In re Fleischmann's Petition
Decision Date | 16 May 1956 |
Citation | 141 F. Supp. 292 |
Parties | Petition for Naturalization of Werner Jurg FLEISCHMANN. |
Court | U.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.
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 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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