IN RE BAUD, Petition No. 592.
| Decision Date | 05 May 1969 |
| Docket Number | Petition No. 592. |
| Citation | 299 F. Supp. 565 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | In re Petition for Naturalization of Paul William BAUD. |
Homer A. Holt, Jackson, Kelly, Holt & O'Farrell, Charleston, W. Va., for petitioner.
Ned Haimovitz, I. N. S., Pittsburgh, Pa., Naturalization Examiner.
This matter is before the Court on a petition for naturalization filed by one Paul William Baud, under the general provisions of the Immigration and Nationality Act of 1952, Section 310 et seq., 8 U.S.C.A. Section 1421 et seq. The denial of the petition is recommended by the Immigration and Naturalization Service on the ground that the petitioner is barred from citizenship by virtue of the provisions of Section 315 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1426, petitioner having claimed and obtained, as a resident alien and a citizen of a neutral country, exemption from military service. It has been stipulated by the parties that, except for the provisions of Section 315 of the Immigration and Nationality Act of 1952, petitioner is eligible for naturalization, he having been found in all other respects a fit subject for citizenship.
The petitioner was born in Lausanne, Switzerland, on August 9, 1929, of Swiss parents. He lived with his parents in the French part of Switzerland until 1945, when he was sixteen years of age. During this period he attended school where he was taught the usual subjects. In addition thereto, he was taught English two hours each week for one school year. In 1945, he left his home and moved to Bern, Switzerland, where he went into an apprenticeship to become a cook. Between 1948 and 1950, he attended a hotel administration school in Lausanne, Switzerland, working in the summers on a ship of the Holland-American Line and in a hotel in Zurich, Switzerland. On December 3, 1951, he immigrated to the United States. After his arrival in the United States he was employed initially in New York City as a busboy in the coffee shop of the Waldorf-Astoria Hotel, and later as a waiter in the home service department of that hotel. From 1951 to 1955, he worked in various establishments in New York, New Jersey, California and Florida, maintaining a mailing address during this period in Weehawken, New Jersey. In April of 1955, he married a United States citizen and moved to White Sulphur Springs, West Virginia, where he obtained employment with the Greenbrier Hotel. Presently he is employed as the banquet manager and headwaiter at the Greenbrier Hotel and he and his wife are the parents of three native-born children, ages eleven, twelve and thirteen years, respectively.
On December 13, 1951, shortly after his arrival in the United States, petitioner registered with Local Board No. 22, Union City, New Jersey, and was assigned Selective Service No. 28-22-29-833. On January 11, 1952, he submitted a classification questionnaire, SSS Form No. 100, indicating he was a citizen of Switzerland and that he had not filed a Declaration of Intention to become a citizen of the United States. On January 23, 1952, after receiving a letter from the Legation of Switzerland confirming that petitioner was a Swiss citizen, he was classified by his local board and placed in Class 4-C, a resident alien exempt from military service. At the time petitioner received his classification from the draft board, a treaty in effect between the United States and Switzerland obligated the United States to exempt Swedish nationals residing in this country from military service. Executive Orders issued by the President in 1948 and 1951 permitted such "treaty aliens" to claim exemption from the military service upon submitting certain proofs of their status. Other aliens not having the benefit of a treaty between their countries of origin and the United States were required to file an application for relief from military service, Form SSS-130, which provided, among other things, that by making such application the alien would forever lose his right to become a citizen of the United States. See Gilligan v. Barton, 265 F.2d 904 (8th Cir. 1959). Thus, under the procedure followed by petitioner as a "treaty alien," he could avoid debarment from eligibility for citizenship. 42 Op. Atty.Gen., April 1, 1968. Petitioner, as a treaty alien, availed himself of this procedure in obtaining exemption from service and, accordingly, as of January 23, 1952, he was not considered ineligible for citizenship.
As is obvious from its wording, this provision of the Immigration and Nationality Act of 1952 () had a retroactive effect, Barber v. Rietmann, 248 F.2d 118 (9th Cir. 1957), and could be construed as excluding from citizenship not only the non-treaty aliens who had received exemption from military service by filing Form SSS-130, but also the treaty aliens who had received exemptions by following the procedures outlined in the Executive Orders of 1948 and 1951. See Ballester Pons v. United States, 220 F.2d 399, 405 (1st Cir. 1955); In re Carvajal, 154 F.Supp. 525, 528, 529 (N.D.Cal.1957). Apparently it was also the position of the Justice Department that such exemption of treaty aliens had the effect of excluding them from citizenship, for in December of 1952, the Swiss Consulate sent circulars to all Swiss aliens informing them of the effects of the Act of 1952 and further stating that it was the position of the Department of Justice that a 4-C classification would prevent a person from becoming a citizen.
Beginning in April of 1953, National Headquarters of the Selective Service System instructed local boards that every alien thereafter desiring exemption under a treaty should be required to personally sign a statement requesting exemption from military service on the ground that he was an alien claiming exemption under a treaty and that his selective service file should show that he signed the request for exemption with full knowledge of the provisions of Section 315 of the Act of 1952. See Petition of Healy, 183 F.Supp. 651 (N. D.Cal.1960). In the spring of 1953, pursuant to this instruction, petitioner received a communication from his local board advising him that the law had been changed by the Act of 1952 and that he was reclassified into Class 1-A. Having received this new classification, petitioner visited the Swiss Consulate in New York City for advice and was there informed that under the Act of 1952, any alien who had obtained a 4-C classification, whether a treaty or non-treaty alien, was ineligible for citizenship and that even if he should go into the military service he, nevertheless, would not be eligible to become a citizen of the United States. Further, petitioner was reminded that under Swiss law he was subject to punishment for serving in the armed forces of another country, and it was the advice of the Swiss Consul that petitioner sign the statement requesting exemption from military service. This advice was based not only upon the possible breach of Swiss law, but also upon the understanding of the Swiss Consulate that his previous 4-C classification had made petitioner ineligible for citizenship even if he should be inducted into the United States Military Service.
Later in the spring of 1953, petitioner appeared at his local board for a physical examination for induction into the armed forces. He was classified as 1-A on April 1, 1953, and on June 10, 1953, he was notified that he had passed the examination and was to report for induction into the armed forces on June 22, 1953. On June 18, 1953, petitioner again went to his local board and executed Form SSS 52-111 in which he made the following statement: "It is my desire to request that I, as a citizen of Switzerland, be classified as IV-C." Immediately above his signature on this form the provisions of Section 315 of the Act of 1952, including the ineligibility provisions, were set out in full, and petitioner testified that with his command of the English language he was able to read and understand the intent of the provisions of the form.1 But he stated that he signed the form under the belief that the provision as to ineligibility was not of importance since his previous 4-C classification as a treaty alien had made him ineligible for citizenship. Petitioner maintains, and this Court believes it to be true, that if he...
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