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In re Petition of Moser

decided: June 14, 1950.

IN RE PETITION OF MOSER


Author: Chase

Before L. HAND, Chief Judge, and CHASE and CLARK, Circuit Judges.

CHASE, Circuit Judge.

Paul Moser, a native and citizen of Switzerland, was admitted to the United States on December 29, 1937 for permanent residence. He filed a declaration of intention to become a citizen in the District Court for the Southern District of New York on March 9, 1938 but on May 11, 1940 left voluntarily for Switzerland where he served as an officer in the Swiss Army until he was released from such duty in the fall of that year. He reentered the United States lawfully on October 11, 1940 as a non-quota immigrant returning to an unrelinquished domicile and has since resided in the City of New York. He married an American citizen on October 19, 1940 and has three children born in this country of that marriage.

On March 27, 1942 he filed a petition for naturalization alleging his marriage as above stated and claiming the exemptions accorded the spouses of citizens under the provisions of the Nationality Act of 1940. 8 U.S.C.A. § 710(b). This petition was dismissed in July 1945 for lack of prosecution.

Meanwhile he had registered in accordance with the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., and on January 15, 1941 had filled out a questionnaire in which he requested either Class III or Class IV classification. He was classified in Class III-A. On January 11, 1944, however, his classification was changed to 1-A and on January 24, 1944 he applied to the Swiss Consulate in New York for assistance in obtaining deferment.

Article II of the Treaty of November 25, 1850 between the United States and Switzerland was in force at all times now material and provided, so far as here relevant, that "The citizens of one of the two countries, residing or established in the other, shall be free from personal military service; but they shall be liable to the pecuniary or material contributions which may be required, by way of compensation, from citizens of the country where they reside, who are exempt from the said service." 11 Stat. 587, 589.

He desired to take advantage of the above quoted provisions and the Swiss Legation at Washington was so informed. It had previously had some conversations with our Department of State in which it had put forth its view that Swiss nationals were entitled to deferment under the treaty without being thereby debarred from becoming American citizens in accordance with the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 303(a).

The above section of the statute contained a proviso "that any citizen or subject of a neutral country shall 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; * * *" And Section 316(a) of Title 50 U.S.C.A.Appendix, provided that, "except as provided in this Act, all laws and parts of laws in conflict with the provisions of this Act are hereby suspended to the extent of such conflict for the period in which this Act shall be in force."

As a result of the efforts of the government of Switzerland and of those made by other governments having similar treaty exemptions for their nationals, the form, known as DSS Form 301, which had been previously prescribed under the above statute in accordance with the Selective Service Regulations for execution by neutral aliens desiring to claim exemption from military service because of that status, was revised on March 16, 1943. The following clause, "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" was deleted and the above quoted proviso in Sec. 3(a) of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 303(a), was printed on the form though not in that portion of it above the applicant's signature.

On February 18, 1944, the Swiss Legation wrote the appellee that it had requested exemption for him under the treaty provisions and enclosed two copies of revised DSS Form 301, which he was instructed to "execute and file immediately with your Local Board." He was also told that this was necessary "to complete the exemption procedure" and that his Local Board "will then classify you in Class IV-C" which was the exempted classification he desired. This letter ended with the following paragraph: "Please note that, through filing of DSS Form 301, revised, you will not waive your right to apply for American citizenship papers. The final decision regarding your naturalization will remain solely with the competent Naturalization Courts."

The appellee executed both copies of the form, filed them with his Local Board, and was classified in Class IV-C. In doing so he represented that he was a non-declarant alien and the contention was made below that he fraudulently so stated, but that issue was resolved in his favor and is not now of moment.

This appeal is from an order admitting the appellee to citizenship and the overall question presented is whether under Article II of the treaty he was entitled to secure exemption from service in the armed forces of the United States without losing whatever rights he otherwise might have to become an American citizen.

While it is plain enough that the treaty did give the appellee immunity from such service, it is equally plain that it did not require him to take advantage of that immunity unless he so desired. To be sure the only express condition upon his acceptance of exemption was his liability for whatever pecuniary contributions were exacted from citizens in lieu of military service. This was evidently done to prevent discrimination against citizens and, we think, cannot be treated as an agreement that treaty nationals would be relieved from military service without affecting their status in other respects at all.

The treaty is silent on the subject of the acquisition of citizenship by nationals of either country residing in the other and so far as we are presently informed that subject was not considered when the treaty was made. See 3 Hackworth, Digest of International Law, pp. 598-612. In our opinion this treaty is without significance in respect to the right of either country to impose what conditions it sees fit upon the admission to citizenship of nationals of the other. It follows that Section 3(a) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 303(a), did not, by granting exemption from ...


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