Gallarde v. I.N.S.
| Decision Date | 11 May 2007 |
| Docket Number | No. 04-56353.,04-56353. |
| Citation | 486 F.3d 1136 |
| Parties | Paulo E. GALLARDE, Plaintiff-Appellant, v. IMMIGRATION and NATURALIZATION SERVICE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Howard Hom, Esq., and Gail A. Dulay, Esq., San Diego, CA, for plaintiff-appellant Paulo E. Gallarde.
Samuel W. Bettwy, Assistant United States Attorney, San Diego, CA, for the defendant-appellee the United States Department of Homeland Security.
Appeal from the United States District Court for the Southern District of California; Larry A. Burns, District Judge, Presiding. D.C. No. CV-01-01011-LAB.
Before: MYRON H. BRIGHT,* A. WALLACE TASHIMA, and CARLOS T. BEA, Circuit Judges.
For nearly ninety years it has been clearly established that aliens who seek exemption from compulsory military service —the draft—based on alienage will be forever barred from becoming United States citizens. Here, we are asked to decide whether this bar to citizenship applies to an alien who voluntarily enlisted in the United States Navy, sought discharge short of completing his enlistment term on the basis of alien-age, and was honorably discharged. We hold that the bar does not apply.
On February 27, 1991, while ground combat operations during Operation Desert Storm were underway in Kuwait and Iraq, Paulo E. Gallarde ("Gallarde"), a 32 year-old Philippine national, immigrated to the United States as a lawful permanent resident alien. Eight months later, Gallarde voluntarily enlisted in the United States Navy, thereby incurring a four-year active duty service obligation. After serving seven months in the United States Navy Reserve, Gallarde entered active duty on May 5, 1992.
In March 1993, Gallarde injured his back while on duty. As a result of that injury, Gallarde claims to have endured pain on a daily basis and to have begun experiencing numbness in his left leg. When Gallarde spoke with a corpsman about the possibility of being medically discharged, he was advised that such a request would be denied. Gallarde, however, was advised that he could seek a discharge on the ground that he was an alien.
On March 17, 1995, Gallarde requested an early separation from the United States Navy. Although Gallarde did not specify a basis for his request, Gallarde's command treated his request as a request for early separation on the basis of alien-age. On March 19, 1995, Gallarde's commanding officer exercised the discretion given him by applicable regulations and denied Gallarde's request because the Navy was experiencing a shortage of sailors in Gallarde's occupational specialty.
On May 28, 1995, Gallarde again requested early separation, indicating that he was requesting "to be separated fromm [sic] the United States Navy on the basis of being an alien . . . ." On June 7, 1995, Gallarde was informed1 by his command "that any alien [who] applies for discharge from service in the Armed Forces of the United States on the grounds that the member is an alien, and is discharged from such service on such grounds, shall be permanently ineligible to become a citizen of the United States, except if member is exercising treaty rights and served in the armed forces of the country in which the member is a citizen. . . ." On October 27, 1995, approximately six months short of completing his voluntary military service obligation, Gallarde was honorably discharged from the United States Navy on the basis of alienage.
In January 1997, Gallarde filed an Application for Naturalization, which the then Immigration and Naturalization Service ("INS") denied. The INS ruled he was barred from becoming a citizen under Section 315 of the Immigration and Nationality Act of 1952 ("§ 315"). See The Immigration and Nationality Act, Pub.L. No. 414, § 315, 66 Stat. 162, 242 (1952) (codified at 8 U.S.C. § 1426).
Gallarde then filed this action to review the denial of his Application for Naturalization. Gallarde argued that § 315 does not bar him from becoming a citizen because he was not "liable for service" within the meaning of § 315. Specifically, Gallarde argued § 315 bars only aliens who request and receive exemption, relief, or discharge from liability for the draft, not those who request early release from voluntary military service from becoming a citizen.
The district court denied Gallarde's petition, holding that § 315 barred him from becoming a citizen. The district court reached this conclusion without first determining whether "training or service in the Armed Forces," as used in § 315, and "military training or military service," as used in 8 C.F.R. § 315.1, include voluntary military training or service. Rather, relying on the definition of "liability" in the 2004 edition of Black's Law Dictionary, the district court determined that "liability," as used in 8 C.F.R. § 315.2(b)(1), includes contractual liability. Thus, the district court held that § 315 barred Gallarde from becoming a United States citizen because Gallarde was separated on the basis of alienage from voluntary military service for which he had contracted pursuant to an enlistment contract.
