Petition of Kutay, 153025.

• Decision Date: 28 May 1954
• Docket Number: No. 153025.,153025.
• Citation: 121 F. Supp. 537
• Court: U.S. District Court — Southern District of California
• Parties: Petition of KUTAY.

121 F. Supp. 537

Petition of KUTAY.

No. 153025.

United States District Court S. D. California, Central Division.

May 28, 1954.

Ronald L. Walker, Los Angeles, Cal., for petitioner.

Herman R. Landon, Dist. Director, Los Angeles Dist., by Samuel Hozman, Naturalization Examiner, U. S. Department of Justice, Los Angeles, Cal., for Immigration and Naturalization Service.

TOLIN, District Judge.

This matter concerns the petition of Tevfik Kutay who seeks to become a citizen of the United States. The Immigration and Naturalization Service opposes the petition.

Only one ground of objection is urged. There has not been any suggestion that any additional ground exists. The one objection is that petitioner is barred from citizenship because of the provision of the Immigration and Naturalization Act, Sec. 315, Title 8 U.S.C.A. § 1426 (a).¹

Petitioner first entered the United States as a student in 1939. He was then a citizen of Turkey, traveling on a Turkish passport. The entry was formal and lawful. While in this country he remained in close association with, and was rather strictly governed by, the Turkish Consulate. After study of the English language at a Massachusetts' college, Petitioner matriculated in the University of California at Berkeley where he received a degree in architecture in 1945. Petitioner was in continual attendance at school during the academic year except for the fall semester of 1943. The time so lost was made up in the summer of 1944, so that he completed his studies within the usual period of time. In early 1943, petitioner married a citizen of the United States and at present has two children, both native-born citizens of the United States. Petitioner returned to Turkey in 1946 with the intention of remaining there. In 1948, after a change of mind, he returned to this country and applied for permanent residence. His application was rejected. Petitioner was then granted the benefit of a private law by the Congress admitting him for permanent residence as of his original entry in 1939.²

There is no suggestion of any reason petitioner would not make a good citizen of this country. The probability of his being a good citizen here is greater than in the average case and, in any event, his right to permanently reside within this Nation has become fixed by the Legislative and Executive Branches of the National Government, the Congressional enactment having obtained Presidential approval.

It is highly desirable in the form of government prevailing in this Nation that those who permanently reside here should shoulder the very real responsibilities of government which execution of the democratic principle entails. Naturalization is an entry upon the purpose to discharge many duties which fall to those who enter into citizenship status. Out of the new relationship spring more responsibilities than immediate personal benefits (particularly in this case, for Kutay's right to permanent residence has become fixed) but there is not yet a duty to vote or to serve in the various civilian ways in which the Nation sometimes commands its citizens. A good citizen is not merely one who lives in order, with abstinence from criminality. The individual citizen is the smallest individual unit of government and by virtue of his status as a national here, has the duty to collaborate in suffrage and other governmental duties. The petition is opposed solely upon the basis that, in 1944, petitioner signed an application for exemption from military service on the ground that he was a citizen of a neutral country. The exemption was granted. The Government now contends that, on these facts, petitioner is permanently ineligible for naturalization, although eligible to receive the protection of residence here with its incidents of protection by the agencies of government which, according to the Naturalization Service theory, he can never serve in responsible or nominal capacity. It is true that military service might again be commanded; but if this petition be denied, even that onerous concomitant of receiving protection cannot always be insisted upon, for the resident alien can, under some circumstances, still have the exemption Kutay obtained when he was exempted from military service. However, if this petition be granted, he will be responsible for all the burdens as well as enjoy all the advantages of citizenship.

