the

Spanish Ambassador (R. 68-69, 70-71). There-

upon on November 2, 1944, petitioner. executed

and filed with the board the standard D. 8. 8.

Form 301 (R. 71), which contained the following

statement (Ex. No. 1, R. 30-31, 30) :

I do hereby make application to be ré-

lieved from liability for training and serv-

ice in the land or naval forces of the

United States, under The Selective Train-

ing and Service Act of 1940, as amended,

in accordance with the Act of Congress,

“approved December 20, 1941. I under-

stand 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

intention to become a citizen of the United

States.

In 1945, while being examined by the Immigra-

tion and Naturalization Service, petitionér testi-

fied that he understood when signing D. 8. 8.

Form 301 that he would thereafter be barred

forever from becoming a citizen of the United

States, that he fully- understood the implications

of his action and that his action was entirely

voluntary (R. 10-13). In another such examina-

tion on March 29, 1951, in answer to whether he

ever had or now has the desite to become a’ citi-

zen of the United States, petitioner said “Before

now, I have not had the desire, but you ask me

from now on, I would say yes” (R. 21). Ih

Avril 1953, petitioner filed a statement with the

Immigration and Naturalization Service claim-

ing that when the question was asked, he mistook

the examiner’s use of the word ‘‘desire’’ for

‘decide’, and he answered accordingly (R. 14).

At the preliminary hearing on the petition for

naturalization, the following testimony was elic-

ited from petitioner (R. 27-28) :

Q. Did you realize the full consequence

of your act in signing this form?

A. I did but in order to be on record I

accompanied a letter invoking the treaty

between Spain and the United States.

* * * * *

Q. Did you understand that the bar to

becoming an American citizen would not be

for a specified period of time but would

be forever?

A. I was not sure because I was think-

ing that the treaty between Spain and

United States was still in force and I had

no alternative. It was either sign or go

to the training camp.

Q. What was your purpose in making

this application for relief from military

service ?

A. The purpose was that I was under

Spanish regulations and I thought that I

could not swear to another nation when I

was on duty to my own.

At the hearing on the petition, petitioner testified

that he asked for relief from military service

(R. 70):

9

Because neither morally nor legally could

I break my oath to the Spanish Army

without suffering penalties and conse-

quences of this act. It would also em-

barrass my parents who were living in

Spain. And it would have brought dis-

honor and other consequences which I

- thought I should avoid.

In answer to the court’s question as to whether

at the time he executed D. S. S. Form Ȣ1 he

intended to become an American citizen, peti-

tioner said that at that time he was a Spanish

citizen subject to the law of his country and he

could. not serve two countries (R. 72-75).

.’ The trial court denied the petition for naturali-

zation (R. 85). It held that the instant case was

not governed by this Court’s decision in Moser v.

United States, 341 U. S. 41, and that both Section

3 (a) of the Selective Training and Service Act

of 1941 as amended, and Section 315 of the Na-

tionality Act of 1952 barred petitioner from citi-

zenship (R. 78-84).

On appeal, the Court of Appeals affirmed the

judgment denying the petition for naturalization

(R. 98).

ARGUMENT

The sole issue before this Court is whether

petitioner is debarred from citizenship under

Section 315 (a) of the Immigration and Na-

10

tionality Act of 1952.7 While the Court of Ap-

peals found petitioner ineligible both under the

1952 Act and prior statutes (see Pet. 23-25), we

agree with petitioner (Pet. 13-14) that it is un-

necessary to consider more than the 1952 Act in

view of the language of Section 315 (a):

Notwithstanding the provisions of section

405 (b), any alien who applies or has ap-

plied 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 dis-

charged from such training or service on

such ground, shall be permanently ineligible

to become a citizen of the United States.

See Shomberg v. United States, 348 U. 8. 540.

Since petitioner sought and was granted exemp-

tion as a neutral alien, he is clearly debarred

from citizenship under the specific language of

Section 315.

