Savoretti v. Small, 16252.

Citation244 F.2d 292
Decision Date01 May 1957
Docket NumberNo. 16252.,16252.
PartiesJoseph SAVORETTI, District Director of Immigration and Naturalization, Appellant, v. Jorge Eduardo Manzano SMALL, Appellee.
CourtUnited 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.

JONES, Circuit Judge.

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:

"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."

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:

"I do hereby make application to be relieved, from liability for training and service in the land or naval forces of the United States, under the Selective Training and Service Act of 1940, as amended, in accordance with the act of Congress, approved December 20, 1941. I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States."

The Selective Training and Service Act, as amended, contained the following provisions:

"Except as otherwise provided in this Act, it shall be the duty of every male citizen of the United States, and of every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and sixty-five, to present himself for and submit to registration at such time or times and place or places, and in such manner and in such age group or groups, as shall be determined by rules and regulations prescribed hereunder." 50 U.S.C.A. Appendix, § 302.1
"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 eighteen and forty-five at the time fixed for his registration, 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." 50 U.S.C.A.Appendix, § 303(a).2
"The President is authorized —
"(1) to prescribe the necessary rules and regulations to carry out the provisions of this Act; * *" 50 U.S.C.A.Appendix, § 310(a).3

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:

"The President is authorized to delegate to the Director of Selective Service only, any authority vested in him under this Act (except section 9). The Director of Selective Service may delegate and provide for the delegation of any authority so delegated to him by the President and any other 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." 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:

"When a nondeclarant alien is residing in the United States. Every male alien who is now in or hereafter enters the United States who has not declared his intention to become a citizen of the United States, unless he is in one of the categories specifically excepted by the provisions of 611.13, is `a male person residing in the United States\' within the meaning of Section 2 and Section 3 of the Selective Training and Service Act of 1940, as amended." Selective Service Regulations 611.12, 32 C.F.R.Cum.Supp. Book 6, p. 9121.
"When a nondeclarant alien is not residing in the United States. A male alien who is now in or hereafter enters the United States who has not declared his intention to become a citizen of the United States is not `a male person residing in the United States\' within the meaning of Section 2 or Section 3 of the Selective Training and Service Act of 1940, as amended; provided he has in his personal possession an official document issued pursuant to authorization of or described by the Director of Selective Service which identifies him as a person not required to present himself for and submit to registration and provided:
* * * * * *
"(6) He has entered or hereafter enters the United States in a manner prescribed by its laws and does not remain in the United States after May 16, 1942, or for more than three months following the date of his entry, whichever is the later; or
"(7) He has, within the time prescribed and in the manner provided in 611.21, filed with the local board with which he registered, or if he is not registered with the local board having jurisdiction over the area in which he is located, an Alien\'s Application for Determination of Residence (Form 302), together with an Alien\'s Personal History and Statement (Form 304), and such application is either pending or has resulted in the issuance by the local board of an Alien\'s Certificate of Nonresidence (Form 303) which has not expired.
"(8) He is an individual designated by the Director of Selective Service as not required to present himself for and submit to registration; * * *" Id. p. 9121.
"What aliens may apply for a determination. Any nondeclarant alien who has entered or who hereafter enters the United States in a manner prescribed by its laws * * * may file with his local board, if he is registered, or with the local board where he is at the time located, if he is not registered, an Alien\'s Application for Determination of Residence (Form 302); provided that such application is filed within three months after the date of his entry into the United States or within three months after persons of his age become liable for training and service by law whichever is the later; and provided further, that such application is filed prior to induction. An Alien\'s Personal History and Statement (Form 304) must be filed with such application." Id. p. 9122.

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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