In re Skender's Petition

• Decision Date: 06 September 1957
• Docket Number: Docket 24033.,No. 371,371
• Citation: 248 F.2d 92
• Parties: Petition of Sooren Alexander SKENDER, for Naturalization. Sooren Alexander SKENDER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

248 F.2d 92 (1957)

Petition of Sooren Alexander SKENDER, for Naturalization.

Sooren Alexander SKENDER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 371, Docket 24033.

United States Court of Appeals Second Circuit.

Argued June 12, 1957.

Decided September 6, 1957.

Matthew A. Campbell, Brooklyn, N. Y. (Michael F. Gioscia, Brooklyn, N. Y., on the brief), for petitioner-appellant.

Harold J. Raby, Asst. U. S. Atty., for the S. D. of New York, New York City (Paul W. Williams, U. S. Atty., and Roy Babitt, Special Asst. U. S. Atty., S.D. N.Y., New York City, on the brief), for respondent-appellee.

Before CLARK, Chief Judge, and CHASE and HINCKS, Circuit Judges.

HINCKS, Circuit Judge.

Appellant, Skender, an Armenian who was a native and national of Iraq, entered the United States for permanent residence on October 3, 1941.

As a male alien, residing in the United States, appellant was subject to registration and military service under the Selective Service Act of 1940, as amended. 50 U.S.C.A.Appendix former Section 302 et seq., 55 Stat. 844.^*

On August 24, 1942, the appellant, as an alien residing in the United States, filed D.S.S. Form 304 "Alien's Personal History and Statement" with his Selective Service Board, in which he plainly wrote that he could read and write the English language; that he was majoring in mechanical engineering at the University of Southern California; and that his usual occupation was "photography, translation."¹ In that document, apparently cognizant of the fact that he might be called upon to serve the country whose citizenship he sought and now seeks, he stated that he did object to service in the land or naval forces of the United States. That form called his attention to the fact that if he claimed to be a citizen or subject of a neutral country, he could apply for D.S.S. Form 301 "Application by Alien for Relief from Military Service." It was further called to his attention that upon execution of such a document he would be relieved from military service but that he would also be debarred from thereafter becoming a citizen of the United States. In forwarding his D.S.S. Form 304 to his Local Board, appellant included a letter in which he requested that the Local Board forward to him D.S.S. Form 301 so that he could make application for relief from military service, indicating that he wished to file D.S.S. Form 301 in connection with D.S.S. Form 304 and thereby obtain exemption from military service.

Thereafter, on October 31, 1942, while Iraq was still a neutral country, appellant filed with his Local Board his application on D.S.S. Form 301 to be exempted from military service. The application was subscribed and sworn to by him before a notary public. It read as follows:

"I do hereby make application to be relieved from liability for training and service in the land or naval forces of the United States, under the Selective Training and Service Act of 1940, as amended, in accordance with the Act of Congress, approved December 20, 1941. I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States * * *"

On December 16, 1942, the appellant was classified I-A, but on January 25, 1943, before called for induction, in accordance with his request that he be relieved from military service as a citizen of a neutral country he was formally classified IV-C and his D.S.S. Form 301 was forwarded to Selective Service Headquarters in accordance with regulations.

Meanwhile, on January 16, 1943, Iraq had declared war on the Axis powers. But it was not until June 3, 1943 that Selective Service Regulations took cognizance of that fact. Thereafter, on August 31, 1943, appellant was reclassified I-A, making him subject to immediate induction into the Armed Forces.

On September 8, 1943, appellant wrote a letter to his Local Board in which he stated that he was appealing from the determination reclassifying him from IV-C to I-A, and that the reason for the appeal was his prior filing of a D.S.S. "form 301 exempting myself from military duty. To place me into class I-A at the present time is taking away from me a vested right. I contend that the only way form 301 could be declared invalid is by Congressional Legislation." His appeal was denied and he was continued in Class I-A. After a lapse of a short period he appeared for a preinduction physical examination in New York City, where it was determined that, for physical reasons, he should be classified IV-F and therefore deferred from military service.

On June 24, 1947, appellant filed his petition for naturalization pursuant to the general provisions of the Nationality Act of 1940.

On January 30, 1956, the petition was brought on for final hearing in the District Court for the Southern District of New York. The Naturalization Examiner recommended to the Court that the petition for naturalization be denied upon the ground that appellant was ineligible for citizenship, by reason of his having applied for and having been relieved from military service in the Armed Forces of the United States as a neutral alien.

At this hearing, appellant admitted under oath that he had applied for relief from military service. He testified that some time after Pearl Harbor with friends in the University of Southern California, where he was then a student in an engineering course, he sought to enlist in the United States armed services but was refused because of his alienage; that after a month or two at the University he was advised to leave because he could not understand English and was making no headway with his studies; that he returned to New York and attended Manhattan College until 1943; that the Iraqian Consul advised him not to serve in the United States Army because otherwise, if the Iraqian government should come under Nazi control and he should be captured, he could be shot as a spy; that it was on the advice and with the assistance of the Iraqian Consul that he requested a Form 301 which he executed and filed without reading; that the Iraqian Military Attache told him to appeal his I-A classification "and as an Iraqian I have to do what he tells me"; and that he didn't understand the language in which his appeal was stated. His testimony was corroborated by no other evidence whatever.

The judge, having heard him testify, concluded that he was "no dummy" and that "he would know what he was doing." The petition for naturalization was denied and this appeal ensued.

The Government's case below was presented on the theory² that it is governed by § 315(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1426 (a).³ For purposes of this appeal we assume that is so, and that the court could properly withhold naturalization only if the appellant had fulfilled the two-pronged condition of ineligibility for citizenship, viz., that he had applied for exemption from military service on the ground of alienage and had been relieved from such service on that ground.

That the appellant had signed and filed...