Schenkel v. Landon, Misc. Civ. No. 55-24.

• Decision Date: 14 June 1955
• Docket Number: Misc. Civ. No. 55-24.
• Parties: Hans SCHENKEL v. H. R. LANDON, District Director, Immigration and Naturalization Service, United States Department of Justice, Boston, Massachusetts.
• Court: U.S. District Court — District of Massachusetts

133 F. Supp. 305

Hans SCHENKEL v. H. R. LANDON, District Director, Immigration and Naturalization Service, United States Department of Justice, Boston, Massachusetts.

Misc. Civ. No. 55-24.

United States District Court D. Massachusetts.

June 14, 1955.

F. R. H. Witherby, Waltham, Mass., for plaintiff.

Andrew A. Caffrey, Asst. U. S. Atty., Boston, Mass., for defendant.

WYZANSKI, District Judge.

The narrow question here presented is whether after Congress by the Act of June 19, 1951, c. 144, 65 Stat. 75 amended what had been called the Selective Service Act of 1948, 62 Stat. 604, and what was thereafter called the Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 451 et seq., the President retained his statutory power to prescribe regulations whereby a resident alien might apply for, and be allowed, relief from service in the armed forces.

The question arises here because an alien who, during his residence in the United States in 1954, secured relief from military service says he received this exemption without authority, and that since his relief was de facto and not de jure, he is not debarred from returning as an immigrant to the United States.

First, it is necessary to summarize the relevant parts of the immigration law. Section 212(a) (22) of the Immigration and Nationality Act of 1952 (hereafter called "the Act") 66 Stat. 184, 8 U.S.C.A. § 1182(a) (22) excludes from admission as immigrants to the United States aliens who are "ineligible to citizenship." This term is defined by § 101(a) (19), of the Act, 66 Stat. 169, 8 U.S.C.A. § 1101(a) (19) so as to include "an individual who is * * * permanently debarred from becoming a citizen of the United States under * * any section" of the Act. Section 315 of the Act, 66 Stat. 242, 8 U.S.C.A. § 1426 provides that "(a) * * * any alien who applies * * * for exemption * * * from training or service in the Armed Forces * * * on the ground that he is an alien, and is * * relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States. (b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien." Thus the total effect of these statutory provisions is that an alien who on his own application is relieved from military service is thereafter inadmissible as an immigrant.

Second, it is appropriate to state the precise facts in this case. On August 15, 1953 Hans Schenkel, a Swiss citizen, having a quota immigrant visa, was admitted to the United States for permanent residence. He had already served in the Swiss army, and he came to perform in the United States electronic work of importance for the national defense. Having been born February 18, 1929, he registered on February 3, 1954 under the Universal Military Training and Service Act. Local Board No. 16 in Arlington, Massachusetts on April 21, 1954 classified him in Class 1-A. He then relying upon the purported authority of Section 1622.42(c) of the Selective Service Regulations applied for exemption on the ground that he was covered by the treaty the United States had with Switzerland providing for exemption from military service of Swiss nationals. Schenkel was clearly warned that if the application were allowed he would be debarred from thereafter returning as an immigrant or becoming a citizen. May 19, 1954 the Local Board classified him in Class IV-C, as exempt from military service as a treaty alien.

On January 25, 1955 Schenkel, having first received a valid re-entry permit, went to Switzerland to see his recently widowed mother. February 25, 1955 he returned to the United States where his services were still needed in the electronic plant which he had left the month before. After a hearing, a special inquiry officer of the Immigration and Naturalization Service excluded Schenkel as an alien ineligible to citizenship under § 212(a) (22) of the Act. April 27, 1955 the Board of Immigration Appeals dismissed his appeal from the order of exclusion. May 17, 1955 Schenkel, who was then in custody of the District Director and was about to be deported, filed in this Court a petition for a writ of habeas corpus. The Court released Schenkel on bail.

The nub of Schenkel's contention is that within the meaning of the relevant provisions of the Immigration and Nationality Act he had neither applied for exemption from, nor been relieved from, military service, inasmuch as at the time of his application and of the Local Board's classification of him in Class IV-C the President had lost his statutory power to issue regulations relieving from military service aliens admitted for permanent residence; and that, therefore, Schenkel was not ineligible for re-admission.

This brings us finally to the words, context, and background of the Selective Service Acts, and more particularly to Section 1 of the Act of June 19, 1951, c. 144, 65 Stat. 75, 76, 83, 50 U.S.C.A.Appendix, §§ 454(a) and 456(a) whose construction is really in dispute.

Before that 1951 Act was passed, Congress by § 4(a) the Selective Service Act of 1948, 62 Stat. 604, 606 had given to the President in the following words the power to prescribe regulations for relieving from military service a citizen of a foreign country:

"Any citizen of a foreign country, who is not deferrable or exempt from training and service under the provisions of this title (other than this subsection), shall be relieved from liability for training and service under this title if, prior to his induction into the armed 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."

Pursuant to the foregoing statutory power, September 27, 1951 the President prescribed § 1622.42(c) of Executive Order 10,292 3 C.F.R.Supp.1951, 480, 493. See also Selective Service System Regulations Part 1622, § 1622.4(c), 32 C.F.R. Supp.1951, p. 819. Thereby the President directed that in Class IV-C, a class relieved from military service, there

"shall be placed any registrant who is an alien and who is certified by the Department of State to be, or otherwise establishes that he is, exempt from military service under the terms of a treaty or international agreement between the United States and the country of which he is a national."

Against this background Congress enacted the disputed Act of June 19, 1951. Section 1(d) of this amendatory statute amends § 4(a) of the 1948 Act see 65 Stat. 76, 50 U.S.C.A.Appendix, § 454(a) in the following words:

"(d) Section 4(a) of such Act is amended to read as follows: `(a) Except as otherwise provided in this title, every male citizen of the United States and every male alien admitted for permanent residence, who is between the ages of 18 years and 6 months and 26 years, at the time fixed for his registration, or who attains the age of 18 years and 6 months after having been required to register pursuant to section 3 of this title, or who is otherwise liable as provided in section 6(h) of this title, shall be liable for training and service in the Armed Forces of the United States: Provided, That each registrant shall be immediately liable for classification and examination, and shall, as soon as practicable following his registration, be so classified and examined, both physically and mentally, in order to determine his availability for induction for training and service in the Armed Forces: Provided further, That any male alien who is between the ages of 18 years and 6 months and 26 years, at the time fixed for registration, or who attains the age of 18 years and 6 months after having been required to register pursuant to section 3 of this title, or who is otherwise liable as provided in section 6(h) of this title, who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year (other than an alien exempted from registration under this title and regulations prescribed thereunder) shall be liable for training and service in the Armed Forces of the United States, except that any such alien shall be relieved from liability for training and service under this title if, prior to his induction into the Armed 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 alien who makes such application shall thereafter be debarred from becoming a citizen of the United States. The President is authorized, from time to time, whether or not a state of war exists, to select and induct into the Armed Forces of the United States for training and service in the manner provided in this title (including but not limited to selection and induction by age group or age groups) such number of persons as may be required to provide and maintain the strength of the Armed Forces.'"

If the foregoing section be read literally the first sentence of new § 4(a) imposes a duty to serve upon citizens and permanent resident aliens but does not reach other aliens; and the second proviso imposes a duty to serve only upon an alien who has remained in the United States in a status other than that of a permanent resident for a period exceeding one year and provides only for the relief of such alien upon compliance with Presidential regulations. If this literal construction is correct the consequence is not only that treaties of the United...