Petition of Zumsteg

• Decision Date: 23 July 1954
• Parties: Petition of ZUMSTEG.
• Court: U.S. District Court — Southern District of New York

122 F. Supp. 670

Petition of ZUMSTEG.

United States District Court S. D. New York.

July 23, 1954.

David S. Kumble, of New York City, for petitioner.

Edwin Benson, New York City, United States Naturalization Examiner, for respondent.

DAWSON, District Judge.

This petition for naturalization is opposed by the Examiner on the ground that petitioner is permanently ineligible for citizenship because of the provisions of Section 315(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1426(a).

This provision reads as follows:

"Notwithstanding the provisions of section 405(b), any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States."

The petitioner is a German national who filed his petition for naturalization on April 29, 1952. He apparently first arrived in the United States in 1927 and was residing in New York, N. Y., in 1941 and 1942. In accordance with the provisions of law, he registered for the draft. The Selective Service records reveal the following subsequent history of the registrant:

"July 30, 1941 — Class 4-C — based solely on the fact that he was an alien.

"November 24, 1942 — Class 1-A —available for service after Local Board screening physical examination. At this time registrant was requested to file DSS Form 304, Alien's Personal History and Statement, and in filing same, he objected to service.

"January 9, 1943 — Class 4-C — based on his filing of Form 304 in which he objected to service and exempted from service on the basis of his alienage.

"October 16, 1945 — Class 4-A — as being over age for any military service."

It is the contention of the Examiner that since the petitioner answered Question 41 on Selective Service Form DSS 304 (Alien's Personal History and Statement) in the affirmative on December 11, 1942, he had, within the meaning of the aforesaid Section of the Immigration and Nationality Act —

"applied for exemption or discharge from training or service in the Armed Forces * * * on the ground that he is an alien"

and that, as a result of that statement, was relieved from such service.

Question 41 on the aforesaid Selective Service Form was:

"41. I _______________ object to service (do, do not) in the land or naval forces of the United States."

Immediately under this question is the following statement:

"You are informed that if you are an enemy alien or subject of a country allied with the enemy, you will not ordinarily be acceptable for service in the land or naval forces of the United States if you indicate in Item 41 above that you object to such service. If you are a citizen or subject of any other country, you may indicate in Item 41 whether you do or do not object to service in the land or naval forces of the United States but such objection may be disregarded. If you are a citizen or subject of a neutral country, and you do not wish to serve in the land or naval forces of the United States, you may apply to your local board for Application by Alien for Relief from Military Service (Form 301) which, when executed by you and filed with the local board, will relieve you from the obligation to serve in the land or naval forces of the United States, but will also debar you from thereafter becoming a citizen of the United States."

It is to be noted that the instructions to the Form indicate that if the registrant was an enemy alien, he would not ordinarily be accepted for service in the land or naval forces of the United States if he indicated that he objected to such service. As the Supreme Court has pointed out in Harisiades v. Shaughnessy, 342 U.S. 580, at page 586, 72 S.Ct. 512, 96 L.Ed. 586, enemy aliens cannot, consistently with our international commitments, be compelled to take part in the operations of war directed at their own country.

The instructions to the Form, however, made a special provision for citizens or subjects of neutral countries. In that case, it advised them that if they did not wish to serve in the land or naval forces of the United States, they might apply to the local board for "Application by Alien for Relief from Military Service (Form 301)", and then advised them that such an application, if executed by them and filed with the local board, will relieve them from the obligation to serve in such forces, but would also debar them from thereafter becoming a citizen of the United States.

The question here presented is whether an affirmative answer to Question 41 in the "Alien's Personal History and Statement" is equivalent to an application for exemption from military service.

Two conditions are requisite to the permanent ineligibility of citizenship on the part of the alien: (a) the application for exemption on the ground of alienage and (b) that on such ground, he was relieved from service in the armed forces. Petition of Caputo, D.C. E.D.N.Y.1954, 118 F.Supp. 870.

When the 1952 Immigration and Nationality Act refers to a person who has "applied for exemption * * * from ...