Brief for the Respondent in Opposition — Giz v. Brownell (No. 832)

ee

ee

ee

ee

_ Ceballos v. Shaughnessy, No. 71, this Term, decided March

SRS See er eerreerircere se eo 8, 10

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

SN I Soon ins sc ic ss na dnwncatnasdanusieens 9

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

Smead, 945 US. 918 ..... ccc ccc cece ccc neecencee 9

- McGrath v. Kristensen, 340 U.S. 162 ................225. 7,8

- Moser v. United States, 341 U.S. 41 ........0c eee eeeeeeee 7

Francisco Ballester Pons v. United States, 220 F. 2d 399,

- certirorai denied, 350 U.S. 830 ............... ccc eens 8

STATUTES AND REGULATIONS:

Act of December 20, 1941, 55 Stat. 844 ............00000. 3

Immigration Act of 1924, Sec. 28(c), as amended by the

Act of October 29, 1945, 59 Stat. 551, 8 U.S.C. (1946 ed.)

MEMMA(]) ccc re cccccccccceseccccncceccccesecccceecess 15

Immigration and Nationality Act of 1952, 66 Stat. 163,

8 U.S.C. 1101 et segq.:

Oh EAS CMOD rac cas ddadunsdheh nade nsesenen 15

BED: Sekdaeyicaccks es Goaeeen cee kiwecekbun 16

Index Continued

Page

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

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

BORA) coi cco cscescccccccvcscccccnsecsccecces 2, 3, 7, 9, 12

Selective Service Regulation 611.13, as amended July 8,

1943 (8 F.R. 9861) ...... 2... cece eee eee eee eee eeee 13

Selective Service Regulations:

Section 611.12 (7 F.R. 855) .. 6... cece ee eee eee ees 5, 9, 12

G1L.18 (7 FR. 655) ..... www cesscccccncves 5, 9, 12

611.21 (7 F.R. 2084) ....... cece eee ee eee eens 5, 14

Guthe Supreme Court of the Wnited States

OcToBER TERM, 1956

No. 832

MEHMET SABAHITTEN Giz, Petitioner

Vv.

HERBERT BROWNELL, JR.,

ATTORNEY GENERAL OF THE UNITED StTaTEs

Sea!

On Petition For a Writ of Certiorari To The United States

Court of Appeals For The District of Columbia

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinions in the Court of Appeals (Pet. 18-24)

are reported at 240 F. 2d 25. The opinion of the

District Court appears at pages 57-59 of the record.

JURISDICTION

The judgment of the Court of Appeals was entered

December 13, 1956 (Pet. 24-25). The petition for a

1

2

writ of certiorari was filed on March 12, 1957. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

Petitioner, a Turkish national, applied for exemp-

tion from military service as a neutral alien in

December 1942, when regulations of the Selective

Service System provided that every male alien then in

the country should be deemed to be ‘‘residing’’ here

(and thus subject to the draft) if, before May 16, 1942,

he failed to file an application to have his ‘‘residence”’

determined. Petitioner had not made such application

when he applied for the exemption which was granted

to him, but two years later he made an untimely appli-

cation to be determined a non-resident, which was

denied.

The questions are:

1. Whether petitioner signed the Selective Service

exemption form, in December 1942, voluntarily and

intelligently.

2. Whether, in the circumstances of this case, peti-

tioner had a right to relitigate before the Immigration

and Naturalization Service the issue of whether, when

he signed the exemption form, he was a ‘‘resident”’

within the meaning of Section 3 (a) of the Selective

Training and Service Act of 1940 and thus subject to

the draft.

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of the Selective Training

and Service Act of 1940, the pertinent Immigration

Acts, and the applicable Selective Service regulations,

are set forth in the Appendix, infra, pp. 12-16.

3

STATEMENT

Petitioner seeks review of the judgment of the Court

of Appeals affirming the denial by the District Court

of his action for declaratory relief and review of the

immigration proceedings finding him subject to de-

portation and ineligible for suspension of deportation

or pre-exarmination on the ground that he was debarred

from citizenship under Section 3(a) of the Selective

Training and Service Act of 1940, by virtue of the fact

that on December 31, 1942, he sought exemption from

liability to military training and service as a resident

alien and citizen of a neutral country.

