decided: January 13, 1960.
UNITED STATES OF AMERICA, RESPONDENT-APPELLANT,
OTTO KLAUS GUNTHER HOELLGER, PETITIONER-APPELLEE
Before Washington, Waterman and Moore, Circuit Judges.
WATERMAN, Circuit Judge.
This case presents an important question arising under Section 315(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1426(a).
The district court, in an unreported decision, granted the petition for naturalization of appellee, Otto Hoellger, and the Government has appealed.
The facts are simple and undisputed. Appellee, a native and formerly a citizen of Germany, entered this country for permanent residence on December 3, 1951. Soon thereafter, pursuant to the requirements of 50 U.S.C.A.Appendix § 453, he registered for selective service. During the summer of 1952 he was classified I-A. On September 11, 1952, his Local Board, on its own initiative, reclassified appellee IV-C, a category which indicated that Hoellger was an alien exempt from selective service by virtue of a treaty in force between the alien's nation and the United States. On May 13, 1953 (a date more than four months after December 24, 1952, the effective date of the Immigration and Nationality Act of 1952) the Local Board again acting on its own initiative sent appellee a form application for exemption together with the explanatory statement that if the form were filled out and returned appellee's exempt status would continue in effect.*fn1 Appellee filled out the form and returned it to the Board. Appellee's IV-C classification continued until February 9, 1955, when his Board reclassified him as I-A because of the abrogation of the treaty arrangement with Germany pertaining to military service. Almost immediately thereafter appellee received an induction notice. He was inducted on April 18, 1955 and, after serving his full term, received an honorable discharge on April 6, 1957. Subsequent to his discharge, on August 8, 1957, appellee filed a petition for naturalization.
The parties agree that appellee's eligibility for citizenship is to be determined by Section 315(a) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1426(a), which reads as follows:
"Notwithstanding the provisions of section 405(b) of this Act, 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."
A careful reading of this section would seem to require the conclusion that to be permanently ineligible for citizenship an alien must not only apply for exemption, but in addition he must be relieved from military service. If there had been any uncertainty as to this interpretation it has been dispelled by Ceballos v. Shaughnessy, 1957, 352 U.S. 599, 606, 77 S. Ct. 545, 549, 1 L. Ed. 2d 583, where Justice Brennan, speaking for a unanimous court, defined Section 315(a) as creating a "two-pronged requirement for the determination of permanent ineligibility for citizenship." Applying this authoritative construction to the facts here, solution becomes easy. Even if we assume that appellee applied for exemption, inasmuch as his induction was ordered by the Local Board at a time selected by it and inasmuch as he served a full term, it becomes obvious that appellee has not been relieved from military service. Hence he is eligible for citizenship.
The Government seems to argue that one who serves is "relieved from service" if his involuntary induction is delayed. It is difficult to reconcile this interpretation with the normal meaning of the words used in Section 315(a). It seems more reasonable to conclude that when Congress used the words "relieved * * * from * * * service" it meant effectively relieved. An alien who has actually served in the Armed Forces under compulsion of the executive branch of the Government cannot be said to have been effectively relieved from service. Moreover, the cases the Government cites do not support the proposition that under Section 315(a) eligibility for citizenship is lost despite the fact of military service resulting from involuntary induction.*fn2 Such might well have been the result prior to the effective date of the 1952 Immigration and Nationality Act*fn3 when the consequences of an alien's application for exemption from military service were determined by Section 3(a) of the Selective Training and Service Act of 1940, formerly 50 U.S.C.A.Appendix, § 303(a), and Section 4(a) of the Selective Service Act of 1948, 50 U.S.C.A.Appendix, § 454(a).*fn4 Under these acts the mere application for exemption could be sufficient to disqualify permanently the alien from citizenship.*fn5 See Ceballos v. Shaughnessy, supra, 352 U.S. at pages 604-605, 77 S. Ct. at pages 548-549. But, as Ceballos v. Shaughnessy, supra, 352 U.S. at page 606, 77 S. Ct. at page 549, makes clear, Section 315(a) produced a fundamental change in the law by substituting the "two-pronged requirement."*fn6
In view of the above we hold that appellee was not relieved from service within the meaning of Section 315(a); and we also point out that the principle of "elementary fairness" suggested in Moser v. United States, 1951, 341 U.S. 41, 47, 71 S. Ct. 553, 95 L. Ed. 729 may well be applicable here. We affirm the judgment of the district court.
