Brief for the US in Opposition — Skender v. United States (No. 644)

BY

No. 644

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os ceetapaiomeneacl we SE ER ee

In the Supreme Court of the United States

Oeropern Term, 1957

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SOOREN ALEXANDER SKENDER, PEMTIONER

co

U.

UNITED STATES OF AMERICA

iN. -PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF gAPPEALS FOR YVHE SECOND Creer

BRIEF FOR THE UNITED STATES PW oPMosIT/ON

_ J. LEE RANKIN,

RUFUS D. McLEAN, fre kee

Acting Assistant Attorney renova!

BEATRICE ROSENBERG,

WILLIAM J. SCHAFER IIt.

a Attorneys

Department of Jaastice, Wusehineton 24, Th. ¢

INDEX

Opinion below \

Jurisdiction }

Questions presented

Statutes involved

Statement

Argtunent

Conclusion

~—

CTTATIONS

* Cases:

Ceballos v. Shaughnessy, 362 U.S. 599

Cuozco, In re Naturalization of, 6 KF. 2d 184.

Mir sorf 's Petition, In re, 143 Fo Sapp. 177-.

Pons y. United States, 220 F. 2d 399, certiorari de aaa

350 U.S. 850

Rosie v Shaughne asy, 134 KE Supp. 217.

Statutes; /

Immigration and Nationality Act of 1032,

164, ef seq.:

Sec. 101 (a) (8S ULS.OC. 1101 (ad)

Sec. S15 (a) (S ULS.C. 1426 (a))

2315 (tb SU. 8. C, 1426 (b')

See. 405 ch)

Selective Training and Service Aet of 1940,

SS). as amended. 55 stat. 844 (56 LOS. ©

146 ed BO (a iT See, F (n

Select weAgery ia Regulations, See, 022. 45

ist

HH) Sti

54 Stat

App J

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Yn. the Supreme Court of the United States

OeroBer TERM, 1957

No. 644 .

SOOKEN” ALEXANDER SKENDFR,*PETITIONER

v. * - {

UNItTeD STATES OF AMERICA

¢

ON PEPITION FOR A WRIT OF CERTIORARI TO THE UNITEL

STATES COURT OF APPEALS FOR THE. SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Anpeals is reparted at

248 F.2d 92 (C. A.2).

JURISDICTION

The judgment of the Cow of Appeals was entered

on September 6, 1957. The petition for a writ of b

certiprarn: was filed 6n December 5, 1957.- The juris-:

diction of this Court is invoked under 28 UL SL ©.

QUESTIONS PRESENTED

1 Whether an alien who knowingty applied for r@

hef from military service on the cround that he was

a neutrar anen, and Was Impact rei ved PP Oon) Veiga tears

training on that ground for sesen dionths, is debarred

from eitizenship under Section GH Ca) of the Lmni-

gration and Nationality. Act of PO52. even though his

country had ceased to be neutral nine days before jis

” classifies tion,

2: Whether the goverment attorney wrongfully

and prejudieialiv Withheld Prom: evidence a letter

written by the Selective Service Svstem to the Tmmi-

eration and Naturalization Service statingthat peti

tioner’s exemption became nubland voidion Pane 3, 1943.

STATUTES INVOLVED

Section 265 of the Pnunieration snd Nationality Act

of 1952, 66 Stat. 242 (8 ULS. C. 1426) provictes :, eae

See. 31D Ca) Notwithstanding the provisians

: : ; ee ee

Of scetion 405 (hb), anyoahen whe capplie—or

has applicd for exemption or discharge from

traning or service ta the Armed Forces or in

the National Security Training Corps of the.

United States on the @round that he w an alien:

cand is or was reheved or discharged from sireh

training or service on such cround, shall be per:

nianenths mieloublbe ty becorne it Citizen of the

c Lonited States, :

(ty) The records of the Selective Service Svs

tem or of the National Military: Establishment

thall be conclusive asta whether an atien was:

: heved sor discharged from -sneh habilitv. for

g at ug hy hig plac,

ss P Select rain lf Sengice Act

t 1940, 54 StatcSS5, 4 35 Stet. S45 st oS

Lop. 1946 ed., Bug ed: *» 3

—__]j

a

f

See, a | a) I ACE pteas othe WISE pray ide dy in this

Act every male citizen of the United States, and

every other mate person residing inh the United

States, who is between the aves of twenty and

forty-tive at the time fixed for his registration,

or Who atu is the age of twenty after having

heen required to revister Pursuant to section 2

of this Act, shall be liable. for training and

service inthe land or naval ferces of the

Coited States: Provided, That any citizen or

inyeet of a neutral country shall be relieved

from dinhility. for frainine and service under

this Act if, prior to his induction inte the land

or naval forees gp has made application to be

reheved from sneh liabil ityoin the manner pre-

scribed by and in aceordanee: with rules and

reenlatfons-| prescribed a! the Prosid@™t, buts any

person Who makes sie h@pplication shall there-

atter be debarred fF becoming a citizen of

the United StatBs. * * + =

STATEMENT

Petitioners a native and national of Prag, entered

the United States for permanent residence on Oetober

Asa

i anes. ritendine to attend sehoo] here (R. &a- 98),

; mite alien residiy nfm the United States, he was

subject to registration and military seyvier under the

Selective Praanine and Service Act of 1246, as amended

hd

7 B.C. App., 1946 ed. 301, ef seq.).’

WH,

(byt

He Traq was still a heubradl country. petitioner.

