Ballester v. United States

Decision Date22 March 1955
Docket NumberNo. 4865.,4865.
Citation220 F.2d 399
PartiesFrancisco BALLESTER Pons, Appellant, v. UNITED STATES of America, Appellee.
CourtU.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.

MAGRUDER, Chief Judge.

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:

"Article II.
"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 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 business, as well wholesale as retail, without being subjected as to their persons or their 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 exception from the laws, ordinances and special regulations respecting taxation, commerce, health, police, and public security, in force or hereafter made in the respective countries and applying to foreigners in general."
* * * * * *
"Article V.
"The citizens or subjects of each of the High Contracting 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.

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:

"Sec. 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 prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States: Provided further, 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 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: "That the statute unquestionably 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 Congress, it is not necessary to invoke such authority here, for we find in this congressionally imposed limitation on citizenship nothing inconsistent with the purposes and subject matter of the Treaty. The Treaty makes no provision respecting citizenship." 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: "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 accordance with the Act of Congress, approved December 20, 1941. I understand 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."

It appears that in 1942 appellant's brother, Jaime Ballester Pons, upon receiving...

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