Gilligan v. Barton

• Decision Date: 23 April 1959
• Docket Number: No. 16073.,16073.
• Citation: 265 F.2d 904
• Parties: Patrick Joseph GILLIGAN, Appellant, v. Lewis D. BARTON, District Director, Immigration and Naturalization Service, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

265 F.2d 904 (1959)

Patrick Joseph GILLIGAN, Appellant, v. Lewis D. BARTON, District Director, Immigration and Naturalization Service, Appellee.

No. 16073.

United States Court of Appeals Eighth Circuit.

April 23, 1959.

Howard Kanefield, St. Louis, Mo. (Murray Steinberg and Richard Marx, St. Louis, Mo., on the brief), for appellant.

Noel L. Robyn, Asst. U. S. Atty., Clayton, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal by Patrick Joseph Gilligan from an order of the District Court entered June 6, 1958, denying his petition for naturalization, filed on May 23, 1956, upon the ground that he was ineligible for citizenship by virtue of Section 315(a) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 242, 8 U.S.C.A. § 1426(a).

Gilligan, a resident of St. Louis, Missouri, was born in Ireland February 11, 1927; arrived in New York October 9, 1950; reached St. Louis about October 21 of the same year; first lived with an uncle in that City; and went to work at the Scullin Steel Company as a time-keeper. In April of 1951 Gilligan received his first notice from his local Selective Service Board. Following the advice of his foreman, his uncle, and other employees at the Scullin Steel Company, with whom he discussed his situation, he went to his local board and requested an alien exemption form, and signed and apparently verified it before Allen A. Reed, Local Board Auditor. His application read as follows:

"CPA "Selective Service System "Application by Alien for Relief from Training and Service in the Armed Forces. "(Date) May 2, 1951. "Selective Service Board No. 101 "St. Louis County Court House "Clayton, Missouri "(Stamp of Board or Address of Sender) "State of Missouri | | ss. "County of St. Louis |

"I, (Last name) Gilligan (First Name) Patrick (Middle name) Joseph do solemnly swear (or affirm) that I am a citizen of (Country) Ireland; I am a registrant of Local Board (Number) 101, (City) Clayton (County) St. Louis (State) Missouri; my Selective Service number is 23 101 27 711; my alien registration number is 7875665; and that I last entered the United States on (Month, day, and year) October 9, 1950 at (Place of entry) New York on (Name of vessel) Mauretania as (Specify passenger, crew member, stowaway, or other) passenger.

"I hereby apply for relief from liability for training and service in the armed forces of the United States. I have read the Notice given below, and I understand that I will forever lose my right to become a citizen of the United States, and I may also be prohibited from entry into the United States or its territories or possessions as a result of filing this application.

"Subscribed and sworn to before me this second day of May, 1951.

"/s/ Patrick J. Gilligan "(Signature of registrant) "/s/ Allen A. Reed "(Signature of officer) "Local Board Auditor "(Designation of officer)

"Notice

"Section 4(a) of the Selective Service Act of 1948,¹ provides in part that `Any citizen of a foreign country, who is not deferable or exempt from training and service under the provisions of this title (other than this subsection), shall be relieved from liability for training and service under this title if, prior to his induction into the armed 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.\' * * *"

On May 3, 1951, the local board sent Gilligan a Classification Questionnaire, which he returned, and from which we quote the following:

"Name: Patrick Joseph Gilligan. "This questionnaire is intended to furnish the local board with information to enable it to classify you. "The registrant is required to sign the certificate on page 7."

Gilligan's statement on page 7 was:

"I have signed SS Form No. 130 (Alien Exemption Application) "/s/ Patrick Joseph Gilligan."

On August 8, 1951, he was classified IV-C, as a registrant who as an alien had, prior to induction, made application to be relieved from liability for training and service in the armed forces of the United States. See 16 F.R. 384, paragraph (c) of § 1622.18 of Part 1622. He had previously, on June 6, 1951, been classified I-A. Notice of his classification as IV-C was mailed to him August 10, 1951, and he remained in that classification until May 20, 1953, when he was again classified I-A, although he was then beyond the maximum draft age of twenty-six. See 15 F.R. 1325, § 1622.22. On June 3, 1953, he was classified V-A, overage.

The Immigration and Nationality Act of 1952, so far as pertinent, provides:

"Sec. 315(a) * * * any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces * * 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) The records of the Selective Service System * * * shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien."

The Selective Service records respecting Gilligan show that from August 8, 1951, until May 20, 1953, he was, by virtue of his classification as IV-C, relieved of liability for training and service in the armed forces of the United States.

By the terms of Section 315(a), to become permanently ineligible for citizenship an alien must be one "who applies or has applied for exemption," and also one who "is or was relieved or discharged from such training or service on such ground." Ceballos v. Shaughnessy, 352 U.S. 599, 606, 77 S.Ct. 545, 549, 1 L.Ed. 2d 583.

At a hearing before the District Court upon his petition for naturalization, Gilligan testified substantially as follows: that he intentionally signed the application for alien exemption from military service, but had no recollection of reading those portions of the application to the effect that, by so doing, he would lose his right to become a citizen of the United States; that he was not advised, and did not know at the time he signed the application, what effect the signing of it would have; that he was classified as IV-C until May 1953, when his classification was changed to I-A; that he then went to the local draft board and saw there a Mrs. Dietrich; that she explained that he had been reclassified, and that people who had signed anything detrimental to their citizenship "were more or less given a second chance to reconsider"; that she pointed out that if Gilligan insisted upon his exemption, it would bar him from citizenship; that she told him there was a form he could sign which would grant...