In re Martinez, 2774-14875.

• Decision Date: 23 July 1947
• Docket Number: No. 2774-14875.,2774-14875.
• Citation: 73 F. Supp. 101
• Parties: In re MARTINEZ.
• Court: U.S. District Court — Western District of Pennsylvania

73 F. Supp. 101

In re MARTINEZ.

No. 2774-14875.

District Court, W. D. Pennsylvania.

July 23, 1947.

Joseph D. Ripp, of Pittsburgh, Pa., for petitioner.

Hyman Scher, of Pittsburgh, Pa., for Immigration and Naturalization Service.

WALLACE S. GOURLEY, District Judge.

This proceeding relates to a petition for naturalization filed by Jose Prieto Martinez who was born in Spain on July 25, 1898, and who legally entered the United States on April 1, 1917, and has continually resided in this country since that date. He filed his Declaration of Intention to become a citizen on February 9, 1944, and his Petition for Naturalization was filed on June 19, 1946.

It appears that during the period of more than thirty years that the petitioner resided in the United States, he has not been involved in any trouble or difficulty. However, in connection with the investigation which was made after the filing of the Petition for Naturalization, certain facts were discovered by the government which resulted in the recommendation being made to the Court that the Petition for Naturalization be denied.

It appears that subsequent to the declaration of war in December of 1941, the petitioner resided at Hollidayscove, West Virginia. On the 19th day of May, 1942, the petitioner filed with Local Draft Board No. 1, Hancock County, West Virginia, his alien's personal history. On July 2, 1942, he was found acceptable for military service. On July 13, 1942, he was mailed the Notice of Alien's Acceptability. On August 4, 1942, he signed D.S.S. Form 301, which was the application for relief from military service on the basis that he was a Spanish citizen or an alien of a neutral country, and on the basis thereof claimed exemption from military service. At the time this application was filed, the petitioner was employed at the Weirton Steel Company, Weirton, West Virginia, and when the employer ascertained this fact, the petitioner was discharged from his employment. As a result thereof on August 18, 1942, the petitioner signed D.S.S. Form 165 which was an application for voluntary induction. He requested leave to withdraw the application previously signed on August 4, 1942, to be relieved from military service on the basis of being an alien of a neutral country. As a result of the filing of the petition for voluntary induction, the petitioner was ordered to report for induction on September 10, 1942. It was determined that a physical condition existed which made him unacceptable for military service, and at his own expense he underwent a major abdominal operation for a hernia condition. As a result thereof, induction was deferred to March 1, 1943, prior to which time all men over thirty-eight were relieved from military service. The petitioner had no further obligation to report for induction.

The petitioner contends that after he received his notice of alien's acceptability for military service on July 13, 1942, he discussed with other persons who were also Spanish citizens (and, therefore, citizens of a neutral country during World War II) the eligibility of neutral aliens to serve in the Armed Forces of the United States. He followed the suggestion of friends in communicating with the Spanish Consul at New York inquiring as to the rights of neutral aliens. He further states that he was informed by the Spanish Consul that he should appear at the draft board and execute Form 301 which was the application for relief from military service on the basis of him being an alien of the neutral country of Spain. Petitioner further states that the draft board did receive a copy of the Spanish Consul's letter regarding the execution of Form 301, which fact is denied by the government, and in connection with which no proof has been offered in support thereof by the petitioner except his oral statement. However, there does appear in the file of the Bureau of Naturalization a letter written by the Spanish Consul, located at Philadelphia, Pennsylvania, dated October 15, 1942, to the petitioner which relates to the procedure to be followed as an alien of neutral Spain. This letter was given to the government by the petitioner. This is the letter which the petitioner states he received from the Spanish Consul in answer to his inquiry as to the procedure which he should follow.¹

The petitioner further contends that when he appeared before the draft board on August 4, 1942, he was given Form 301 which he signed without discussing the contents thereof. Form 301 which was signed by the petitioner has not been introduced in evidence in the case, and there is nothing in the record to contradict the petitioner that he did not prepare the form in his own handwriting. He does not deny signing such a form, but claims that when he appeared at the draft board, the draft board having received a copy of the Spanish Consul's letter, already knew that he was to execute said form. That his only act on August 4, 1942, was to sign the form, without knowledge of its detailed contents, he not having read it nor was it read to him. Said application is executed under oath, and requires the applicant to set forth under oath his full name, his residence, the draft board with which he is registered, the order number, serial number, and the country of which the individual is a citizen or subject which was neutral in World War II, together with the alien registration number. A copy of said form is set forth in Footnote 2.²

The application form specifically states that the making of the application to be relieved from military service will debar the applicant from becoming a citizen of the United States.

Within a week after the application was filed, the petitioner lost his employment with the Weirton Steel Company and he contends that when he learned and appreciated the full import of the form which he executed and that the same was not mandatory by an alien of a neutral country, he appeared at the draft board some two weeks later, on or about August 18, 1942, demanded cancellation and requested permission to be voluntarily inducted.

At the time of his hearing before an examiner of the Naturalization Bureau on June 19, 1946, petitioner stated that the procedure which he followed was based on the recommendation of the Spanish Consul in answer to his inquiry, and that he became ashamed after losing his job, and, realizing the seriousness of his act, he immediately requested the withdrawal and offered to report for voluntary induction.

The petitioner contends that he believes in the form of government of the United States, that he approves of the same and will be true and faithful to the oath of allegiance required of a citizen. The government contends that citizenship should be denied for the reason that the petitioner is ineligible for naturalization by virtue of the provisions of Section 3(a) of the Selective Service and Training Act of 1940, as amended, 50 U.S.C.A.Appendix, § 303, Subsection (a), said part of the section which relates to the question now before the Court being as follows:

"Sec. 3 (a) Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States, who is between the ages of twenty and forty-five at the time fixed for his registration, or who attains the age of twenty after having been required to register pursuant to section 2 of this Act, shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval 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 person who makes such application shall thereafter be debarred from becoming a citizen of the United States * * *."

The ambition and dream of many people in foreign lands that one day they may be American citizens is a matter of common knowledge of which the courts will take judicial notice. For it is safe to assert that nowhere in the world today is the right of citizenship or greater worth to an individual than it is in this country. It would be difficult to exaggerate its value and importance. By many it is regarded as the highest hope of civilized men. Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L. Ed. 1796.

By the petition for naturalization a case is presented for the exercise of the judicial power under the Constitution, to which the United States is a proper, and always a possible, adverse party. Tutun v. United States, 270 U.S. 568, 576, 577, 46 S.Ct. 425, 70 L.Ed. 738.

Naturalization is the act of adopting a foreigner and clothing him with the privileges of a native citizen. The grant of citizenship or the provisions thereof are to be construed in favor of the government and against the party claiming the grant. As a result thereof, the United States is entitled to the benefit of any doubt which remains in the minds of the Court as to any essential matter of fact. United States v. Harbanuk, 2 Cir., 62 F.2d 759.

Before a person is admitted to citizenship, he must declare on oath in open court that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly to the prince, potentate, state, or sovereignty of which he was heretofore a citizen or subject; that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.

It shall be made to appear to the satisfaction of the Court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United...