In re Ballester, 5234.

• Decision Date: 26 March 1954
• Docket Number: No. 5234.,5234.
• Citation: 119 F. Supp. 629
• Parties: In re BALLESTER.
• Court: U.S. District Court — District of Puerto Rico

119 F. Supp. 629

In re BALLESTER.

No. 5234.

United States District Court D. Puerto Rico, San Juan Division.

March 26, 1954.

Orlando J. Antonsanti, San Juan, P. R., for petitioner.

Douglas P. Lillis, Acting Dist. Counsel Immigration and Naturalization Service, Miami, Fla., for respondent.

RUIZ-NAZARIO, District Judge.

The petitioner, Francisco Ballester Pons, was born on May 21, 1908 in Soller, Mallorca, Spain. He is married to an American citizen. He entered the United States for permanent residence at San Juan, Puerto Rico, on December 26, 1934. Petitioner has continuously resided in the United States for some 17 years. Mr. Ballester has by his industry become of a worth of more than $100,000. All of his 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.

Petitioner registered under the Selective Service and Training Act of 1940.¹ On October 21, 1944, he was directed to report for a pre-induction physical examination. By letter of November 1, 1944, after informing that he would comply with the direction of the Board, he states that, "As a Spanish citizen with residence in Puerto Rico, I wish to invoke the provisions of Article V, Paragraph I, of the Treaty signed between the United States of America and Spain on July 3, 1902, which reads as follows:

"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." 33 Stat. 2108.

Prior to receipt by Mr. Ballester of the direction from the Local Board, his brother, Jaime Ballester Pons, also a citizen of Spain, had written to the Local Board with jurisdiction, claiming exemption under the same treaty, that is, Treaty between the United States and Spain of Friendship and General Relations, signed at Madrid, July 3, 1902, proclaimed, April 20, 1903, 33 Stat. at Large, Part 2, page 2105.

A series of letters and cables from his said brother Jaime Ballester, during 1942 and 1943, to the Spanish Ambassador to the United States, in connection with the former's alleged right to exemption from military service, was terminated by a cable of January 5, 1944, from Juan Cardenas, the Spanish Ambassador, who requested the Spanish Consul in San Juan to inform said Jaime Ballester that the Embassy's efforts to obtain an "automatic exemption" from military service had been unsuccessful, and advising that Ballester (Jaime) fill out the proper forms.

It was with the above experience of his brother in the background, that petitioner on November 1, 1944, wrote to his Local Board invoking the provisions of Article V of the Treaty aforesaid. Petitioner, who on November 2, 1944, subscribed and swore to DSS Form 301, "Application by Alien for Relief from Military Services", which it is now contended debars him from citizenship under Sec. 3(a) of the Selective Service and Training Act of 1940, as amended, 50 U.S.C.Appendix, § 303(a),² is now relying on Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729.

In that case, Moser, a Swiss citizen, some time before February 18, 1944, requested his Legation to assist him in being released, "unconditionally" from military service in accordance with the 1850 Treaty with Switzerland, 11 Stat. 587.

In response to the request of the Swiss Legation, the Department of State arranged for a revised procedure in claiming exemption. A revised DSS Form 301 was prepared for him to sign, with the express waiver of citizenship deleted. Moser, as stated by the Supreme Court, "was led to believe that" by signing the revised form he would not lose his rights to citizenship. It was in "justifiable reliance" on this advice that he signed the form. 341 U.S. at page 46, 71 S.Ct. at page 556.

Fully aware of his brother's experience, petitioner signed Form DSS 301. He signed the form because, as he testified, he was told by the officials of Selective Service that he "had to sign the forms or go to Buchanan" (the induction center). Petitioner, unlike Moser, was not misled. No misrepresentation of any kind was made to him. Indeed, he, unlike Moser, was, by his own testimony perfectly aware of the fact that by signing the form he was forever debarring himself from American citizenship. The very arbitrariness he complains of excludes him from the protection of the Moser case — it was indeed that arbitrariness that must have made him understand and seriously weigh the two alternatives — either exemption without citizenship, or service with citizenship. He chose the former course intelligently, and cannot now allege successfully that, under the Moser case, he should have been afforded an opportunity to be deceived or misled by misrepresentations, as Moser was. That is what his principal contention is.

Moser did not knowingly and intentionally waive his rights to citizenship. As stated, 341 U.S. on page 47, 71 S.Ct. on page 556, of the opinion, "he never had an opportunity to make an intelligent election between the diametrically opposed courses required as a matter of strict law."

Petitioner on the other hand, was afforded an opportunity to make such an election, and made it.

Petitioner devotes several pages of his brief trying to demonstrate that the factual situation in this case is not only parallel to but still more meritorious than that found by the Supreme Court to have existed in the Moser case.

The Court has carefully compared both factual situations and fails to find substantial parallel between them, much less the existence here of any additional factual considerations better entitling petitioner to the relief accorded to Moser.

Aside from the similarity of the provisions in the treaties invoked in both cases, and the fact that both aliens had registered under the Selective Service and Training Act of 1940, and had been called to report for induction, there is no other parallel between Moser and petitioner, as regards the vital issue which was the subject of relief in the Moser case.

Moser "had asserted a right to exemption without debarment from citizenship. * * * He was led to believe that he would not thereby lose his rights to citizenship. If he had known otherwise he would not have claimed exemption. In justifiable reliance on this advice he signed the papers sent to him by the Legation." 341 U.S. at page 46, 71 S. Ct. at page 556. (Emphasis supplied.)

He made no issue as to his loss of allegiance to Switzerland and does not appear to have been at all concerned with being subject to disciplinary action or reprisals by the Swiss military authorities.

Thus, to Moser, acquisition of American citizenship rather than loss of his Swiss citizenship, was the vital problem.

Petitioner here had not given any thought to American citizenship. The various letters and telegrams, as of the time he was called for induction, appearing of record, do not contain the slightest reference to American citizenship or to any desire or hope of petitioner of ever becoming an American citizen, nor of any concern on his part, whatsoever, for debarment from said citizenship. Moreover, his sworn statements before the various Immigration Officers who investigated his petition for Naturalization bear witness to the same fact, i. e., that acquisition of American citizenship was of no concern to him at the time.

Thus, when he was examined by Naturalization Examiner David L. Scoles on May 23, 1945, and on being confronted with DSS Form 301 signed by him on November 2, 1944, he admitted that he signed the same; that he reads English; that he read said Form before signing it, that when he signed it he understood that it contained the statement that the making of an application to be relieved from military service would bar him from becoming a citizen of the United States, not just for the duration of the War but forever; that his purpose in signing said Form was because he believed that the Treaty with Spain automatically excluded him from military service in the United States of America; that he knew that he was not required to seek exemption; that his action was entirely voluntary; and that he shared the same understanding of many Spaniards who did not wish to lose their Spanish nationality and having no thought of ever becoming American citizens, had taken the same action on that basis; and that he fully understood the implications of his said action. (Exh. I, pp. 2 and 3.)

When he was later examined by Acting Immigration Inspector Albert G. Vaughan on March 29, 1951, and on being asked whether he had served in the United States Army, under the Selective Service Act of 1940, in what branch, and for how long, he answered:

"No, I did not serve. I made an application for relief, due to the fact that I was at that time under the Spanish Army regulations, so I signed the form to be relieved from military service, according to the Treaty of Paris, between Spain and the United States".

He was later questioned:

"What was your purpose or reason for requesting this

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