Cases Where Alien Filed Exemption Application at Time When Section 3(a) of the Selective Service Act of September 16, 1940 Was in Force.
a. Supreme Court: McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S. Ct. 224, 95 L. Ed. 173; Moser v. U. S.,*fn7 1951, 341 U.S. 41, 71 S. Ct. 553, 95 L. Ed. 729; Ceballos v. Shaughnessy, 1957, 352 U.S. 599, 77 S. Ct. 545, 1 L. Ed. 2d 583.
b. Court of Appeals for the Second Circuit: Benzian v. Godwin, 1948, 168 F.2d 952; Mannerfrid v. U. S., 1952, 200 F.2d 730; Petition of Coronado, 1955, 224 F.2d 556; Velasquez v. United States, 1957, 241 F.2d 126; Petition of Skender, 1957, 248 F.2d 92, certiorari denied 355 U.S. 931, 78 S. Ct. 411, 2 L. Ed. 2d 413; Petition of Mirzoeff, 1958, 253 F.2d 671;*fn7*fn8 Husney v. United States, 1958, 254 F.2d 958.*fn8
c. Courts of Appeals for Other Circuits: Machado v. McGrath, 1951, 89 U.S.App.D.C. 70, 193 F.2d 706, certiorari denied 342 U.S. 948, 72 S. Ct. 557, 96 L. Ed. 705;*fn7 Barreiro v. McGrath, 9 Cir., 1954, 215 F.2d 585, certiorari denied 348 U.S. 887, 75 S. Ct. 207, 99 L. Ed. 697; United States v. Bussoz, 9 Cir., 1955, 218 F.2d 683; Ballester Pons v. United States, 1 Cir., 1955, 220 F.2d 399, certiorari denied sub nom. Pons v. United States, 350 U.S. 830, 76 S. Ct. 62, 100 L. Ed. 741;*fn8 United States v. Bazan, 1955, 97 U.S.App.D.C. 108, 228 F.2d 455;*fn7*fn8 Brownell v. Rasmussen, 1956, 98 U.S.App.D.C. 300, 235 F.2d 527, certiorari dismissed 355 U.S. 859, 78 S. Ct. 114, 2 L. Ed. 2d 66; Giz v. Brownell, 1956, 99 U.S.App.D.C. 339, 240 F.2d 25; Savoretti v. Small, 5 Cir., 1957, 244 F.2d 292; Jubran v. United States, 5 Cir., 1958, 255 F.2d 81;*fn8 Memishoglu v. Sahli, 6 Cir., 1958, 258 F.2d 350.
d. District Courts Within Second Circuit: Petition of Dweck, E.D.N.Y.1950, 106 F.Supp. 169; Petition of Molo, S.D.N.Y.1952, 107 F.Supp. 137; Petition of Miranda, E.D.N.Y.1953, 111 F.Supp. 481;*fn8 Petition of Berini, E.D.N.Y.1953, 112 F.Supp. 837;*fn7 Petition of Caputo, E.D.N.Y.1954, 118 F.Supp. 870;*fn7 Petition of Zumsteg, S.D.N.Y.1954, 122 F.Supp. 670;*fn7*fn8 Petition of Fleischmann, S.D.N.Y.1956, 141 F.Supp. 292;*fn8 Petition of Gourary, S.D.N.Y.1957, 148 F.Supp. 140;*fn7*fn8 Petition of Pinto, S.D.N.Y.1957, 152 F.Supp. 892;*fn8 Petition of Bruce, S.D.N.Y.1958, 163 F.Supp. 493.*fn8
e. District Courts in Other Circuits: Petition of Ajlouny, E.D.Mich.1948, 77 F.Supp. 327; Petition of Kutay, S.D.Calif. 1954, 121 F.Supp. 537;*fn7*fn8 Petition of Mauderli, N.D.Fla.1954, 122 F.Supp. 241;*fn8 Petition of Ahrens, D.N.J.1956, 138 F.Supp. 70;*fn7*fn8 Kiviranta v. Brownell, D.D.C.1956, 141 F.Supp. 435;*fn7 Petition of Planas, D.N.J.1957, 152 F.Supp. 456;*fn7*fn8 Petition of Calvo, D.N.J.1958, 161 F.Supp. 761;*fn8 Petition of DeCampos, D.N.J.1958, 163 F.Supp. 173;*fn8 Petition of Bergman, D.Minn.1959, 173 F.Supp. 880.*fn8
Cases Where Alien Filed Exemption Application at Time When Section 4(a) of the Selective Service Act of June 24, 1948 Was in Force.
