In re Kadich
Decision Date | 12 August 1963 |
Docket Number | No. 724822.,724822. |
Citation | 221 F. Supp. 353 |
Parties | In re Petition for Naturalization of Joseph KADICH. |
Court | U.S. District Court — Southern District of New York |
Edith Lowenstein, New York City, for petitioner.
Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, for respondent.
Howard I. Cohen, Designated Naturalization Examiner.
Petitioner asks to be naturalized. The Government resists on the ground that he has forfeited his right thereto.
Petitioner, a painter of ecclesiastic murals, immigrated under the Italian quota (although listed as a national of Yugoslavia at the time) in 1924 and since then has resided in the United States.
The Selective Service System records disclose that petitioner was classified 1-H on September 19, 1941 as over age for military service. On February 15, 1942, he was classified IV-C as an alien. On April 16, 1942, he executed Form DSS 301, "Application By Alien for Relief from Military Service" and claimed Yugoslavian citizenship. Despite petitioner's protests that he did not comprehend the tremendous significance attached to that application, the entire record conclusively shows otherwise (Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729, 1951). Clearly he seeks to evade the results which flow from the clean and unambiguous language in that application:
(Emphasis supplied)
Form DSS 301, so executed by petitioner, was acted on by the local board of Selective Service the same day, April 16, 1942, and he was relieved from military service, classified IV-C. Further processing of Form DSS 301 executed by petitioner, however, resulted in overt action by National Headquarters of Selective Service: On May 10, 1943 they returned petitioner's "Application By Alien for Relief from Military Service" to his local board, with this directive:
Accordingly, as the Naturalization Examiner found, the local board Such reclassification took place May 31, 1943. Petitioner was found acceptable by Headquarters Second Service Command, Governor's Island, New York, on June 25, 1943; on August 3, 1943, having been found "psychoneurosis, severe," petitioner was rejected and declared disqualified for military service at the Induction Station, and placed in class IV-F.
Petitioner seeks to extricate himself from the drastic legal consequences of Section 315, Immigration and Nationality Act of 1952 (8 U.S.C. § 1426), which provides:
He contends that his application for exemption and consequent relief from military duty in April, 1942 was a nullity by reason of the May 10, 1943 directive from National Headquarters; that the relief accorded him in April, 1942 was due only "neutral" aliens — a status then inapplicable to him, for either as a Yugoslav he was a national of a co-belligerent nation or as an Italian he was an "enemy alien."
Skender v. United States, 248 F. 2d 92, pp. 95, 96 (2d Cir., 1957), cert. denied 355 U.S. 931, 78 S.Ct. 411, 2 L.Ed. 2d 413, overrules petitioner's contentions:
"We hold that he `was relieved * * * from * * * service' within the meaning of § 315(a) * * * and that the two-pronged condition of permanent ineligibility for citizenship was satisfied. There is nothing in the language of that section to suggest that only those legally entitled to be relieved shall be debarred; it is the fact of relief, not the legal right to it, that is determinative of the second prong of the condition. * * * But the bar of § 315(a) * * * applies to `any alien' (as contrasted with a neutral alien) * * *. "* * * Section 315(a) did not leave it open to the appellant to attack the validity of the very classification which he sought on the ground that when made it gave him an exemption to which he was not entitled. * * *" (Emphasis supplied)
Petitioner's lack of gratitude and indifference to the country that for all these years was for him a haven of refuge entitles him to little beyond a full and fair hearing. Not only did he seek exemption from military service in April, 1942, but on June 8, 1943 (after his reclassification following the "erroneous"...
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IN RE PETITION FOR NATURALIZATION OF FABBRI
...269; and In re Kauffman's Naturalization Case, 394 Pa. 625, 148 A.2d 925, are cases involving persons drafted into service. In In re Kadich, D.C., 221 F.Supp. 353, the board erroneously placed the petitioner in IV-C; and, following orders from the National Headquarters of Selective Service,......
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Villamar v. U.S.
...ineligibility to citizenship therefore has not been demonstrated." 118 F.Supp. at 872. The same result was reached in In Re Kadich, 221 F.Supp. 353 (S.D.N.Y.1963), where an alien lost his IV-C classification upon Selective Service's determination that his native country Yugoslavia was a cob......
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