In re Wendt, Petition No. 451214.

• Decision Date: 18 June 1969
• Docket Number: Petition No. 451214.
• Citation: 300 F. Supp. 725
• Parties: In re Petition for Naturalization of Edward Julius WENDT.
• Court: U.S. District Court — Northern District of Illinois

300 F. Supp. 725

In re Petition for Naturalization of Edward Julius WENDT.

Petition No. 451214.

United States District Court N. D. Illinois, E. D.

June 18, 1969.

Lambert M. Ochsenschlager, Reid, Ochsenschlager, Murphy & Hupp, Aurora, Ill., for petitioner.

Harold W. Calhoun, Designated Naturalization Examiner, Dept. of Justice, I.N.S., Chicago, Ill., for Justice Dept.

MEMORANDUM AND ORDER

ROBSON, District Judge.

This petition for naturalization was filed on January 23, 1967, and, after several preliminary examinations, the Designated Naturalization Examiner on November 25, 1968, filed his recommendation that the petition be denied. The parties have stipulated to the relevant facts and have submitted briefs in support of their respective positions. After a brief oral argument, this court took the matter under advisement on the briefs and stipulation. After careful consideration, this court is of the opinion that the petition should be granted.

The petitioner, Edward Julius Wendt, is presently a national of Chile. He came to the United States sometime before 1928, and was accepted for permanent residence on September 28, 1928. In 1942, at the age of 40, he was classified as acceptable for service in the United States Army. Eight days after this notice of acceptability was sent to the petitioner, he applied on October 10, 1942, for relief from service in the armed forces on the ground that he was a national of a neutral foreign country. DSS Form 301. On this form appeared the following words:

"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. * * *"

His local board, as a result of this request for the alien exemption, classified him IV-C on October 15, 1942. On August 5, 1943, he was reclassified into class IV-C (H), which meant that he was over the age for induction at that time. Eleven days later, the petitioner asked that he be able to withdraw his application for exemption on the ground of alienage. Since he was over age, special permission would have had to have been granted. On October 7, 1943, he was refused permission to withdraw his application for exemption and the Director of Selective Service declined to waive his age.

On January 23, 1967, the petitioner filed the present petition. 8 U.S. C. § 1445. He was then 64 years of age. In this petition, he stated:

"I signed Form No. 301 while I was in a very mixed up and confused state of mind. I did not realize the full importance of this action until several months later, when I filed a formal petition with the Selective Service Board, Aurora, Illinois — begging said Board to permit me to withdraw Form 301, and for the Board to reclassify me for any service whatsoever, or wherever my services could be used."

The Designated Naturalization Examiner recommended on November 25, 1968, that this petition be denied. This court, however, does not have to follow this recommendation. E. g., 8 U.S.C. §§ 1446, 1447.

Prior to 1952, the statutory bar to citizenship flowed from the mere making of the application. Cf. Ceballos v. Shaughnessy, 352 U.S. 599, 606, 77 S.Ct. 545, 1 L.Ed.2d 583 (1957). However, as to petitions filed after 1952, such as the present one, a "two-pronged test" was added by Section 315 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1426, and was held to be retroactive to exemptions granted prior to 1952. Cf. Lehmann v. United States ex rel. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957); United States v. Hoellger, 273 F.2d 760 (2nd Cir. 1960); Petition for Naturalization of Mirzoeff, 196 F.Supp. 230 (S.D.N.Y.1961). This section not only requires that the alien apply for the exemption, as the petitioner undoubtedly did here, but also that he "is or was relieved or discharged from such training or service on such ground of alienage." If these two tests are satisfied, then the alien is "permanently ineligible to become a citizen of the United States." 8 U.S.C. § 1426(a).

Several cases have held that, even though an alien applied for the exemption and, at the time he applied, was "effectively relieved" from service on the ground of alienage, if he actually served in the armed forces, he could still become a citizen. E.g. United States v. Hoellger, supra, 273 F.2d at 762. Some cases have even held that if the local board reclassified the alien I-A, and the alien either was not inducted though physically acceptable, or not inducted because physically unacceptable, that the bar to citizenship does not apply since the alien was not effectively relieved of service "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 of the claim of exemption, or a reclassification of the alien by the local board does not remove the permanent bar to citizenship, short of actual induction and service. Lapenieks v. Immigration and Naturalization Service, 389 F.2d 343 (9th Cir. 1968); Gilligan v. Barton, 265 F.2d 904 (8th Cir. 1959); Petition for Naturalization of Bergman, 173 F.Supp. 880 (D.Minn.1959).

The petitioner argues that he was not effectively relieved from service on the ground of alienage because he allegedly would not have been called for service even had he been classified I-A. It is undisputed that when the President on December 5, 1942, restricted the liability for induction to those between the ages of 18 through 37, the petitioner was 40 years of age, and was, therefore, no longer liable for induction as of that date. The petitioner also contends that from the time he signed the form (October 10, 1942) and received the IV-C classification (October 15, 1942), to the time that the President redefined the eligibility requirements, a period of about two months, his local board in Aurora, Illinois, was not drafting men over 38, even though the law allowed them to do so. He then asserts from these facts that even though he received a IV-C, he was effectively relieved of military service by virtue of the administrative policy of his local board, and not because of his IV-C alien exemption status.

It should be noted first of all that, although the petitioner indicated that he was "mixed up and confused" when he signed the claim for exemption, there is no serious contention that he did not understand the nature of what he...