In re Carvajal, 111074.

• Decision Date: 16 July 1957
• Docket Number: No. 111074.,111074.
• Citation: 154 F. Supp. 525
• Parties: In the Matter of Arnoldo J. CARVAJAL, Petitioner for Naturalization.
• Court: U.S. District Court — Northern District of California

154 F. Supp. 525

In the Matter of Arnoldo J. CARVAJAL, Petitioner for Naturalization.

No. 111074.

United States District Court N. D. California, S. D.

July 16, 1957.

Jackson & Hertogs, San Francisco, Cal., for petitioner.

Daniel H. Lyons, Designated Naturalization Examiner, San Francisco, Cal., for the Government.

GOODMAN, District Judge.

This petition for naturalization tenders the question whether petitioner's deferment from service in the United States armed forces as a so-called "treaty alien" debars him from United States Citizenship.

Petitioner, a native of Costa Rica, was admitted to the United States for permanent residence on June 4, 1947 and has resided here ever since. On June 13, 1951, in accordance with the Selective Service Act of 1948, 62 Stat. 604, 50 U.S. C.A.Appendix, § 451 et seq., he registered with the Selective Service System, Local Board 39, in San Francisco. At that time the Selective Service Act of 1948 subjected every male person residing in the United States, not specifically exempted by the Act, to liability for service in the armed forces. It provided, however, that any citizen of a foreign country, not statutorily exempt, might be relieved from liability for service if he applied for relief in the manner prescribed by the President, but that any person who made such application should thereafter be debarred from becoming a citizen of the United States. Petitioner was not within any of the classes of aliens statutorily exempt from military service.

The regulations promulgated by the President pursuant to the Act then provided that any alien registrant should be relieved from liability for service, who, prior to his induction, filed with his local board an Application for Relief from Military Service (SSS Form No. 130). An alternative method for securing deferment was prescribed by the presidential regulations for aliens who had not declared their intention to become a citizen and who were nationals of a country with which there was a treaty exempting nationals of that country from military service while within the United States. Deferment of such aliens was authorized if an application for their deferment was communicated by their government to the Department of State and approved by the Department.

On June 19, 1951, some six days after petitioner registered with his local board, the Selective Service Act of 1948 was amended. The amended language of the Act cast doubt upon the President's authority to thereafter provide for the deferment of aliens admitted for permanent residence. As amended, Section 4 (a) of the Act, 50 U.S.C.A.Appendix, § 454(a), stated generally that "every male citizen of the United States and every male alien admitted for permanent residence," if of a specified age, should be liable for military service. There followed a proviso that any male alien who had not been admitted for permanent residence, but who had remained in the United States for more than a year, should also be liable for military service, unless otherwise specifically exempted by the Act. This proviso concluded with the qualifying clause, "except that any such alien 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 alien who makes such application shall thereafter be debarred from becoming a citizen." If Section 4(a) of the Act as amended were given a normal grammatical interpretation, this qualifying clause empowering the President by regulation to provide relief from liability for military service, would apply only to aliens not admitted for permanent residence.

On September 28, 1951, as a consequence of the amendments to the Selective Service Act, the President promulgated revised Selective Service Regulations. The Revised Regulations no longer provided for the deferment of all alien registrants who filed Applications for Relief from Military Service (SSS Form No. 130) with their local board. Under the Revised Regulations deferment on the basis of such application could only be granted aliens who had not been admitted for permanent residence. However, the Revised Regulations continued in effect the previous regulation that any alien should be deferred who was certified by the Department of State to be, or otherwise established that he was, exempt from military service under the terms of a treaty.

Meanwhile on July 30, 1951, a request by petitioner to be relieved from military service on the basis of a treaty between the United States and Costa Rica was transmitted by the Costa Rican Embassy to the Department of State. Thereafter the Department of State certified to the Selective Service System that petitioner's claim of exemption pursuant to the treaty was valid. Accordingly on December 19, 1951 petitioner was deferred from military service by his local board.

On December 24, 1952, the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq. became effective. Section 315 of that Act, 8 U.S. C.A. § 1426, provides that:

"(a) Notwithstanding the provisions of section 405(b), 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) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien."

On April 24, 1953 the Selective Service System issued Amended Local Board Memorandum No. 39 calling the attention of all local boards to the provisions of Section 315 of the Immigration and Nationality Act of 1952 and instructing them to "require every alien who desires exemption from military service under a treaty to sign a statement that he requests exemption from military service on the ground that he is an alien claiming an exemption under a treaty." The memorandum further directed that the provisions of Section 315 of the Immigration and Nationality Act of 1952 should appear on the same paper with such statement "as a matter of information to the registrant."

In accordance with this memorandum, petitioner's local board notified him by letter dated June 24, 1953 that "To be considered for exemption from military service in the armed forces of the United States by reason of the fact that you are an alien claiming such exemption under a treaty between this country and the country of which you...