Petitioner, a native and citizen of Turkey, was

admitted to the United States on November 9, 1939,

as a student (R. 59, 62). On December 16, 1940, he

registered for the draft and shortly thereafter was

classified IV-C (exempt as a non-declarant alien),

since Section 3(a) of the Selective Training and Serv-

ice Act of 1940 (54 Stat. 885) originally made only

those alien residents who had declared their intention

to become citizens liable for service. The Act of De-

cember 20, 1941 (55 Stat. 844, 845), passed shortly

after our entrance into World War II, amended Sec-

tion 3(a) of the Selective Service Act to make ail male

persons ‘‘residing in the United States’? between the

ages of twenty and forty-five so liable, with a provision

‘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

?The symbol ‘‘R’’ will be used to designate the pagination of

the record, and the symbol ‘‘Immig.’’ to designate the pagination

of the immigration file lodged as an original exhibit with the Court.

4

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 appli-

cation shall thereafter be debarred from becoming a

citizen of the United States.”’

On December 31, 1942, petitioner executed D.S.S.

Form 301 claiming exemption from service as a res-

ident alien and citizen of the then neutral country of

Turkey (Immig. 96; R. 59, 62). This form contained

the following statement on its face (Immig. 96;

Pet. 23):

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, in

accordance with the Act of Congress, approved

December 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.

{Emphasis added.]

Petitioner’s explanation of the signing of the form

was that, while a sophomore in dental school, he re-

ceived from the local Selective Service Board a request

for his appearance. While at the board, he heard two

Turkish boys arguing with the clerk of the board and

heard her tell them that if they signed the form they

would be relieved. He said, ‘‘It sounded to me very

reasonable to sign this paper because my program to

study was so heavy and by signing that I would not be

bothered again and so I signed, by suggestion of the

clerk’’ (see R. 64).

5

The then current Selective Service regulations pro-

vided that every male alien in the United States or

entering it thereafter should be deemed to be a ‘‘male

person residing in the United States’’ for the purposes

of the Selective Service law if, before May 16, 1942

or within three months after his entry, he failed to file

an application to have his residence determined.? Peti-

tioner had made no such application at the time he

filed his application for exemption in December 1942.

On his filing of Form 301, petitioner was continued in

Class IV-C as a diaft-exempt alien (R. 62).

On May 31, 1944, petitioner filed an application for

a certificate of non-residenece (R. 22, 45-46, 59) which

was denied by his local Selective Service Board on

June 27, 1944 (R. 59, 62), and on July 11, 1944 he was

classified II-A (medical student deferment) (R. 62,

70). On August 25, 1944, petitioner was notified by his

local board that the Director of Selective Service had

considered his request for non-resident status and had

determined that he was ‘ ‘a male person residing in

the United States’ within the meaning of Sections 2

and 3 of the Selective Training and Service Act of

1940”? (R. 63).

From the time of his entry in 1939 to 1944, petitioner

was a student, completing a course at a junior college,

® Section 611.12, 7 F.R. 855, infra, p. 12; Section 611.13, 7 FR.

855, infra, pp. 12-13; Section 611.21, 7 F.R. 2084, infra, pp. 14-15.

This latter regulation which became effective March 17, 1942, pro-

vided that if a non-declarant alien had legally entered the United

States prior to February 16, 1942, and desired to have a deter-

mination of residence made he must have filed such application on

or before May 16, 1942. Petitioner thus had from March 17,

1942 to May 16, 1942, to make such an application but he failed

to do so.

6

and graduating from dental school in October 1944

(Immig. 60), after which he took a postgraduate

course in dental surgery (Pet. 21). He took the exam-

ination entitling him to practice dentistry in April

1945 (Immig. 60). During this entire period, he had re-

ceived extensions of his visa until July 21, 1945,

beyond which date he remained in the United States

illegally without seeking a further extension (R. 62).

Novertheless, he opened an office for the practice of

dentistry and was practicing that profession at the

time of the immigration proceedings (Immig. 58).

