In re Fleischmann's Petition

Decision Date16 May 1956
Citation141 F. Supp. 292
PartiesPetition for Naturalization of Werner Jurg FLEISCHMANN.
CourtU.S. District Court — Southern District of New York

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Samuel J. Silverman, New York City, Francis P. McQuade, Hempstead, N. Y., of counsel, for petitioner.

DIMOCK, District Judge.

On August 2, 1942, petitioner, a citizen of Switzerland, who had been admitted to the United States for permanent residence, was called up under the Selective Training and Service Act of 1940. He signed D.S.S. Form 301 containing the words "I do hereby make application to be relieved from liability for training and service in the land or naval forces of the United States, under the Selective Training and Service Act of 1940, as amended,1 in accordance with the Act of Congress, approved December 20, 1941. I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States. I have not the last two words are in petitioner's handwriting filed a declaration of intention to become a citizen of the United States." He now petitions for naturalization alleging that "he filled out D.S.S. Form 301 under legal duress and consequently should not be debarred from naturalization by reason of Section 315 (a) of the Immigration and Nationality Act of 1952." That section provides:

"Notwithstanding the provisions of section 405(b) of this Act, 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." 8 U.S.C.A. § 1426(a).

The basis for the claim of duress is that petitioner was, like all Swiss citizens under forty years of age, under active duty as a soldier of the Swiss Army and subject to court martial and imprisonment if he violated Article 94 of the Swiss Federal Military Penal Code of 1927 which provides: "Any citizen who, without the permission of the Federal Council enters foreign military service shall be punished by imprisonment."

As the Supreme Court remarked in Moser v. United States, 341 U.S. 41, 46, 71 S.Ct. 553, 556, 95 L.Ed. 729, "petitioner had a choice of exemption and no citizenship, or no exemption and citizenship." He tells us now that he was forced into choosing "exemption" and argues that he is therefore eligible for citizenship as though he had chosen "no exemption". The proposition seems to me to be a non sequitur. Even if it were clear that petitioner was forced into claiming the benefit of exemption it is hard for me to see why that should relieve him from its burdens. The Moser case is not in point. There ...

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3 cases
  • United States v. Hoellger
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 13 Enero 1960
    ... ... § 1426(a) ...         The district court, in an unreported decision, granted the petition for naturalization of appellee, Otto Hoellger, and the Government has appealed ...         The facts are simple and undisputed. Appellee, a ... ...
  • Matter of H----
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 13 Octubre 1960
    ... ... Hoellger, 273 F.2d 760, distinguished.) ...         (2) Termination of deportation proceedings to permit filing petition for naturalization will not be authorized where respondent's purpose is to obtain review by the naturalization court of the findings made in the ... ...
  • United States v. American Employers Insurance Co.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 23 Mayo 1956

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