The opinion of the court was delivered by: GODDARD
Petitioner filed a petition for naturalization on March 28, 1950, claiming the benefits of Section 310(b) of the Nationality Act of 1940, 8 U.S.C.A. 710(b). The Government objects on the ground that that section provides for naturalization of an alien who, on or after May 24, 1934, marries a citizen naturalized on or after that date, if the alien is eligible for naturalization, and that this alien is not eligible and is barred from becoming a citizen as he made 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, 50 U.S.C.A.Appendix, 301 eq seq.
An Iranian citizen, born on August 1, 1906, petitioner entered the United States for permanent residence on January 9, 1942, having previously been in the United States as a treaty merchant since September 17, 1940. He registered under the Selective Training and Service Act of 1940 and was classified 4-C in March, 1941 because of his alien status. In September, 1942, he was classified 3-A for dependency reasons, and on December 9, 1942 he was reclassified 1-A. A claim for exemption as a foreign official under Section 5(a) of the Act was rejected May 20, 1943. On June 21, 1943, petitioner signed DSS Form 301 and he was then classified 4-C.
' * * * I am a citizen of Iran/Persia/, which is neutral in the present war. * * * I do hereby make application to be relieved from liability for training and service in the land or naval forces of the United States, * * * . 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 Service System considered Iran a neutral at the time. Petitioner admits he understood the significance of his act, but states that he was influenced by his wife's ill health and that he thought he could rescind.
On January 10, 1944, after Iran became a cobelligerent, petitioner was reclassified 1-A, but was found physically unfit and declared 4-F on February 17, 1944. Thereafter, on November 21, 1944, petitioner wrote to his Local Board requesting rescission of his Form 301.
The hearing officer has recommended the denial of the petition.
The Selective Training and Service Act of 1940, as amended, provided:
'Sec. 3(a) * * * 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: * * * .' 55 Stat. 845.
Section 10 of the Act gave the President authority 'to prescribe the necessary rules and regulations to carry out the provisions of this Act'. It also gave him power to delegate his authority. This authority was vested in the Director of Selective Service. See CFR Cum. Supp. Reg. 603.1. The Director issued Regulation 601.2, providing:
'(c) The term 'citizen or subject of a neutral country' is used to designate an alien who is a citizen or subject of a country which is neither a co-belligerent country nor an enemy country.' 32 CFR Cum. Supp.
Petitioner now asserts that at the time he filed Form 301, Iran was not a neutral country in fact. However, it clearly was neutral within the terms of the regulation. It did not become a cobelligerent until September 9, 1943. But petitioner challenges the regulation as inconsistent with the statute. He cites definitions of 'neutral' as 'indifferent, impartial', etc., and refers to the fact that after Iran was occupied by Allied troops in August, 1941, it subsequently allowed passage of materiel to Russia, and on January 29, 1942 it entered a treaty with Russia and Great Britain and broke off diplomatic relations with the Axis Powers.
In United States v. Obermeier, 186 F.2d 243, at page 247, the Court of Appeals for the Second Circuit, said:
'We start with these doctrines: (1) A regulation is presumptively valid, and one who attacks it has the burden of showing its invalidity. (2) A regulation or administrative practice is ordinarily valid unless it is (a) unreasonable or inappropriate, or (b) plainly inconsistent ...