Turkey became a co-belligerent in February 1945,

and petitioner was classified 1-A and ordered to report

for a preinduction physical on July 26, 1946 (R. 59;

Immig. 110). He was subsequently rejected because

of alienage (Pet. 12). He made an effort in 1947 to

have his D.S.S. Form 301 withdrawn from his Selec-

tive Service record, and his local board, in a letter to

the State Director of Selective Service dated March 11,

1947, recommended that this be permitted (R. 69-70;

Immig. 97). On March 17, 1947, the State Director

informed the local board that this was not permissible

under the statute or the existing regulations, pointing

out also that petitioner, an educated man, was aware

of the implications of his signing the form from the

specific statement thereon that the signing would debar

him from citizenship (Immig. 109).

In 1947, the deportation proceedings were instituted.

The Assistant Commissioner and the Board of Immi-

gration Appeals held that petitioner was deportable

and was also statutorily ineligible for citizenship

because of his application for exemption from service,

and, accordingly, was ineligible for suspension of

deportation (Immig. 2-9, 17-18).

ual

Although he was granted voluntary departure, peti-

tioner filed an action for declaratory relief in the Dis-

trict Court claiming that he had not been “residing

in”’ in the United States within the meaning of Section

3(a) of the Selective Training and Service Act of 1940

and therefore was not bound by the provisions of the

Selective Service form, and of the 1940 Act, debarring

him from future citizenship. See McGrath v. Kristen-

sen, 340 U.S. 162. After trial and oral argument, the

district judge entered findings of fact and conclusions

of law and ordered judgment for the defendant (R.

59-60). On appeal, the District Court’s judgment was

affirmed by a majority of the Court of Appeals; J udge

Bazelon, dissenting, would have remanded the case for

further administrative proceedings on the question of

petitioner’s residence status (Pet. 18-25).

7

ARGUMENT

1. Petitioner contends that when, on December 31,

1942, he executed Selective Service Form No. 301,

applying for exemption from military service as a

resident alien and citizen of a neutral country, he, like

the petitioner in Moser v. United States, 341 U.S. 41,

was unaware of the implications of his act, and did so

on the suggestion of a clerk at his local draft board.

As both the Board of Immigration Appeals and the

two courts below have held,’ this claim has no founda-

tion in this record. Petitioner’s own testimony at the

immigration hearing shows that, in executing the

form, in the midst of World War II, he was primarily

interested that he (R: 64) ‘‘not be bothered again”’ by

Selective Service demands since they threatened to

* On this issue, the Court of Appeals was unanimous (Pet. 20-21).

interrupt his studies (he was then a second-year

dental student), and that, after hearing a con-

versation between the board clerk and two other

students who claimed to be citizens of Turkey, a

neutral country, he procured the D.S.S. Form 301 and

executed it. The record refutes any suggestion that

the clerk misrepresented the legal effect of signing the

form. According to his own testimony, she merely

stated that the form would relieve him from an obli-

gation to serve (R. 64-65).

The form signed by petitioner plainly bore on its

face the qualification that one who applied for ex-

emption from military service as a resident alien and

citizen of a neutral country would be barred from

citizenship (Immig. 96). Supra, p. 4. Petitioner,

an educated man, who was then a student in a graduate

school, clearly was apprised of the consequences of

his act and knew what he was doing when he executed

the form. There is in this case even less substance to

the claim of mistake than in Ceballos v. Shaughnessy,

No. 71, this Term, decided March 11, 1957, where that

petitioner claimed that in executing the form he did

so ‘‘in the belief that he was required to do so to obtain

assignment to a Latin American contingent of the

United States Army”’, [bid., slip op., p. 5, fn. 11. Here,

as there, the Board of Immigration Appeals found

that petitioner (ibid.) ‘‘fully understood the legal con-

sequences of his action and that he was not duly in-

fluenced by other considerations.” And see Francisco

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

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

2. Petitioner erroneously seeks to bring his case

within the holding of McGrath v. Kristensen, 340 U.S.

9

162, by arguing that, although he executed the D.S.8.

Form 301 as a resident alien and citizen of a neutral

country, he was in fact a non-resident within the mean-

ing of Section 3(a) of the Selective Service Act (infra,

p. 12), and therefore unaffected by the citizenship

bar which the execution of that form would otherwise

impose.

