IN RE PETITION FOR NATURALIZATION OF FABBRI

Decision Date09 June 1966
Docket NumberNo. 285 369.,285 369.
Citation254 F. Supp. 858
PartiesIn the Matter of Petition for Naturalization of Emilio FABBRI.
CourtU.S. District Court — Western District of Michigan

Anthony P. Marchese, Robert A. Reuther, Detroit, Mich., for petitioner.

Andrew J. Belanger, Jr., Detroit, Mich., for Government (U. S. Department of Justice).

OPINION

ROTH, District Judge.

Proceeding on petition of alien to be naturalized as a citizen.

Petitioner was born in Falciano, San Marino, on June 20, 1921, came to this country and resided here for three or four years (1926-30), returned to San Marino, and re-entered the United States again on April 14, 1940. Petitioner registered with the Selective Service Draft Board, and on two occasions executed objections to service in the United States Armed Forces (September 30, 1942, and November 22, 1942). He married an American citizen in 1947, with whom he is still living, together with their six children. He later filed his petition for naturalization (No. 222395); and after a hearing before this Court (the late United States District Judge Frank Picard), on motion of the Naturalization Service, an "Order Denying Petition for Citizenship" was entered on November 22, 1949. Notice of appeal from this order was filed, but the appeal was later dismissed by order approved by petitioner's attorney.

In 1951 petitioner was granted a reentry permit, which he used for a trip to San Marino. He again applied for a re-entry permit in March of 1955. Process on this latter application was terminated when petitioner was informed that if he left the country he would not be re-admitted, presumably because of the denial of his petition for naturalization as "Ineligible, Section 3(a), Selective Training and Service Act."

Selective Service records indicate that petitioner was classified as I-A on two occasions, IV-C, IV-F, and IV-A on one occasion each. The chronological order of these is not clear from the records. The objections to service registered by the petitioner were obviously upon full understanding of the consequences. This conclusion is confirmed by the transcripts of the proceedings (page 16, "Continuation of Preliminary Examination on Petition for Naturalization, P-285369," and these proceedings, page 24), showing that petitioner did not then wish to become a citizen of this country and intended to go back to San Marino.

At the outset, the Court is confronted with the denial of petitioner's former application for citizenship. It is settled that naturalization proceedings before Courts are judicial proceedings, and that in passing upon the application, the Court exercises judicial judgment. Tutun v. United States, 270 U.S. 568, 46 S.Ct. 425, 79 L.Ed. 738. Petitioner cites certain cases in support of his application which are distinguishable on their facts from those before us. The Mirzoeff Brothers' cases, 2 Cir., 253 F.2d 671, Id., D.C., 196 F.Supp. 230, are not on point, for neither was ever given the IV-C classification. United States v. Hoellger, 2 Cir., 273 F.2d 760; Cannon v. United States, 2 Cir., 288 F.2d 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, he was placed in I-A, and later disqualified for service at the induction center as physically unfit and placed in IV-F.

United States v. Bazan, 97 U.S.App. D.C. 108, 228 F.2d 455, and In re Bergman, D.C., 173 F.Supp. 880, are two cases nearly on fours with the facts before us. In Bazon the applicant was admitted in 1941, filed an application for naturalization in 1942, and claimed exemption from service in November of 1942. He later tried to withdraw his application for exemption, but the draft board ruled that he could not do so. He filed an application for citizenship in 1946, which was denied because of his claim for exemption. His 1948 application for citizenship was before the Court; and the Court ruled that under the 1952 Act, it was required not only that the applicant applied for exemption from service, but also that he was relieved from serving for that reason. The District Court had ruled that Bazan's request for withdrawal of his exemption application operated to except him from the statutory bar to citizenship. While no claim was made that the 1946 denial of his application for citizenship was res judicata as to the pending petition, by inference the Circuit Court held that the current petition, even though filed before the effective date of the 1952 Act, was to be considered under said Act. The lower court ruling granting citizenship was upheld.

In In re Bergman, supra, the petitioner objected to service, but claimed that after he learned from a friend that any resident neutral alien who held a class IV-C exemption was precluded from citizenship, he contacted the draft board and requested that he be inducted into service. He was called for pre-induction examination and found physically unfit for service and placed in class IV-F. The Court denied the petition and said:

"Even assuming that this conduct constituted a withdrawal of his request for exemption, petitioner cannot void the legislative bar to citizenship. Congress made no provision for withdrawal of an election once made. Nor is the bar to citizenship removed by subsequent eligibility
...

To continue reading

Request your trial
2 cases
  • In re Wendt, Petition No. 451214.
    • United States
    • U.S. District Court — Northern District of Illinois
    • 18 Junio 1969
    ..."on such ground" of alienage. United States v. Bazan, 97 U.S.App.D.C. 108, 228 F.2d 455 (1955); In Matter of Petition for Naturalization of Fabbri, 254 F.Supp. 858 (E.D.Mich.1966); Petition of Caputo, 118 F.Supp. 870 (E.D.N.Y.1954). Still other cases have held that an attempted withdrawal o......
  • Loos v. Immigration and Naturalization Service, 16551.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 24 Marzo 1969
    ...Sec. 1426 by virtue of the relief granted him on his alienage exemption IV-C classification. Loos' reliance on In re Naturalization of Fabbri, 254 F.Supp. 858 (E.D. Mich.1966), is misplaced. There, in a naturalization proceeding, the district court, on the record of the State of Michigan Se......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT