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IN RE FATOULLAH

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK


March 5, 1948

Petition of FATOULLAH

The opinion of the court was delivered by: BYERS

Khanbaba Fatoullah filed petition for naturalization No. 442414 in the U.S. District Court at Brooklyn, New York, on April 1, 1946, under provisions of Section 310(b) of the Nationality Act of 1940, 8 U.S.C.A. 710(b) (i.e., an alien who married an American citizen after May 24, 1934).

On May 7, 1943, he executed DSS Form 301 which reads in part as follows: '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.' This form was subscribed and sworn to before E. C. Lindberg, a member of Local Board No. 20 of the Selective Service System in New York City. The petitioner is a native and citizen of Iran which was a neutral country at the time he executed this form.

 On September 9, 1943, subsequent to the execution of the said DSS Form 301 by the petitioner, Iran became a cobelligerent. The question presented is whether the petitioner is precluded from naturalization in view of his application for relief from military service under Section 3(a) of the Selective Training and Service Act of 1940, as amended, or whether the fact that Iran became a cobelligerent subsequent to the date upon which the applicant applied for relief takes him out of the excluded class.

 The language of the Selective Training and Service Act in effect at the time the application was filed is found in Title 50 U.S.C.A.Appendix, 303:

 '(a) 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: * * * .'

 The concluding words above quoted are clear and unequivocal, and it is not seen how this Court can amend them by inserting or adding a provision to the effect that, where there are extenuating circumstances, the Naturalization Court may ignore the plain provisions of the law.

 This is the argument made for the petitioner at the hearing, the record of which is filed herewith. I find no authority for granting the petition, and it is therefore denied.

19480305

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