In re Calvo's Petition, 100858.

• Decision Date: 08 May 1958
• Docket Number: No. 100858.,100858.
• Parties: In re Petition for Naturalization of Charles CALVO.
• Court: U.S. District Court — District of New Jersey

161 F. Supp. 761

In re Petition for Naturalization of Charles CALVO.

No. 100858.

United States District Court D. New Jersey.

May 8, 1958.

Charles Stanziale, Newark, N. J., for petitioner.

Herman Kaner, Naturalization Examiner Department of Justice, Newark, N. J., for Immigration and Naturalization Service.

WORTENDYKE, District Judge.

The petitioner, a national of Spain, was born on May 22, 1924, and entered the United States with his parents when five years of age. He has been lawfully admitted for permanent residence in this country since September 18, 1929, and is now 33 years old. Petitioner is married, and is the father of an infant son who is approximately four months old. He has completed ten years of education in this country, having progressed through the second year of High School in the United States.

On March 8, 1943, petitioner went to the Selective Service Board and advised the clerk present that his mother was ill and suffering from a cardiac condition and requested that he be given a year or at least six months before going into the military service. Petitioner claims that it was not his intention to refuse to help the United States in its struggle during World War II, but merely to request a deferment because of his mother's illness. He was classified 4-C on March 15, 1943, as required by law, and was relieved from military service or training on the ground of alienage, pursuant to his application, after he had executed form DSS-301 under 50 U.S. C.A.Appendix § 303(a)^* which relieves nationals of a neutral nation (as Spain then was) from liability for military service, but which exacts a penalty for such exemption of permanent debarment from United States citizenship. Petitioner admits that he signed such form. He asserts, however, that he did not fully understand what he was signing and that the effect of his signing was not fully explained to him; but I find that petitioner carefully read form DSS-301 before signing it, that his education and training were sufficient to enable him to comprehend the benefit conferred and the penalty incurred thereby and that the Clerk before whom he signed in no way misled the petitioner. Therefore, the question presented is whether the petitioner is permanently barred from naturalization under Section 315 of the Immigration and Nationality Act of 1952 (8 U.S.C.A. § 1426) and Section 3(a) of the Selective Training and Service Act of 1940, as amended.

The present Petition for Naturalization having been filed on December 18, 1956, under the general provisions of the Immigration and Nationality Act of 1952, this case is accordingly governed by that Act and not by Section 3(a) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 303(a)^**. Section 405(b) of the 1952 Act is embodied in a note under 8 U.S.C.A. § 1101 designated as "Savings Clause", subdivision (b) of which reads as follows:

"(b) Except as otherwise specifically provided in title III * * * any petition for naturalization heretofore filed which may be pending at the time this Act (this chapter) shall take effect shall be heard and determined in accordance with the requirements of law in effect when such petition was filed."

As stated by Mr. Justice Brennan in Ceballos v. Shaughnessy, 1957, 352 U.S. 599, at page 606, 77 S.Ct. 545, at page 549, 1 L.Ed.2d 583:

"Section 315 of the 1952 Act enacts a two-pronged requirement for the determination of permanent ineligibility for citizenship: The 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.'"

Despite the foregoing double requirement of the 1952 Act, as opposed to the single requirement under Section 3(a) of the Selective Training and Service Act of 1940, as amended, that such preclusion takes place where the alien merely applies for exemption from military service, I feel that both requirements have been met in the present case, and that the Petition for Naturalization should be denied. The Ceballos case is strikingly in point, factually, although decided under Section 3(a) of the 1940 Act. However, it is at least authority for the proposition that one who voluntarily executed and filed a form DSS-301, and allowed it to remain on file for a period of approximately ten years, falls within the category of one who has applied for the exemption. The second element required by the 1952 Act, viz., that the petitioner was relieved or discharged from such training or service on the ground of alienage, is supplied by the indisputable fact that he was classified 4-C, and was exempted from military service or training, as required by law, and that he had not taken any step to change...