In re Petition of Lapenieks

• Decision Date: 06 December 1965
• Docket Number: No. 254443.,254443.
• Citation: 249 F. Supp. 398
• Court: U.S. District Court — Southern District of California
• Parties: In re Petition for Naturalization of Vilis Martins LAPENIEKS.

249 F. Supp. 398

In re Petition for Naturalization of Vilis Martins LAPENIEKS.

No. 254443.

United States District Court S. D. California, Central Division.

December 6, 1965.

Gross & Eisenstein, by Edgar F. Gross, Los Angeles, Cal., for petitioner.

William H. Karp, Gen. Atty. (Nationality), Immigration and Naturalization Service, U. S. Dept. of Justice, Los Angeles, Cal., for the Immigration Service.

CRARY, District Judge.

Petition for naturalization of Vilis Martins Lapenieks is opposed by the Immigration and Naturalization Service on the grounds petitioner is ineligible for citizenship by reason of having applied for and received exemption from military service, Section 315(a) of the Immigration and Nationality Act 8 U.S.C. § 1426(a).

Petitioner was born in Latvia on November 10, 1931, and entered the United States for permanent residence in January, 1952. During the summer of 1952 he was registered for Selective Service and in October of that year was classified I-A by Board No. 47, Miami, Florida. He made written application for exemption on grounds of alienage on November 15, 1952 (Pet.'s Ex. B) and was re-classified IV-C on November 20, 1952 (Pet.'s Ex. C). In June, 1953, petitioner was advised that if he continued to claim exemption he would be ineligible for citizenship (Pet.'s Ex. D and Govt.'s Ex. 1). Petitioner informed his Board he desired to continue ineligible.

In April or May, 1957, petitioner's draft Board informed him that Local Board Memorandum No. 39 (Pet.'s Ex. A), under which his exemption had been granted, was rescinded on March 1, 1956, and that he was again classified I-A (Pet.'s Ex. E). After a pre-induction physical examination on August 20, 1957, (Govt.'s Ex. 2), petitioner was, on about October 10, 1957, advised by his draft Board that he was classified IV-F.

By his claim to exemption and exemption pursuant thereto, petitioner avoided service in the Korean conflict which spanned the period between June 25, 1950 and July 1, 1955. In re Naturalization of Bergin, D.C., 173 F.Supp. 883 at 885.

The Naturalization Service has denied the petition for naturalization, filed September 6, 1963, based on the provisions of Section 315(a) of the Immigration and Nationality Act of 1952 8 U.S.C. § 1426(a).

The decisions are not uniform in their interpretation of the statutes here involved. The court, in In re Naturalization of Cuozzo, 235 F.2d 184 (CA 3, 1956), reversed the decision of the trial court granting petition for naturalization, stating at page 185:

"We see no way of making the statute mean anything but what it says. * * * If, as has been suggested, administrative practice has been to refrain from insisting upon denial of citizenship to those aliens who do in fact serve their turn in the armed forces, that administrative practice cannot alter the explicit direction of the statute."

In the Cuozzo case, an alien had claimed exemption in December, 1950. Thereafter the law was amended to withdraw a permanent resident alien's right to such exemption from military service. He then was classified I-A but found to be not physically acceptable.

The District Court of Minnesota, in Petition of Bergman, 173 F.Supp. 880 (1959), held that the petitioner, an alien, who claimed exemption from military service, was permanently ineligible for citizenship, and his subsequent request for induction did not remove the bar. At page 883 the court quotes from Gilligan v. Barton, 265 F.2d 904 (CA 8, 1959), as follows:

"`The question whether eligibility to citizenship should be restored to men, such as Bergman, who took advantage of their alienage to escape the draft, and now wish to avoid the legal consequences of what they did, is a question for Congress and not for the courts.'"

Bergman claimed exemption from military service as an alien in April, 1942. In 1943, he contacted his draft Board and requested he be inducted into the service. In February, 1944, he was found physically unfit and classified IV-F.

In In the Matter of Cerati, 160 F.Supp. 531 (D.C.N.D.Cal.1957), the District Court in California held Cerati barred from citizenship although he subsequently served in the Armed Forces. He claimed exemption from military service in 1954. In January, 1956, petitioner filed with his local Board request for voluntary induction claiming he misunderstood his application for exemption. He was thereafter inducted into the United States Navy. In referring to Section 315(a) of the Act, the court states, at page 532 of its opinion:

"The statute makes no provision for the restoration of eligibility for citizenship in the event an alien, who has been granted exemption from service, subsequently enters the armed forces. Nothing has been called to the attention of the Court which would indicate that the Congress intended that an exempted alien may regain his eligibility for citizenship by service in the armed forces at such time as he sees fit."

