Savoretti v. Small, 16252.
Citation | 244 F.2d 292 |
Decision Date | 01 May 1957 |
Docket Number | No. 16252.,16252. |
Parties | Joseph SAVORETTI, District Director of Immigration and Naturalization, Appellant, v. Jorge Eduardo Manzano SMALL, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
O. B. Cline, Jr. and Richard Booth, Asst. U. S. Attys., James L. Guilmartin U. S. Atty., Miami, Fla., for respondent-appellant, Bernard S. Karmiol, Immigration & Naturalization Service, Miami, Fla., of counsel.
Louis A. Sabatino, Miami, Fla., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
The appellee, Jorge Eduardo Manzano Small, is a native and citizen of Argentina. In an administrative deportation proceeding he was found subject to deportation as being ineligible to citizenship. That determination was vacated and deportation was enjoined by a judgment of the District Court for the Southern District of Florida upon a review of the administrative order. Before this Court is the appeal of the District Director of Immigration and Naturalization from the judgment of the District Court.
The first entry of Small into the United States was on January 13, 1942, as a temporary visitor for a six months' period. An extension was granted. On May 11, 1943, he signed and filed with the proper Draft Board, Local Board No. 31, New York City, an Alien's Personal History and Statement known as Form DSS 304. In filling out the answers to the questions on this form Small stated that he objected to service in the land or naval forces of the United States. To this he added the handwritten statement, "I object as I feel that I am exempt because I'm an alien student." On this form, immediately below the question as to objection to service, appeared the following:
On August 25, 1943, Small executed and filed with the Local Board Form DSS 301, Application by Alien for Relief from Military Service. Its pertinent language is:
The Selective Training and Service Act, as amended, contained the following provisions:
The Selective Training and Service Act of 1940, 54 Stat. 885, provided:
"The President is further authorized, under such rules and regulations as he may prescribe, to delegate and provide for the delegation of any authority vested in him under this Act to such officers, agents, or persons as he may designate or appoint for such purpose or as may be designated or appointed for such purpose pursuant to such rules and regulations as he may prescribe." Act Sept. 16, 1940, c. 720, 54 Stat. 885, 894, § 10(b).
By an Act of December 5, 1943, c. 342, 57 Stat. 596, 598, the foregoing provision was amended so as to read:
50 U.S.C.A.Appendix, § 310(b).
The President prescribed Selective Service Regulations to govern the administration of the Act. Executive Order No. 8545, Sept. 3, 1940, 3 C.F.R.Cum.Supp. Book 1, p. 719. Among these was the provision that the Director of Selective Service is charged with the administration of the Selective Service Law and is authorized and directed to prescribe such amendments to the regulations as he shall deem necessary. Id. p. 722. Acting, or purporting to act, under the delegated authority, the Director of Selective Service promulgated further regulations, among them being the following:
Regulations 611.12 and 611.13 became effective on February 7, 1942. Regulation 611.21 became effective March 17, 1942.
Although Small filed the Alien's Personal History and Statement, Form D SS 304, he did not file the Alien's Application for Determination of Residence. Argentina ceased to be a neutral, and upon her becoming an ally of the United States, the right of Small to be exempt from service ended. He was classified 1 A on April 4, 1945...
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