Kiviranta v. Brownell, 5063.

• Decision Date: 28 May 1956
• Docket Number: No. 5063.,5063.
• Citation: 141 F. Supp. 435
• Parties: Eino Aulis KIVIRANTA, Plaintiff, v. Herbert BROWNELL, Jr., Attorney General of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

141 F. Supp. 435

Eino Aulis KIVIRANTA, Plaintiff, v. Herbert BROWNELL, Jr., Attorney General of the United States, Defendant.

No. 5063.

United States District Court District of Columbia.

May 28, 1956.

Jack Wasserman, Washington, D. C., for plaintiff.

Leo A. Rover, U. S. Atty., Oliver Gasch, Frank Strickler, Kitty Blair Frank, Asst. U. S. Attys., Washington, D. C., for defendant.

THOMASON, District Judge.

This is an action to review a final deportation order of the Attorney General and for a declaratory judgment that plaintiff is not barred from citizenship by virtue of his claim for draft exemption pursuant to Section 3(a) of the Selective Training and Service Act of 1940, 50 U.S.C. § 303(a)^* which reads in part as follows:

"(a) Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States, who is between the ages of nineteen and forty-five, at the time fixed for his registration, or who attains the age of nineteen after having been required to register pursuant to section 2 of this Act, shall be liable for training and service in the land or naval forces of the United States; Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States * * *."

Plaintiff, a citizen of Finland, originally entered the United States as a seaman in 1939. He thereafter shipped out as a seaman on several occasions, returning to the United States on September 7, 1942. He was classified as available for military service, but when called before the draft in March of 1943 he signed a Form DSS 301 claiming exemption as a neutral alien, although he claims he did not understand the proceedings because of language difficulties and only indicated that he preferred to serve in the Navy rather than the Army. It appears that in May, 1944, plaintiff's hearing was ordered reopened by the Board of Immigration Appeals to permit him to volunteer for service in the United States Navy and that on December 22, 1944, he reported for induction; however, at the pre-induction physical examination he was found physically unfit and classified 4F. Deportation proceedings instituted in 1951 resulted in an order in 1953 directing that plaintiff leave the United States. On June 10, 1953, the Board of Immigration Appeals denied him discretionary relief in the form of suspension of deportation or pre-examination upon the ground that he was ineligible for citizenship by reason of having clamed draft exemption as a neutral alien. On October 30, 1953, plaintiff filed this complaint.

To escape the bar to citizenship created by the statute plaintiff contends (1) that his subsequent attempt to serve in the Armed Forces relieved him from the...