ber ol, 1942. filed With his lees] draft hoard

€

S. Born OO], Avpheation bv Afien for Rehef

ee be ee ; demi) “ers ee a

PHITry Nerves (Ro On). fr: this appleation,

4

subseribed and sworn to before a notary. public, peti-

tioner declared (Gov't. Exhibit No. 3)

I do hereby make application to be relieved

from hability for training and service in the

land or naval forces of the United States, under

the Selective Training and Service Act of 1948,

as amended, in accordance with the Act of Con-

CYeESS, approved December 20, 1941. I under-

stand tliat the making of this application to be

relieved from such hability will debar me from

hecoming a citizen of the United States * * *,

In accordance with this request, petitione® was ©

classified TV-C on January 25, 1943 CR. 3a).

Nine days before petitioner was elassified IV-C,

Iraq’ declared war on the Axis forces. It was not

until June 3, 1943, however, that Selective Service

Regulations took cognizance of this facet (R. 4a). And

it was not until August 31, 1948, seven months after

he was classified [V—C, that petitioner ‘was reclassified

I-A, making him subject to immediate induction

(R. 4a). ; |

Petitioner appealed from the eoclanadfics tion stating

that his exemption from military duty (D.S.S. Form

301) was valid and could™iot be declared invalid ex-

eept by Congress (R. 4a). The appeal was denied,

and petitioner remained in Class T-A (R. 14a). He

was then given a pre-induction physical examination,

asa result of which it was deterrained that, for physi-

cal reasons, he should be reclassified IV-F and de-

ferred from military service (R, ¢ 4a). ;

On June 24, PO47, petitioner filed a petition for

naturalizationg (R. 2a}. At a final hearing on this

wv

petition in the United States District Court for the

Southern District of New York, the district judge,

having heard petitioner testify, concluded that peti-

tioner acted knowingly when he requested anq filed

Form 301 (R. 20a). The petition for naturalization

was-denied (R. 21a). Petitioner ther appealed to the

United States Court of Appeals for the Seeond Cir-

cult (R. 22a), and that court affirmed the decision of

the district court.

ARGUMENT

The question raised in petitiouer’s first point as

tu whether Section 315 (a) of the Immigration and

Nationality Act of 1952 (8 U.S. C. 1426) or Section

3 (a) of the Selective Service Training Act of 1SY0

(90 U.S. C. App., 1946 ed., 303 (a) ) governs appliea-

tions for naturalization under the 1952 Act is not in-

voived in this ease. The government presented its

case in the district court on the theory that the gov-

ermning statute was ‘tion 315 (a) of the Immigra-

tion and Nationality Act of 1952 (8 U.S. @. 1426),

which denies naturalization to an alien who had both

' Phe question arises fron an ap spare nt inconsistency in the [m-

Migration and N; ationahity Act of 1952. Sections 315 (a) and 405

(hb) appear to have made the conditions of Section 315 (a) con

trolling in naturalization. \ Section 10] (a) 19), however, de-

fines asf"ineligible té citizenship” any alien whe is.or was at

any tine permanently debarred under any section of the 1952

Act “or any other Act.” Under the 1940 Act, a niere applica

tion for @xemption as a neutral alien was ci bar to citizenship.

Cvhalloxr vo Nhauaghie wy. 392 US. 499. Courts have taken the

position that the requirements of Section 3U4 and not these of

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

apply.in a case like the instant-one:> Pons wo Dusted States, 220

FY, 2d 399 (CA. 1). certiorari denied, 350 0S. s30: Jn re Mir

2008 s Petition. VAS F. Supp. i77 (S. DON. ¥.5

6

applied for éxemption from military service on’ the

evound of alienage and been relieved from military.

duty on that ground. Had Section 3 (a) been deemed

appheable, petitioner could only have been disadvan-

tnved, for, under that section, the mere filing of an

application by one wha was, at the tine of such filme,

a neutral eperates as a bar. Ceballos v. Shaughnessy,

panne Scetion 315 (a) as controlling, the lower

courts. found: (1) that petitioner knowingly asked

for exemption from military duty on the ground that

he was an alien; and (2) that petitioner was granted

relief frome suely service for a period of 7 months

(from January 25,1943 to August 31, 1943) because

of lis alienage.