Petitioner, in the instant matter, relies in chief on three cases, to wit: United States v. Lacher, 299 F.2d 919 (CA 9, 1962); United States v. Hoellger, 273 F.2d 760 (CA 2, 1959); and Cannon v. United States, 288 F.2d 269 (CA 2, Dec. 1960).

In United States v. Lacher, supra, the petitioner, a German alien, applied for exemption under the provisions of a treaty with Germany and was classified IV-C in March of 1954. In October, 1954, following abrogation of the treaty, Lacher was re-classified I-A and inducted into the Army on May 28, 1956. In June of 1960 Lacher filed a petition for naturalization under Title 8 U.S.C. § 1427. The District Court granted citizenship over the objection of the Examiner. The District Court and the Court of Appeals, as authority for their respective decisions, relied on In re Rego's Petition, 289 F.2d 174 (CA 3, 1961); Cannon v. United States, supra, and United States v. Hoellger, supra. In all of those cases, the petitioner, after claiming exemption from military service by reason of being an alien, served in the Armed Forces.

By reason of the decision of the Court of Appeals, 9th Circuit, in the Lacher case, supra, this court would be bound to grant the pending petition if the facts in the instant matter are not to be distinguished from those in the Lacher case.

In the Lacher case, as noted above, the petitioner applied for the exemption in 1954, after the effective date of Section 315(a), to wit, December 24, 1952, whereas in the case at bar the application for and the exemption were both accomplished prior to the effective date of Section 315(a). It is to be noted that the petitioner was fully advised in October, 1952, that his exemption from military service by reason of his being an alien would act as a permanent bar to his becoming a citizen of the United States (Govt.'s Ex. 4, pages 5 and 6). It is also to be noted that in the pending matter the petitioner was re-classified I-A and found to be physically unfit for service in 1957, some 5 years after his exemption. These points will be commented on in more detail infra.

Since our Court of Appeals relied on Rego, Cannon and Hoellger cases, supra, the facts and circumstances in those cases will be discussed. In all of those cases the alien actually served in the Armed Forces of the United States.

The petitioner in Rego, supra, 289 F.2d 174, was exempted on his application therefor and re-classified IV-C in 1951. This was an erroneous classification because the petitioner had been lawfully admitted to the United States for permanent residence in 1947, and the Universal Military Training and Service Act (1948), 50 U.S.C., Appdx. 454(a), 456(a), effective in 1951, provided:

"That any male alien * * * who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year * * * shall be liable for training and service in the Armed Forces * * * except that any such alien shall be relieved from such liability * * * if, prior to his induction into the Armed Forces he has made application to be relieved from such liability * * *." (Emphasis ours.) Page 176.

At pages 176-177 of its opinion, the court ruled that since only aliens not in permanent residence were privileged to be relieved from military service, that petitioner's exemption was in error because he was in the same Selective Service category as a citizen. The court notes at page 176 that Section 4(a) of the 1948 Act (Section 454(a), 50 U.S.C. Appdx.), supra,

"* * * debarred certain aliens from becoming citizens if they merely made application for relief from military service because of foreign citizenship."

With respect to Rego's ineligibility under Section 454(a), carrying over as a bar to naturalization after the 1952 Act (Section 315(a)), the court, again at page 176, refers to Hoellger, supra, observing:

"For present purposes we assume, but do not decide, that any status of ineligibility which arose before 1952 under the earlier statute would persist despite the retroactive language of Section 315(a) of the 1952 Act."

The case of United States v. Hoellger, 273 F.2d 760 (CA 3, 1960), involved a petition for naturalization by a German alien who entered the country on December 3, 1951. He soon registered for military service pursuant to 50 U.S.C. Appdx. Section 453. In the summer of 1952 he was classified I-A. On September 11, 1952, his Board, on its own initiative, re-classified petitioner IV-C (alien exempt by treaty). In May, 1953, after the 1952 Act (Section 315(a)) became effective, the Board, again on its own initiative, sent Appellee Hoellger a form application for exemption as an alien although it was questionable that the Board had power to exempt the petitioner who was a permanent resident in December, 1951 (273 F.2d page 761, footnote 1). Hoellger completed the form and returned it to the Board and was classified IV-C until February, 1955, when he was re-classified I-A by reason of the abrogation of the treaty with Germany. It appears that Hoellger, by his own...