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IN RE ZUMSTEG

July 23, 1954

Petition of ZUMSTEG


The opinion of the court was delivered by: DAWSON

This petition for naturalization is opposed by the Examiner on the ground that petitioner is permanently ineligible for citizenship because of the provisions of Section 315(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. ยง 1426(a).

This provision reads as follows:

 
'Notwithstanding the provisions of section 405(b), any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.'

 The petitioner is a German national who filed his petition for naturalization on April 29, 1952. He apparently first arrived in the United States in 1927 and was residing in New York, N. Y., in 1941 and 1942. In accordance with the provisions of law, he registered for the draft. The Selective Service records reveal the following subsequent history of the registrant:

 
'July 30, 1941 -- Class 4-C -- based solely on the fact that he was an alien.
 
'November 24, 1942 -- Class 1-A -- available for service after Local Board screening physical examination. At this time registrant was requested to file DSS Form 304, Alien's Personal History and Statement, and in filing same, he objected to service.
 
'January 9, 1943 -- Class 4-C -- based on his filing of Form 304 in which he objected to service and exempted from service on the basis of his alienage.
 
'October 16, 1945 -- Class 4-A -- as being over age for any military service.'

 It is the contention of the Examiner that since the petitioner answered Question 41 on Selective Service Form DSS 304 (Alien's Personal History and Statement) in the affirmative on December 11, 1942, he had, within the meaning of the aforesaid Section of the Immigration and Nationality Act --

 
'applied for exemption or discharge from training or service in the Armed Forces * * * on the ground that he is an alien'

 and that, as a result of that statement, was relieved from such service.

 Question 41 on the aforesaid Selective Service Form was:

 
'41. I _____ (do, do not) object to service in the land or naval forces of ...

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