Petitioner argues (Pet. 9-14) that Section

315 (a) does not apply to his case because Section

357, supra, p. 4, provides that ‘‘nothing in this

2 Petitioner seeks to inject into the case questions con-

cerning his right, as an alien, to travel to the United

States from Puerto Rico (Pet. 3, 11-12). That issué is

manifestly not here on petitioner’s application for admis-

sion to citizenship. Whether petitioner may properly be

excluded from the United States as a Spanish national

can be determined if he tries to enter continental United

States. International Longshoremen’s Union v. Boyd, 341

U. S. 222.

=

title shall-be applied-in contravention of the pro-

visions of any treaty or convention to which the

United States is a party”’, and that the Court of

Appeals erred in ruling that this general pro-

vision must be interpreted in the light of Section

“101 (a) (19) which specifically provides that the

term “‘ineligible to citizenship * * * means, not-

withstanding the provisions of any treaty relat-

ing to military service, an individual who is, or

was at any time, permanently debarred from be-

eoming a citizen of the United States under

section 3 (a) of the Selective Training and

Service Act of 1940, as amended * * *,? The

question of whether Section 315 overrules pro-

visions of prior treaties is not even reached since,

as the Court of Appeals also ruled (Pet. 25),

“excluding from eligibility to citizenship resident

aliens who have chosen not to render military

Service to the United States is not inconsistent

with the treaty provisions.’? This Court said in

Moser v. United States, 341 U. §, 41, 45, with

respect to the Treaty of 1850 between Switzerland

and the United States: |

That the statute unquestionably imposed

a condition on exemption not found in

the Treaty does not mean they are in-

consistent. * * * we find in this congres-

sionally imposed limitation on citizenship

nothing inconsistent with the purposes and

subject matter of the Treaty. The Treaty

makes no provision respecting citizenship.

12

In this respect, the Spanish treaty is like the

Swiss treaty. It grants the nationals of one

country the right to be free from military service

in the other. It does not deal with the right of

nationals of either country to become citizens of

the other. Here, as in Moser, there is no incon-

sistency between Section 315 which deals solely

with naturalization and Article V of the 1902

treaty which frees nationals from ‘‘compulsory

military service.’’*

Petitioner argues that Article V of the Spanish

treaty, by exempting Spanish nationals from com-

pulsory military service “as well as from all

obligatory official functions whatsoever’, in effect

placed them outside the coverage of the draft law

and made it unnecessary for them to claim draft

exemption. Section 315 (a), however, provides,

as a condition precedent to the creation of the

disability, merely that the exemption should be

claimed and received. It does not even specify

the manner in which the claim should be made.

The claim of exemption is clearly not an “‘obliga-

tory official function” from which petitioner was

excused under the treaty.

* For a more complete background, history and analysis

of the relationship between debarment from citizenship

as a consequence of a claim to exemption from military

service and treaties covering exemptions from military

service, we respectfully refer the Court to our brief in

Moser v. United States, October Term 1950, No. 301,

pp. 38-79.

13

Although it is true that the 1902 treaty here

involved, unlike the Swiss treaty, did not ex-

pressly exclude from its coverage political rights

(see Pet. 11), that difference is not significant.

As the government pointed out in its brief in

Moser v. United States, October Term 1950, No.

301, p. 33, this exclusion is properly implied even

if it is not express. Moreover, that distinction

has no bearing on the issue here involved.

Accordingly, it is clear that Section 315, by im-

posing a bar to citizenship as a consequence of

exemption from military service, did not contra-

vene any rights granted to petitioner under Arti-

cle V of the 1902 Spanish treaty. Since he know-

ingly claimed exemption, with full awareness of

the consequences, he is debarred from citizenship

under Section 315 (a).

CONCLUSION

For the reasons stated, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

Smion E. Sosexorr,

; Solicitor General.

Warren Otyey ITI,

Assistant Attorney General.

BEatRIcE ROSENBERG,

Feticia Dusrovsky,

. Attorneys.

JULY 1955.

©. S. GOVERMENT PRINTING OFFICE: teE8