The statute provides that any alien who applies for, and receives, such an exemption shall be permanently ineligible to become a citizen of the United States. Immigration and Naturalization Act, Sec. 315, Title 8 U.S.C.A. § 1426 (a).³ The suggestion has been made that this ineligibility provision does not apply to petitioner here since at the time he claimed the exemption, he was merely a temporary visitor and not a permanent resident. It is argued that the claim by such an alien (as in the case of a foreign tourist) should not have the extreme and excluding consequences applied to an alien who makes his permanent residence in this country and, hence, enjoys many more benefits and protections. Such permanent resident invariably has lost the immediate responsiveness to the dictates of his national government. The equities of this argument are very compelling. A forceful presentation might well be made that it was not the Congress' intention to impose this harsh penalty on mere temporary visitors who are not here as immigrants or residents with the intention of making their home here, but rather are present on limited business or pleasure ventures and maintain a close association and amenability to the discipline of their native country and have an honest intention of returning there on completion of their mission. Such a class of aliens are generally, if not always, subject to the military service of their own country and cannot equitably be classified with those non-citizens who seek the privileges and protection of this country as a permanent home and yet seek to avoid their correlative duties and obligations. A citizen of one country might well be required by his government to resist, by all possible means, conscription into another country's military service. This is nothing novel or new. The Supreme Court has recognized the principle in Harisiades v. Shaughnessy, 342 U.S. 580, at pages 585-587, 72 S.Ct. 512 at page 516, 96 L.Ed. 586, where it was said,

"So long as one thus perpetuates a dual status as an American inhabitant but foreign citizen, he may derive advantages from two sources of law — American and international. He may claim protection against our Government unavailable to the citizen. As an alien he retains a claim upon the state of his citizenship to diplomatic intervention on his behalf, a patronage often of considerable value. The state of origin of each of these aliens could presently enter diplomatic remonstrance against these deportations if they were inconsistent with international law, the prevailing custom among nations or their own practices.

"The alien retains immunities from burdens which the citizen must shoulder. By withholding his allegiance from the United States, he leaves outstanding a foreign call on his loyalties which international law not only permits our Government to recognize but commands it to respect. In deference to it certain dispensations from conscription for any military service have been granted foreign nationals. They cannot, consistently with our international commitments, be compelled `to take part in the operations of war directed against their own country.' In addition to such general immunities they may enjoy particular treaty privileges.

"Under our law, the alien in several respects stands on an equal footing with citizens, but in others has never been conceded legal parity with the citizen. Most importantly, to protract this ambiguous status within the country is not his right but is a matter of permission and tolerance. * * *"

Our own nation makes similar requirements of its citizens. See Title 8 U.S. C.A. § 1481(a)(3); Bauer v. Clark, 7 Cir., 161 F.2d 397; Minoru Hamamoto v. Acheson, D.C.S.D.Cal., 98 F.Supp. 904, Byrne; Federici v. Miller, D.C.W.D. Pa., 99 F.Supp. 962. It seems to be only elementary fairness to require a person to render military assistance to only one country, and that such country should normally be that nation of which he is a citizen.

The group of resident aliens who have moved here as distinguished from visiting students is always very large. In 1952, 265,520 resident aliens were admitted, whereas the student visitors temporarily here on special limited visas numbered only 13,533.⁴ It might well have been that, as suggested, the Congress overlooked the latter group because of comparative and actual smallness of number, but the Court must always respect and enforce that which the Congress has enacted into law, rather than what it might have legislated had it been more fully informed or its attention drawn to a particular situation. The critical Section involved here⁵ speaks clearly of "* * * any alien * *" and "alien" is specifically defined in the Act as any person not a citizen or national of the United States,⁶ and hence, the ban clearly would apply to persons in the class of Petitioner here.

The Supreme Court has, however, declared a very definite limitation on these military exemption waivers. In the case of Moser v. United States,⁷ an alien was informed by his legation that signing the application for exemption⁸ would not absolutely foreclose his right to apply for citizenship. The court there held, with the following language in 341 U.S. at page 47, 71 S.Ct. at page 556, that the petitioner could obtain citizenship:

"* * * Petitioner did not knowingly and intentionally waive his rights to citizenship. In fact, because of the misleading circumstances of this case, he never had an opportunity to make an intelligent election between the diametrically opposed courses required as a matter of strict law. Considering all

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