2, Petitioner contends (Pet. 7-9) that he was not

exempted from traming or service mm the armed forces

upon the ground that he was an ahen, as required by

Section 315 (a) of the Immigration and Nationality

Act of 1952, but that he was reheved from service he-

eanse of a plivsieal defect. Therecord clearly refutes

_ this contention,

The fact that petitioner Knowimely filed and signed

Porn SOL requesting rehef from serviee is net open

to contest, aT restponse ta petitioners request, the

local draft beard, on January 25, 1943, elassitied him

PVC. the classification for an alien whe “at anv time

prior to (.N) his indnetion * * * files with his local

board an appheation by Atien for Relief from: Mahe

tary Service (Form 301) * * *°, Selective’ Service

Reoulations o OPRAG Prom that date unt Angust.31,

a ' . i

4 MONTHS COVeTINEG a verv eritiedt

7

stage of the war, petitioner was relieved from serving

in the armed forces because of alienage. The fact that

he was later deferred for physical reasons (after

being reclassified I-A) is immaterial beeanse, no mitt-

ter what happened after August 31, 1943, for 7 months

before that date petitioner “was relieved * * * from:

** * service * * *’* because of alienage within the

purview of Section 315 of the Immigration and Na-

tionality Act of 1952 (8 US. C, 1426). Tn re Naturalr-

cation of Cuorzo, 235 F.2d 184 (C. A. 3).

The fact that Iraq became a co-belligerent 9 days

befere the initial order classifying petitioner TV—C

Was entered does not render it void. Even assuming —

that the order was erroneous, it did. until corrected.

afford petitioner relief from service in the armed

forces! 1

In Reso Vi Shaughnessy, 34 EF. Supp. 217 (3, 1).

N. Y.), an alien who was not actually eligible for

exemption on the ground of alienage filed. Form 201

and was eranted an alien's exemption. The court. re

Jecting the pica that his exemption was void ab fnitie.

stated:

lt is true that relator * * * hadno statu ;

™ tory right * * * @o apply forexemption * * *

ot the ground of his alienage. Teeeever. rela

tor did apply and was granted such exeription

with full knowledgoe of thre PON SCETOEL CES *

Lorn draft’ board- he PRR red ey chissify regist: WES - Gt

secordance with “Rules and Reeulations preseribed by the. Pre

Ident: see Section 3 of the Selective Draining and Service Net

of 1946, Adtougsh Prag bere ame 4 it) bel pare peeret ahi ePeapiigars

194. this facet was not noted its the Reovbat pons buyin © oD tari

1p, Thus it Hp pers 7 atti e hoord pererpee rd prea

} ; ? , : ia . . |

aecOraunce Woh fhe reguiitioni~ ottstumdimve in farnuare. bo

8

Having apphed for and received exemption,

relator clearly comes within the provisions of

section 315 of the Immigration aml Nationality

Act of 1952 * * *,

Under Section 515 (a), it is the fact of rehef and

not the legal right to it that is controlling. Since

petitioner did apply for and was reheved from service,

he comes within the sanction of Section 315 (a) and

is ineligible to become a citizen of the United States.

3. Petitioner makes the statement that the govern-

ment is required to present all evidence to the court,

but does not explain to what omitted evidence he re-

fers. In the government's brief in the court below,

a similar charge was understood to refer to a letter

from the Selective Service Svetem in response to a let-

ter from the Tmmigration and Naturalization Service

requesting information as to whether Tvaq was a neutral

country ope 1942, when petitioner clattned ex-

emption. ‘Khe text of the letter was set forth in full in

the brief below as follows:

Mr, Eow arp J..SHAUGHNESS)

Distvict Director, New York District

\ Inmigration and Naturalization Service

706 Cobunbus Avenue

New York 23, New York

Subject: Sooren Alexander “kender

LB 221, Order No, S-27773B

(20-9) ae

Dean Sin:

Your tetter of 18 Apr PIP is acknowledged,

Por vour information, Selective Service Sys-

tem Local Board release TE2 dated September

YOY LOE lists Drag as a neutral national. Loeal

Board Memorandum No. 112 was amended, the

ug”

8)

effective date of such amendment being 3 June

1943 whereby Traq is listed as a eo-belligerent

nation. Subject registrant on October 31, 1942,

Was entitled to sign D. SOS. Form Sot.

This form was in accordance with Selective

Service Regulations until 8 June 1943. at which

time the same became null and void,

For the State Director

BK. LL. SHANNON

Lt. Colonel, USMC

Manpower Division

Why petitioner considers that this letter: was evi.

dence favorable to him is difficult to understand, Phe

letter Supports the view that, until the Selective Sery

lee System toes notice of Prag? sco-belligeretiey in dune,

1943, petitioner Was legally entitled to the exemption

Which he in Pact claimed and recerved.,

,.

- CONCLUSION

. . > ¥

It is respeethuliy: submitted that the petition for a

writ of certiorarh showid be denied.

3 J. LEE RANK,

Solicitor (genie real,

Rerus D. Mehravy,

Aching Assistait Mlaricg Geicral.

a VERT k RosENBERG,

Wintiam J. Scuarer PLE.

Atlari “YS,