Mannerfrid v. United States, 45

• Decision Date: 08 December 1952
• Docket Number: No. 45,Docket 22434.,45
• Citation: 200 F.2d 730
• Parties: MANNERFRID v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

200 F.2d 730 (1952)

MANNERFRID v. UNITED STATES.

No. 45, Docket 22434.

United States Court of Appeals Second Circuit.

Argued November 6, 1952.

Decided December 8, 1952.

Jack Wasserman, Washington, D. C., Edward L. Dubroff, Brooklyn, N. Y., of counsel, for appellant.

John M. Foley, New York City, Myles J. Lane, U. S. Atty. for Southern District of New York, New York City, Louis

Steinberg, District Counsel, Immigration and Naturalization Service, United States Department of Justice, New York City, Ralph Farb, Attorney, Immigration and Naturalization Service, United States Department of Justice, New York City, of counsel, for appellee.

Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

This case comes up upon appeal from an order denying the petition for naturalization of the petitioner, Mannerfrid. The ground of the denial was that, while he was in this country, he claimed exemption from military service and that by so doing he forfeited his right to become a citizen. Mannerfrid, a Swede, came to the United States as a business visitor in 1941, and obtained successive extensions of his time to remain as such until (by steps not relevant to this appeal) he was admitted as a permanent resident in April 1949. On March 15, 1943, he signed and filed with his Local Board an application for exemption from military service, a part of which was as follows: "I understand that the making of this application * * * will debar me from becoming a citizen of the United States." He married an American in 1949, and filed his petition for naturalization in 1951. As part of his application for exemption he had filed a letter addressed to the board, in which he said that he would "go back to Sweden * * as soon as the war is over, and, as I do not intend to become an American citizen, my friend, Consul Hugo de Thamm, advised me to file above application. I also want to state that, if I would not have filed the application and joined the American forces, I would automatically have become a United States citizen, and as a United States citizen I would be a foreigner in my own country and as a foreigner I would not be allowed to control any Swedish company or own real estate without certain permissions. As I have quite a large holding of real estate in Sweden and am sole owner of Henrik Mannerfrid Aktiebolag, I thought it is the best to file the `Application by Alien for Relief from Military Service.' If Sweden should become involved into the war, the whole matter changes, and I should be obliged to be able to withdraw this application * * * and reconsider this question, after I have been advised by my Consulate here."

Section 3(a) of the Selective Training and Service Act of 1940¹ subjected to military service, not only all male citizens, but every "male person residing in the United States"; but it did not define what "residing" meant. On February 7, 1942, the Director of Selective Service promulgated Regulations § 611.12 and § 611.13, the purport of which was that every male alien then in the country, or entering it thereafter, should be deemed to be "residing" here, if before May 16, 1942, or within three months after his entry, whichever were later, he did not file an application to have his "residence" determined. Mannerfrid had therefore the period between February 7 and May 16, 1942, to file such an application, and if these regulations were valid, he was a "male alien residing" here, because he failed to do so; and it followed that he would be debarred from ever becoming a citizen, if he ever claimed exemption from military service as he did. The first question therefore is whether these regulations were valid as a reasonable implementation of the statute. In McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, the Supreme Court found it unnecessary to decide this point because the alien had claimed exemption between February 7 and May 17, 1942, at a time when he therefore still had an opportunity to apply for the determination of his residence. Thus the forfeiture of his right to citizenship that the Act imposes upon a claim for exemption by a resident alien, had to be determined without resort to the regulations and by trial as an issue in the naturalization proceeding. In Benzian v. Godwin, 2 Cir., 168 F.2d 952, we also found it unnecessary to decide the point, because, although the alien had indeed filed an application for determination of his residence during the time when the amended statute permitted him to do so, the Local Board had decided that he was a resident. If on the other hand the regulations were invalid, there were no regulations touching residence, and the alien had not proved nonresidence, and could not do so, because the Attorney General had ruled that all sojourners were residents. Now that the Supreme Court has overruled this ruling of the Attorney General, and it appears that there are sojourners who are not "residents," it has become necessary to decide whether the regulations in question are valid in a case like that at bar.

We think that Regulation § 611.13 is valid. The Director, as delegate of the President, was called upon to determine who of those sojourning in the country "resided" here, an inquiry...