At the time petitioner executed D.S.S. Form 301,

there were in effect Selective Service regulations

(Sections 611.12 and 611.13, infra, pp. 12-13), which

ruled that every male alien then in the country,

or entering it thereafter, should be deemed to be

“‘residing’’ here, if, before May 16, 1942, or within

three months after his entry, whichever was iater,

he did not file an application to have his **resi-

dence’’ determined. Petitioner, who executed Form

301 on December 31, 1942, had been eligible between

March 17, 1942, and May 16, 1942, to make such an

application but had failed to do so. See fn. 2, supra,

p. 5. He therefore was deemed a “resident”? when

he executed Form 301 in December 1942, as the courts

have expressly held in comparable cases. Mannerfrid

v. United States, 200 F. 24 730 (C.A. 2), certiorari

denied, 345 U.S. 918; Machado v. McGrath, 193 F. 24

706, 708 (C.A. D.C.), certiorari denied, 342 U.S. 948.

Kristensen, on the other hand, had claimed exemption

between February 7 and May 17, 1942, at a time when

he still had an opportunity to apply for the determi-

nation of his residence, and until that latter date ‘“‘he

was in the same category as the newly arrived non-

declarant alien who, under the regulations and the Act,

did not become a resident for three reonths.”’ 340 U.S.

at p. 174.

10

Petitioner contends that, notwithstanding his fail-

ure to make a timely request for a ruling on his

residence, the question of his status as a resident

should now be deemed open because in May 1944 he

filed an untimely application for a determination of

residence which was considered by the Director of

Selective Service. But on that subsequent consider-

ation the Director determined that petitioner was a

resident, and did not change his status. This confirm-

ing decision on the merits cannot be said to be a waiver

of the requirements of timely filing under which peti-

tioner was barred. He was in no way misled or injured

by the later consideration.

Moreover, in Benzian v. Godwin, 168 F. 2d 952 (C.A.

2), certiorari denied, 335 U.S. 886, the case upon which

petitioner particularly relies (Pet. 9), the court held

that such a determination by the Director of Selective

Service, if it had basis in fact, was not subject to re-

view by the courts. Here, the fact that the Director

‘‘affirmed in 1944 what the law had already deter-

mined, that Giz had been a resident for the purposes

of the Act’’ (Pet. 24), and denied him a Certificate of

Non-Residence, does not demand relitigation of the

issue of his 1942 residence in further immigration pro- —

ceedings, eighteen years after his entry into this

country, and over fourteen years after execution of

the Selective Service form. The facts stated above

(supra, pp. 3-6) and in Judge Danaher’s opinion in

the Court of Appeals (Pet. 20-24) show that there was

4 Judge Bazelon agreed with petitioner on this point (Pet. 20).

ee

11

a clear basis in fact for the Director’s decision as to

residence.*®

CONCLUSION

It is respectfully submitted that the petition for a

writ of certiorari should be denied.

J. Lez Rank,

Solicitor General.

Warren Oxney III,

Assistant Attorney General.

BEatRICE RosENBERG,

Cart H. Imnay,

Attorneys.

APRIL 1957.

* Petitioner’s attempt to enlist in 1946 after he had been placed

in Class 1-A, following Turkey’s co-belligerency, did not alter the

effect of his claim to exemption as a neutral alien. Ceballos v.

Shaughnessy, No. 71, this Term, decided March 11, 1957.

12

APPENDIX

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), provided:

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 * * *

shall be liable for training and service in the land

and 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 appli-

eation 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 * * *

Selective Service regulations in force in December

1942 provided:

§ 611.12 When a nondeclarant alien is residing

in the United States. Every male alien who is now

in or hereafter enters the United States who has

not declared his intention to become a citizen of

the United State, unless he is in one of the cate-

gories specifically excepted by the provisions of

§ 611.13, is ‘‘a male person residing in the United

States’’ within the meaning of section 2 and sec-

tion 3 of the Selective Training and Service Act

of 1940, as amended. [7 F.R. 855]

