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IN RE NATURALIZATION PETITION OF ANTHONY CARRELLI

February 22, 1979

In the Matter of the Naturalization Petition of Anthony CARRELLI


The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

Anthony Carrelli, a twenty-eight year old native and citizen of Italy, who was admitted to the United States as a permanent resident alien on November 10, 1960, and who has resided continuously in this country since that time, has filed a petition for naturalization under Section 316(a) of the Immigration and Nationality Act, 8 U.S.C. § 1427(a). A designated naturalization examiner of the Immigration and Naturalization Service has recommended that the "petition for naturalization be denied on the grounds that petitioner has not established that he is not barred from naturalization by virtue of the provisions of Section 315 of the Immigration and Naturalization (sic) Act (8 U.S.C. § 1426)," which provides in pertinent part that:

 
"(a) 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."

 For the reasons which follow, this Court finds that in the circumstances of this case Section 315 does not act as a bar to naturalization and that the instant petition for naturalization should be granted.

 I

 The record of the preliminary examination by the Immigration and Naturalization Service, the report of the designated naturalization examiner and the undisputed facts contained in the papers submitted by petitioner to this Court indicate the following relevant facts.

 Petitioner first registered with the Selective Service when he was eighteen years old and at that time was given a student status. Subsequently, in either late 1969 or early 1970, petitioner was classified I-A, the classification given to registrants immediately available for induction, and following a pre-induction physical examination, he received an induction notice. Thereafter, on February 26, 1970 petitioner filed with his local board a form entitled "Request by Permanent Resident Alien for Relief from Training and Service in the Armed Forces of the United States Pursuant to Treaty." That form, which was signed by petitioner, recited that there was in effect a treaty between the United States and Italy under which Italian nationals were exempt from military service while in the United States and further set forth In toto the provisions of Section 315 of the Immigration and Nationality Act, 8 U.S.C. § 1426, and recited that petitioner had read and understood that section. The designated naturalization examiner found that at the time he executed the form request for relief petitioner was an intelligent person who understood the English language and that petitioner understood the meaning of the request for exemption.

 After petitioner filed the request for exemption, the earlier induction notice was cancelled and issuance of a further induction notice was postponed. Petitioner's notification of these actions apparently consisted of a "Postponement of Induction" notice dated April 16, 1970. However, petitioner remained in classification I-A for almost two years after he filed his request for exemption until February 24, 1972 at which time he was given a IV-C classification as a permanent resident alien exempt from military service. Petitioner asserts that, after cancellation of his one induction notice, but while being kept in classification I-A, he remained apprehensive about his possible induction and that he made repeated requests to the government for clarification of his status but received no response to those requests for clarification. In at least partial substantiation of that assertion, the record indicates that in a letter dated April 22, 1970, petitioner wrote to his local board requesting "prompt clarification of the "Postponement of Induction' notice dated 4/16/70." The record does not reflect that there was ever any response to petitioner's letter.

 During the approximately two-year period following his request for exemption while petitioner remained in classification I-A, the United States Government instituted a new random selection procedure for selective service, commonly referred to as the lottery system. Under that system a registrant between the ages of nineteen and twenty-six classified as I-A was placed in a first-priority selection group for essentially only one year. See 32 C.F.R. § 1631.7(c)(2) (1970), (1971). Registrants were called from this first-priority selection group in the order of their random selection number assigned by lottery. See 32 C.F.R. § 1631.5 (1970), (1971). If after that one-year period a registrant had not been called because his random selection number had not been reached, that individual would be dropped to a lower priority selection group. See 32 C.F.R. § 1631.7(a)(3)(i) and (ii) (1970), 32 C.F.R. § 1631.7(c) (3) and (d)(2), (3) (1971). As was stated by the naturalization examiner, "this lottery system effectively relieved anyone from military service whose number was not reached within the one year period in which he was in this first priority group." According to the above procedures, petitioner at the time he received his IV-C exemption in February 1972, would no longer have been in a first-priority selection group but would have been in a lower priority selection group and thus would have been effectively relieved from military service. *fn1"

 II

 Section 315(a) of the Immigration and Nationality Act, 8 U.S.C. § 1426(a), sets forth a two-pronged requirement before an alien may be deemed permanently ineligible for United States citizenship. First, the alien must be one who "applies or has applied for exemption or discharge" from military service. Second, the alien must be one who "is or was relieved or discharged" from that service. Astrup v. Immigration and Naturalization Service, 402 U.S. 509, 91 S. Ct. 1583, 29 L. Ed. 2d 68 (1971). There is no question that petitioner applied for exemption from military service on the ground of his alienage. The issue before this Court is whether the second prong of the requirements of Section 315(a) has been established in such a manner that the permanent bar to United States citizenship may properly be invoked by the government against the petitioner. *fn2"

 In the leading case of Astrup v. Immigration and Naturalization Service, supra, the Supreme Court discussed the statutory provisions relevant to an alien's exemption from military service as creating a contract, a bargain between the parties. Focusing on the second prong of the requirements of Section 315(a), the Court stated:

 
"We think that Congress used the words "is or was relieved' to provide that an alien who requests exemption from the military service be held to his agreement to relinquish all claims to naturalized citizenship Only when the Government abides by its part of the ...

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