The opinion of the court was delivered by: BRYAN
Petitioner, a native and citizen of France, filed a petition for naturalization on April 19, 1957 under the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 et seq. The Naturalization Examiner has recommended denial of the petition on the ground that on November 16, 1942 the petitioner applied for and was granted relief from training and service in the United States Armed Forces because of alienage under Section 3(a) of the Selective Training and Service Act of 1940 as amended,
and was therefore debarred from citizenship under Section 315(a) of the Immigration and Nationality Act of 1952.
The evidence on the hearing before me consisted of the records of the Director of Selective Service and other documents, and the testimony of the petitioner Bouchage. Bouchage's testimony was straightforward and convincing and he impressed me as a man of integrity. I accept his testimony as true and I find the facts to be as follows:
Bouchage was born in France on October 11, 1922 and is now 37. At the time of the invasion of France by Nazi Germany in 1940 he was residing with his parents in their summer home in Brittany. In January 1941 Bouchage and his family managed to escape from Occupied France. He then came to the United States with his parents, was lawfully admitted to permanent residence on February 2, 1941, and has remained a permanent resident since.
Bouchage completed his studies which had been interrupted by the war at the University of California, Santa Barbara Branch, from which he received a bachelor of arts degree in June 1942. While there he duly registered with his local draft board pursuant to the Selective Training and Service Act of 1940.
In October of 1942 Bouchage came east to inquire about a fellowship in comparative literature at Harvard. While he was in the east he went to the Fighting French offices in New York, seeking to enlist in the Fighting French forces which, since the fall of France, had been continuing the struggle against the Germans. He was told that the Fighting French were setting up an organization and bringing in officers to train forces in the United States at Ft. Benning, Georgia, but were not yet ready to receive enlistments. Petitioner at that time had had no military training since his military class had not been called before he left France. He was requested to keep in touch with the Fighting French headquarters, and left his name with them.
Up to that time, while he had registered with his draft board, Bouchage had received no word or notice from it. When he returned to California about a week later he received the usual selective service questionnaire (DDS Form 40) from his draft board, to be returned by November 2. He duly filled out the questionnaire and filed it on October 31, 1942.
A week later, on November 8, 1942, the allied invasion of North Africa, known as the 'Torch' operation, commenced. The difficult diplomatic relations which the United States had been maintaining with the French government were immediately broken by Vichy. Without going into the details of the invasion and the swiftly moving political events which accompanied it, by November 10, 1942 the allied troops were firmly established in French North Africa and General Eisenhower had arranged with General Giraud to be Commander in Chief of the French forces there in cooperation with the Allied forces. On November 11, 1942 President Roosevelt in his Armistice Day speech stated that 'As a result of recent events -- very recent -- the United States and the United Nations forces are being joined by a large number of the fighting men of our traditional ally France. On this day, of all days, it is heartening for us to know that the soldiers of France go forward with the United Nations.' The next day General Pershing wrote a widely publicized letter to the President appealing to his former French comrades in arms 'to form their battalions' and join the ranks of the United Nations in the battle for freedom.
Within a few days, on November 16, 1942, Bouchage, then just turned 20, who had been following these stirring events with enthusiasm, went to his draft board and talked to a member of the board. He told him of his attempt to join the Fighting French forces and explained that with his background and knowledge of both French and English he felt he could be of more value to the allied cause with the Fighting French than with the American forces and would be able to get overseas more rapidly. He said that the French Military Mission had told him that they were about to train troops in the United States but were not yet ready to accept enlistments. He asked how he could obtain permission to serve with the Fighting French instead of with the American forces.
Petitioner was advised by the local draft board member that the only way in which he could be permitted to serve in the French forces rather than with the Americans was to secure relief from the draft and to sign Draft Board Form DDS 301 entitled 'Application by Alien for Relief from Military Service', the form prescribed by the Selective Service Regulations for citizens of neutral countries who sought to be relieved under Section 3(a) of the Selective Training and Service Act of 1940 as amended. The form DDS 301 which was presented to the petitioner recited that he was a citizen of France 'which is neutral in the present war'. It went on to say:
'I do hereby make 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 in accordance with the Act of Congress approved December 20, 1941. 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 read the application and inquired whether he could get permission to enlist in the French forces without having to give up his citizenship. He was told that this was not possible and that his only recourse was to make application on Form DDS 301.
The draft board member did not suggest and apparently did not attempt to consult with higher authority or to refer the question to Selective Service Headquarters. Petitioner did not consult with his parents who were in California at the time, or with anyone else. He signed the form then and there on the advice of the draft board member.
On November 24, 1942 he was classified by his local board as IV-C on the basis of his application.
In January 1943 petitioner returned east to take up the fellowship which had been granted him at Harvard. Before doing so, however, he again called at the Fighting French offices seeking to enlist. He was informed that a cadre of escaped French officers was being organized at Ft. Benning to train Fighting French troops but that they were still not ready to accept enlistments.
He then went on to Harvard and during the spring and summer of 1943 worked for his master's degree under his fellowship. However, at least once a month he came to New York to see the Fighting French concerning his enlistment. He also worked as an instructor to enlisted men in the United States Army at Boston University under the specialized army training program. The salary which he received from this work he turned over to the Free French War Relief.
In September 1943, when he had completed work for his master's degree at Harvard, Bouchage made another of his periodic visits to the Fighting French offices in New York before returning to California. They then, for the first time, accepted his actual enlistment in the Fighting French forces but said they were not yet ready to call him to active duty. On November 1, 1943 his French passport was endorsed with a Free French visa reading 'Good to go to North Africa', signed by the Chief of the Delegation of the French Committee of National Liberation. On November 8, 1943 his local draft board issued a permit at the request of the Fighting French forces, permitting him to depart from the United States for French Africa 'to serve in the French Armed Forces'.
On January 10, 1944 Bouchage was ordered to report for duty at the French Military Mission in New York. After preliminary training in the United States and promotion to sergeant, he was sent to North Africa in the summer of 1944. He served with a French Ordnance Company, took part in the landings in the south of France, served in Alsace-Lorraine, in the Ardennes and through other combat operations, and was designated as an Acting Lieutenant. In August of 1945 he was sent on a mission to the United States as an interpreter. He received an honorable discharge from the French forces and was mustered out in February 1946, after more than two years of service, much of it in combat.
Since then Bouchage has been engaged in responsible business activities here and there is no suggestion that he is not of high moral character or otherwise fully eligible for citizenship. His parents have become American citizens and his sister is married to a Captain in the United States Navy.
Under Section 315(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1426(a), which the Government asserts governs this case, citizenship may be barred under two conditions, first, an application for exemption from military service on the ground of alienage, and second, relief from such service on that ground. Citizenship may not be barred unless both conditions are present.
The questions here center about the first condition of ineligibility in the 1952 statute, application for relief on the ground of alienage. There was a similar condition of ineligibility under more stringent Section 3(a) of the Selective Training and Service Act of 1940 as amended, which provided that a citizen or subject of a neutral country might be relieved from liability for training and service if he made application to be relieved, but should thereafter be debarred from becoming a citizen of the United States.
The Examiner recommends denial of citizenship on the theory that since petitioner formally made application to be relieved from military service under Section 3(a) of the Act of 1940 on the ground that he was a citizen of a neutral country, France, and was classified IV-C and relieved from military service on that ground, he is absolutely debarred from the privilege of citizenship under the statute. It is urged that since these two conditions are met the bar imposed ...