a. Court of Appeals for the Second Circuit: Paris v. Shaughnessy, 1957, 247 F.2d 1, certiorari denied 355 U.S. 926, 78 S. Ct. 384, 2 L. Ed. 2d 357.
b. Courts of Appeals for Other Circuits: Petition of Cuozzo, 3 Cir., 1956, 235 F.2d 184;*fn8 Barber v. Rietmann, 9 Cir., 1957, 248 F.2d 118, certiorari denied, 355 U.S. 923, 78 S. Ct. 365, 2 L. Ed. 2d 353; Brunner v. Del Guercio, 9 Cir., 1958, 259 F.2d 583;*fn7 Gilligan v. Barton, 8 Cir., 1959, 265 F.2d 904.*fn8
c. District Courts Within Second Circuit: Petition of Elken, E.D.N.Y.1958, 161 F.Supp. 823.
d. District Courts in Other Circuits: Schenkel v. Landon, D.Mass.1955, 133 F.Supp. 305;*fn8 Petition of Carvajal, N.D.Calif.1957, 154 F.Supp. 525;*fn8 Petition of Felleson, N.D.Ill.1958, 169 F.Supp. 471, 472.*fn7*fn8
e. State Courts: Petition of Schulz, 1956, 384 Pa. 558, 121 A.2d 164;*fn7*fn8 Petition of Kauffmann, 1959, 394 Pa. 625, 148 A.2d 925.*fn7*fn8
Cases Where Alien Filed Exemption Application at Time When Section 315(a) of the Immigration and Nationality Act of June 27, 1952 Was in Force.
a. Cases Granting Citizenship Where Alien Entered Armed Forces: Petition of Hoellger (present case below; decision unreported).
b. Cases Granting Citizenship Where Alien Did Not Enter Armed Forces: Petition of Sally, D.C.S.D.N.Y.1957, 151 F.Supp. 888.
c. Cases Denying Citizenship Where Alien Did Not Enter Armed Forces: United States v. Kenny, 2 Cir., 1957, 247 F.2d 139; United States ex rel. Rosio v. Shaughnessy, D.C.S.D.N.Y.1955, 134 F.Supp. 217; Petition of Burky, D.C.E.D.N.Y.1958, 161 F.Supp. 736; Petition of Bergin, D.C.D.N.J.1959, 173 F.Supp. 883.
d. Cases Denying Citizenship Where Alien Entered Armed Forces: Petition of Cerati, D.C.N.D.Cal.1957, 160 F.Supp. 531.*fn9
MOORE, Circuit Judge (concurring in the result).
I concur in the result but for somewhat different reasons. Appellee fully understood the consequences of his election in claiming draft exemption.*fn1 He traded ineligibility to become a citizen against relief from service - not a mere temporary stay or deferment subject to cancellation. However, the government's part of the bargain was that he be relieved from service. When the government by its own act destroyed Hoellger's exempt status by changing its arrangements with Germany, thereby making its nationals subject to service in our armed forces and thereafter compelled him to serve, it took away the consideration for the original bargain. Because the government deprived Hoellger of that which it represented to him would be granted, it is in no position to insist on enforcement of citizenship ineligibility, the price he was paying for that which he did not receive.