In re Urmeneta

• Decision Date: 08 December 1941
• Citation: 42 F. Supp. 138
• Parties: In re URMENETA.
• Court: U.S. District Court — Eastern District of Wisconsin

42 F. Supp. 138

In re URMENETA.

District Court, E. D. Wisconsin.

December 8, 1941.

DUFFY, District Judge.

Petitioner, a native of Argentina, has applied for citizenship under Sec. 310(a) of the Nationality Act of 1940, 54 Stat. 1137, 1144, 8 U.S.C.A. § 710(a), his wife being a native born citizen of the United States.

It appears from the report of the designated examiner that petitioner had previously filed his declaration to become a citizen of the United States on November 17, 1916. Thereafter, on August 21, 1917, he was discharged from military service by Local Draft Board No. 16, Buffalo, New York, on the ground that he was physically unfit for such service. The Certificate of Discharge provided, however, among other things that:

"It (the certificate) may at any time be revoked, withdrawn, or modified by this Local Board so as to render such person liable for military service, or it may be renewed.

* * * * *

"Upon receiving notice that this certificate has been revoked, withdrawn, modified, or renewed, the person to whom it is issued shall at once present it in person to this Local Board and surrender it.

"A failure to report in person or to give notice as herein required, or to conform to any of the conditions hereof will be sufficient ground for the immediate revocation and withdrawal of this certificate."

Wishing to obtain an Argentine passport with which to return to that country on a business trip, petitioner applied on September 9, 1918, to withdraw his declaration of intention to become a citizen of the United States. The following day, September 10, 1918, petitioner signed an affidavit in the office of the Clerk of the United States District Court for the Western District of New York to the effect that he renounced and cancelled his intention to become a citizen of the United States and waived and renounced all of the rights to which he might have become entitled by virtue of such declaration of intention.

This court has been asked to admit petitioner to United States citizenship on the ground that he did not renounce his intention to become a citizen of this country for the purpose of avoiding military service, since he had previously been discharged by his Draft Board as unfit for military service. No question has been raised here as to petitioner's good moral character. In fact, I am convinced that the petitioner would make an excellent American citizen if he is eligible.

On July 9, 1918, Congress amended the Act of May 18, 1917, to read in part as follows: "* * * Provided, That a citizen or subject of a country neutral in the present war who has declared his intention to become a citizen of the United States shall be relieved from liability to military service upon his making a declaration, in accordance with such regulations as the President may prescribe, withdrawing his intention to become a citizen of the United States, which shall operate and be held to cancel his declaration of intention to become an American citizen and he shall forever be debarred from becoming a citizen of the United States." 8 U.S.C.A. § 366; Act of July 9, 1918, c. 143, Subchapter XII, § 4, 40 Stat. 885, amending Act of May 18, 1917, c. 15, Sec. 2, 40 Stat. 77.

In 1931, Congress passed the Act of February 11, 1931, c. 118, 46 Stat. 1087, 8 U.S.C.A. § 366a, which provided: "Notwithstanding any provision of law to the contrary, no alien shall be debarred from becoming a citizen of the United States on the ground that he withdrew his intention to become a citizen of the United States in order to secure discharge from the military service, if such withdrawal (and the application therefor) and discharge took place after November 11, 1918."

It will be noted that petitioner's case does not fall within the provision of the Act of February 11, 1931, for the reason that he withdrew his declaration of intention before November 11,...