We review de novo a district court's interpretation and construction of a federal statute. See United States v. Hernandez-Vermudez, 356 F.3d 1011, 1013 (9th Cir. 2004).
Gallarde raises the same argument on appeal that he raised below, i.e., that § 315's citizenship bar applies only to aliens exempted or discharged from liability for the draft.
We are mindful that "[t]he deprivation of the privilege of acquiring citizenship, which an alien in permanent residence normally enjoys, is a substantial penalty." In re Rego, 289 F.2d 174, 176 (3rd Cir.1961); see also United States v. Lacher, 299 F.2d 919 (9th Cir.1962) (). The loss of that opportunity, no less than the loss of citizenship itself, "may result in `loss of both property and life, or of all that makes life worth living.'" United States v. Minker, 350 U.S. 179, 187, 76 S.Ct. 281, 100 L.Ed. 185 (1956) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922)). Thus, "[a] statute which attaches such a penalty to certain conduct should be construed strictly to avoid an imposition which goes beyond the manifest intent of Congress." In re Rego, 289 F.2d at 176 (citing Minker, 350 U.S. 179, 76 S.Ct. 281, 100 L.Ed. 185).
Section 315 is such a statute:
(a) Permanent ineligibility
Notwithstanding the provisions of section 405(b) but subject to subsection (c) of this section, 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 ineligible to become a citizen of the United States.
(b) Conclusiveness of records
The records of the Selective Service System or of the Department of Defense shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien.
(c) Service in armed forces of foreign country
An alien shall not be ineligible for citizenship under this section or otherwise because of an exemption from training or service in the Armed Forces of the United States pursuant to the exercise of rights under a treaty, if before the time of the exercise of such rights the alien served in the Armed Forces of a foreign country of which the alien was a national.
8 U.S.C. § 1426 (emphasis added).
The Immigration and Nationality Act of 1952 does not define "training or service in the Armed Forces" or "such liability for training and service" and, therefore, does not, by its explicit terms, either establish or foreclose the interpretation advanced by Gallarde.
The Immigration Act of 1990 vested "sole authority to naturalize persons as citizens of the United States" in the United States Attorney General; courts retained authority to administer the oath of citizenship. Compare 8 U.S.C. § 1421(a) (1970), with 8 U.S.C. § 1421(a) (1990). Thus, "the power to naturalize plainly was shifted by the 1990 [Act] from the courts to the [Immigration and Naturalization Service ("INS")]." Gorbach v. Reno, 219 F.3d 1087, 1089 (9th Cir.2000). The INS, exercising its newly acquired authority, promulgated 8 C.F.R. § 315.2. Therein, it adopted existing court recognized exceptions to § 315's bar to citizenship, including:
(1) At the time that he or she requested an exemption from military service, the applicant had no liability for such service even in the absence of an exemption * * *
(7) The applicant is applying for naturalization pursuant to section 329 of the Act.
8 C.F.R. § 315.2(b)(1),(7);2 see also 56 Fed.Reg. 50477 .3 "Exemption from military service[, in the first exception,] means either: (1) A permanent exemption from induction . . .; or (2) The release or discharge from military training or military service . . . ." 8 C.F.R. § 315.1. Like the Immigration and Nationality Act of 1952, 8 C.F.R., Part 315 does not define "such service," as used in 8 C.F.R. § 315.2(b)(1), or "military training or military service," as used in 8 C.F.R. § 315.1. Accordingly, neither 8 C.F.R. § 315.1 nor § 315.2 resolves the question we face, i.e., whether "training or service in the Armed Forces," as used in § 315(a), and "military training or military service," as used in 8 C.F.R. § 315.1, include voluntary training or service in the Armed Forces or, as Gallarde contends, include only compulsory training or service in the Armed Forces.
"Because this case involves an...
To continue reading
Request your trial
- Gregory v. Fresno Cnty.
-
Sakarapanee v. Dep't Of Homeland Sec.
...should extend the interpretation of INA § 315 rendered by the United States Court of Appeals for the Ninth Circuit in Gallarde v. INS, 486 F.3d 1136 (9th Cir.2007), to apply to the language of INA § 329. Doing so in the manner suggested by Sakarapanee would enable him to become a naturalize......
- United States v. Tang Juan