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IN RE BERINI

June 15, 1953

Petition of BERINI


The opinion of the court was delivered by: GALSTON

The petitioner first came to the United States as a student on August 4, 1938, and on November 29, 1939 took the necessary steps to have his status adjusted on a permanent legal basis. He married a native born United States citizen on February 9, 1947. The petitioner and his wife have two children, both of whom are native born. The petition for naturalization was filed on May 29, 1952 pursuant to the provisions of section 310(b) of the Nationality Act of 1940, as amended, 8 U.S.C.A. § 710(b).

The petitioner, on September 2, 1942, executed Selective Service Form DSS 304, 'Alien's Personal History and Statement.' Therein he said:

 'I do object to service in the land or naval forces of the United States, based on a Swiss Treaty.'

 This form contained the reservation that the election of the registrant to be relieved from military service would debar him from thereafter becoming a citizen of the United States. On February 7, 1944 he executed Revised Selective Service Form 301, entitled 'Application by Alien for Relief from Military Service.' This form too contained the application for relief from liability for training and service in the land or naval forces of the United States, and the signature of the registrant followed immediately below. However, this Selective Service Form differed from Form 301 in that below the signature of the registrant appears this printed statement:

 'Section 3(a) of the Selective Training and Service Act of 1940, as amended, provides in part '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 the 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 logical inquiry, therefore, is why was Form 301 modified as appears in the Revised Form. Apparently both seek to accomplish the same end in that if the registrant elects to claim immunity from military service, he will be debarred from becoming a citizen of the United States.

 The petitioner was relieved from service and did not in fact serve in the armed forces of the United States at any time. There is no question that the petitioner was within the law in seeking to be relieved from service. Prior to doing so, however, he sought the aid of the Legation of Switzerland, for there was an existing treaty between the United States and Switzerland known as The Treaty of Friendship, Commerce and Extradition, of November 25, 1850.

 It is important to notice the sequence, then, of the steps which followed. The Swiss Legation, on August 20, 1942, requested of the State Department that the petitioner be granted an unconditional release from the liability of military service in conformity with the aforesaid treaty. On August 31, 1942 the Department of State acknowledged the receipt of the request and referred it to the appropriate agency of the United States Government for further attention. Then on February 1, 1944, the Swiss Legation wrote to the petitioner:

 'We are forwarding to you, herewith, two copies of DSS Form 301, revised, which kindly execute and file with your Local Board. This action on your part is necessary in order to comply with the exemption procedure; your Local Board, in accordance with Selective Service Regulations, as amended, will then classify you in Class i-v-C.

 '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.'

 Accordingly, the crucial question presented is whether the petitioner is debarred from citizenship by virtue of section 3(a) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 303(a), and section 315 of the Immigration and Nationality Act of December 24, 1952, 8 U.S.C.A. § 1426.

 Whether the petitioner is debarred from citizenship by virtue of section 3(a) of the Selective Training and Service Act of 1940, as amended, was in a case substantially analogous to the instant case, passed on by the Supreme Court in Moser v. United States, 341 U.S. 41, 71 S. Ct. 553, 556, 95 L. Ed. 729. In that case it appeared that the petitioner had entered the United States in 1937, returned to Switzerland for service in the Swiss Army, and subsequently returned to this country. He married a United States citizen. There too the petitioner, Moser, sought advice and aid from the Legation of Switzerland in securing his deferment from Selective Service in the United States. The petitioner advised the Local Board that he had taken steps with the Swiss Legation to be released unconditionally from service under the treaty. The Swiss Legation, on receiving the petitioner's request for assistance, communicated with the Department of State. That department referred the request to the Selective Service System, which replied that the Local Board had been instructed to inform petitioner that he might obtain Revised Form 301 from the Swiss Legation, to be used in claiming exemption. The Selective Service Headquarters in Washington did so instruct the Director of Selective Service for New York City, and as in the case at bar, the Swiss Legation wrote to the petitioner on February 18, 1944, a letter similar to that which the petitioner in this proceeding received on or about February 1, 1944.

 The court reached the conclusion that when Moser signed the application for exemption he believed that he was not thereby precluded from citizenship, and that had he known claiming exemption would debar him, he would not have claimed it. The Supreme Court concluded that in response to the claims of the petitioner and others, 'in apparent acquiescence, our Department of State had arranged for a revised procedure in claiming exemption. The express waiver of citizenship had been deleted. Petitioner had sought information and guidance from the highest authority to which he could turn, and was advised to sign Revised Form 301. He was led to believe that he would not thereby lose his rights to citizenship.' The Supreme Court, insofar as the footnote to Revised Form 301 is concerned, said:

 'A lawyer might have speculated on the possible innuendoes in the use of the phrase 'right to obtain.' But these are minor distractions in a total setting which understandably lulled this petitioner into misconception ...


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