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January 28, 1957

Petition of Paul GOURARY for Admission as a Citizen of the United States of America

The opinion of the court was delivered by: WEINFELD

Petitioner, a native and national of Austria, now 37 years of age, was admitted to this country for permanent residence in 1939.

In 1954 he filed the present petition for naturalization under the general provisions of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq. The examiner recommended denial of the petition on the ground that in 1942 the petitioner applied for and was granted exemption from military service because of alienage and in consequence was debarred from citizenship by virtue of § 315 of that Act, 8 U.S.C.A. § 1426, which provides:

 '(a) 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.

 '(b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien.'

 The facts which give rise to the present controversy are somewhat unusual. The issue as to whether the petitioner is to be denied citizenship arises because the local draft board with which he registered erroneously assumed that Austria was a neutral country when in fact it was an enemy country.

 Petitioner on June 18, 1941 executed the required Selective Service questionnaire, in which he stated he was an alien, a citizen or subject of Austria. He was classified IV-C which was a deferred classification for both enemy and neutral aliens. Thereafter he was re-classified I-A. Upon receipt of his I-A re-classification he appeared before the local board on April 21, 1942 and according to his testimony applied for temporary deferment from military service due to his father's serious illness. He testified that he was handed by a clerk Form 301 entitled 'Application by Alien for Relief from Military Service'; that he was advised if he filled out the form it would take care of his situation. Form 301 contains the following:

 'I do hereby make application to be relieved from liability for training and service in the land or naval service 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 * * *.'

 Petitioner duly executed the form and thereafter he was re-classified IV-C and was relieved from military service. Petitioner, who is well educated, understood the contents of the request for exemption. He testified that he would not have signed the exemption application if his father had not been ill.

 At the time petitioner executed Form 301 only a neutral alien had the right to apply for and to obtain relief from military training service. *fn1" But if he did, as already noted, he was thereafter ineligible for citizenship. However, an enemy alien had no right to relief from military duty. No law, regulation or rule authorized a local board to exempt an enemy alien. He remained subject to induction but whether or not he was accepted rested with the military authorities. *fn2" However, a procedure was set up under the Selective Service Act whereby an enemy alien who desired to be relieved of military service could file notice of objection to induction into the armed forces. The form of objection used in the instance of an enemy alien was known as Form 304. *fn3" In the instance of a neutral alien who desired to exercise his statutory right of exemption from military service, the Selective Service Board required him to sign Form 301 which contained the provision quoted above, and which was signed by petitioner.

 It is now conceded that since petitioner was an enemy alien, he should have been given, when he applied for what he describes as temporary deferment, Form 304, which amongst other matters contains the following: 'Section IX. do Statement of Alien. 41. I object do not to service in the land and naval forces of the United States.'

 The Government also concedes that if he had signed the above form and objected to service and if in consequence the military authorities had decided not to induct him, *fn4" this would not have debarred him from citizenship under the 1952 Act. The Government's position is that even though he was not furnished Form 304 and instead was erroneously furnished Form 301 applicable only to neutral aliens, under which he claimed (although he had no right to) exemption from such service, he may not be granted citizenship under 315(a) of the Immigration and Nationality Act of 1952.

 The Act of 1952 makes no distinction between neutral and enemy aliens. Thus the Government contends that the Act with its generic use of the noun alien, applies to petitioner and is retroactive notwithstanding that § 3(a) of the Selective Service Act of 1940, in effect when petitioner filed application Form 301, did not permit exemption to him as an 'enemy' alien and was available only to 'neutral' aliens.

 Congress in its undoubted power to prescribe conditions of eligibility for aliens seeking citizenship may make the law retroactive so that it debars those who committed the proscribed acts prior to the date of the law. However, it does not necessarily follow that the present Act was intended to apply to those enemy aliens who, like the petitioner, were never permitted to apply for, and had no right to, exemption from military service. The question then arises, why the use of the noun 'alien', instead of 'neutral alien'. The answer, it seems to me, is furnished by the differences between the Selective Service Act of 1940 and the Universal Military Training and Service Act of 1948, insofar as it relates to aliens. Whereas under the 1940 Selective Service Act enemy aliens had no right to be relieved from military service, Congress in 1948 granted this right to them when it passed the Universal Military Training and Service Act. *fn5" Under that Act any alien could apply for such exemption. Thus for a period of four years, up to the passage of the Immigration and Nationality Act of 1952, both enemy and neutral aliens had the right to exemption from military training and service, but its exercise debarred them from future citizen ship; and this situation readily explains the use of 'alien' instead of 'neutral alien' in § 315(a) of the 1952 Act.

 The Government presses, however, that under § 315(b) the records of the Selective Service System shall be conclusive as to whether an alien was relieved or discharged from military duty because he was an alien. However, such records are conclusive only as to matters as to which the board had jurisdiction. *fn6" It is beyond cavil that the board had no power in 1942 to consider, much less to pass upon, any application by an enemy alien for relief from military service. Petitioner then was an enemy alien and the confusion which seems to have surrounded his application for deferment and the board's admitted error in regarding petitioner as a neutral alien did not vest it with authority not granted by statute. The board's action in delivering to petitioner, and accepting from him, Form 301 which was authorized for use only in the case of neutral aliens was void and without effect; its purported grant of exemption upon his application was entirely beyond its jurisdiction and a nullity. So too was petitioner's application for relief from military service void and without ...

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