Ballester v. United States
Decision Date | 22 March 1955 |
Docket Number | No. 4865.,4865. |
Citation | 220 F.2d 399 |
Parties | Francisco BALLESTER Pons, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — First Circuit |
Jack Wasserman, Washington, D. C., with whom Orlando J. Antonsanti, San Juan, and David Carliner, Washington, D. C., were on the brief, for appellant.
Douglas P. Lillis, Acting District Counsel, Immigration and Naturalization Service, Miami, Fla., with whom Ruben Rodriguez Antongiorgi, U. S. Atty., San Juan, Puerto Rico, was on the brief, for appellee.
Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.
We are quite satisfied that the district court correctly denied appellant's application for naturalization filed December 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 obtained exemption from military service under the Selective Training and Service Act of 1940, as amended. 54 Stat. 885, 55 Stat. 844, 50 U.S.C.A.Appendix, § 301 et seq., now covered by 50 U.S.C.A.Appendix, § 451 et seq.
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 permanent 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 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 countries 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 General Relations between the United States and Spain, signed at Madrid July 3, 1902, and proclaimed April 20, 1903, 33 Stat. 2105, provides in part as follows:
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.
Therefore, entirely consistent with the exemption contained in Art. V of the treaty, § 3(a) of the Selective Training and Service Act of 1940, 55 Stat. 845, provided as follows:
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 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 conditions of eligibility for naturalization. As the Supreme Court stated in reference to a similar provision of the treaty with Switzerland: Moser v. United States, 1951, 341 U.S. 41, 45, 71 S.Ct. 553, 555, 95 L.Ed. 729.
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 perfectly well-settled that provisions of a subsequent Act of Congress may, for purposes of domestic law, supersede inconsistent provisions of a prior treaty with a foreign country. See Head Money Cases (Edye v. Robertson), 1884, 112 U. S. 580, 597-599, 5 S.Ct. 247, 28 L.Ed. 798; Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 1934, 291 U.S. 138, 160, 54 S.Ct. 361, 78 L.Ed. 695; Clark v. Allen, 1947, 331 U.S. 503, 508-509, 67 S.Ct. 1431, 91 L.Ed. 1633.
Appellant duly registered under the Selective Training and Service Act of 1940. On October 21, 1944, he was directed by his draft board to report for pre-induction physical 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 execute DSS Form 301 (Application by Alien for Relief from Military Service), which application form read in part as follows:
It appears that in 1942 appellant's brother, Jaime Ballester Pons, upon receiving...
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