§ 611.13 When a nondeclarant alien is not resid-

ing in the United States. (a) A male alien who is

now in or hereafter enters the United States who

has not declared his intention to become a citizen |

of the United States is not ‘‘a male person resid-

ing in the United States” within the meaning of

13

section 2 or section 3 of the Selective Training and

Service Act of 1940, as amended:

* * *

has entered or hereafter enters the United States

in a manner prescribed by its laws and remains in

the United States after May 16, 1942, or for more

States’’ within the meaning of section 2 or section

3 of the Selective Training and Service Act of

1940, as amended, in either of which events he

§ 611.21 What aliens may apply for a determi-

nation. (a) Within the time specified in para-

*An amendment to Selective Service Regulation 611.13

which became effective July 8, 1943, provided in pertinent

part (8 F.R. 9361);

§ 611.13 When a nondeclarant alien is not residing in the

United States. (a) A male alien who is now in or hereafter

enters the United States who has not declared his intention

14

graph (b) of this section, a nondeclarant alien

who has entered or hereafter enters the United

States in a manner prescribed by its laws may file

with his local soaed (if he is registered) or with

the local board where he is at the time located (if

he is not registered) an Alien’s Application for

Determination of Residence (Form 302), request-

ing that the local board determine whether he is

‘ta male person residing in the United States”

within the meaning of section 2 and section 3 of

the Selective Training and Service Act of 1940,

as amended. An Alien’s Personal History and

Statement (Form 304) must be filed with such

application.

(b) An Alien’s Application for Determination

of Residence (Form 302) must be filed within the

following time:

to become a citizen of the United States is not ‘‘a male person

residing in the United States’’ within the meaning of section

2 or section 3 of the Selective Training and Service Act of

1940, as amended ; provided he has in his personal possession

an official document issued pursuant to authorization of or

described by the Director of Selective Service which iden-

tifies him as a person not required to present himself for and

submit to registration and provided:

* e &

(7) He has, within the time prescribed and in the manner

provided in § 611.21, filed with the local board with which

he is registered, or if he is not registered, with the local

board having jurisdiction over the area in which he ~

is located, an Alien’s Application for Determination of Resi-

dence (Form 302), together with an Alien’s Personal History

and Statement (Form 304), and such application is either

pending or has resulted in the issuance by the local board

of an Alien’s Certificate of Nonresidence (Form 303) which

has not expired; * * *.

15

(1) If a nondeclarant alien has entered the

United States prior to February 16, 1942, in a

manner prescribed by the laws of the United

States and desires to have a determination made

under the provisions of paragraph (a) of this sec-

tion, he must file such application on or before

May 16, 1942; or

(2) If a nondeelarant alien enters the United

States on or after February 16, 1942, in a manner

prescribed by the laws of the United States and

desires to have a determination made under the

provisions of paragraph (a) of this section, he

must file such application within 3 months after

the date of his entrance into the United States.

[7 F.R. 2084].

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

amended by the Act of October 29, 1945, 59 Stat. 551,

8 U.S.C. (1946 ed.) 224 (ce) provided:

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

in reference to any individual, includes an indi-

vidual who is debarred from becoming a citizen

of the United States under * * * section 3 (a) of

the Selective Training and Service Act of 1940,

as amended (55 Stat. 845; U.S.C., title 50, App.

Supp. III), section 303 (a), or under any law

amendatory of, supplementary to, or in substi-

tution for, any such sections; * * *,

The Immigration and N ationality Act of 1952, Sec-

tions 101 (a) (19) and 315, 66 Stat. 169, 242, 8 U.S.c.

1101 (a) (19), 1426, provide:

[$101 (a)] (19). The term “ineligible to

citizenship,”” when used in reference to any indi-

vidual, means, notwithstanding the provisions of

any treaty relating to military service, an indi-

vidual who is, or was at any time, permanently de-

barred from becoming a citizen of the United

States under section 3 (a) of the Selective Train-

16

ing 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 * * *.

[§ 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 Corps of the United States on

the ground that he is an alien and is or was re-

lieved 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

conclusive as to whether an alien was relieved or

discharged from such liability for training or

service because he was an alien.

4 U. S. GOVERNMENT PRINTING OFFICE 1957—422206/P.0. 1073