The United States appeals from a memorandum decision and order of the District Court for the Southern District of New York, Wyatt, J., granting petition for naturalization of appellee Villamar. Affirmed .
Before Feinberg, Chief Judge, Van Graafeiland, Circuit Judge, and Maletz, Judge, United States Court of International Trade.*fn*
The United States appeals from a decision of the United States District Court for the Southern District of New York, Inzer B. Wyatt, J., granting appellee's petition for naturalization because he was exempted from compulsory military service from October 7, 1943 to March 13, 1945, by virtue of his status as a neutral alien.
The facts are not in dispute. Appellee was born in Ecuador on August 22, 1909 and is a citizen of that country. He was admitted to the United States on September 24, 1929 and has been a lawful permanent resident since then. On July 17, 1941, appellee registered with the Selective Service System and due to his alienage was automatically classified as IV-C until November 10, 1942.*fn1 From November 10, 1942 until October 7, 1943, with the exception of a four month period during which he was classified as III-A,*fn2 appellee was classified I-A (available for military service).
On October 7, 1943, appellee applied for relief from military service on the ground that he was an alien. On that same day Selective Service determined that appellee was a citizen of a neutral country and reclassified him as IV-C (alien unavailable for military service).*fn3 Subsequently, on March 13, 1945, appellee was reclassified I-A and ordered to report for induction since Ecuador was no longer a neutral country but rather a cobelligerent. His induction was postponed, however, and on June 5, 1945 he was deemed by Selective Service to be a person engaged in an activity in support of the national health, safety or interest and was classified as II-A.*fn4 On September 20, 1945, he was classified as IV-A (overage for service).*fn5
On December 29, 1978, appellee filed a petition for naturalization in the District Court, which was granted on October 29, 1980 over the adverse recommendation of the naturalization examiner. This appeal followed.
We note at the outset that although appellee received his exemption as an alien pursuant to section 3(a) of the Selective Training and Service Act of 1940,*fn6 his eligibility for citizenship is to be determined in accordance with section 315(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1426(a),*fn7 which provides that
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 two-pronged prerequisite for the loss of eligibility for United States citizenship. The alien must be one who "applies or has applied for exemption or discharge" from military service and "is or was relieved or discharged" from that service.
Astrup v. Immigration and Naturalization Service, 402 U.S. 509, 512-513, 91 S. Ct. 1583, 1585-1586, 29 L. Ed. 2d 68 (1971).
In the present case, the District Court concluded that section 315(a) requires that an alien be completely and effectively relieved from military service in order to be barred from citizenship and that since appellee had not been so relieved, his citizenship was not precluded. Appellant disagrees and urges us to find that appellee was sufficiently relieved from service so as to make him ineligible for citizenship.
Thus, the sole issue here is whether appellee was "relieved" from military service within the meaning of section 315(a) so as to be barred from citizenship.
Facts quite similar to those present here were considered by this court in United States v. Hoellger, 273 F.2d 760 (2d Cir. 1960). That case concerned the naturalization petition of an alien who had been exempt from military service by virtue of a treaty between Germany and the United States. The treaty was abrogated whereupon the alien was reclassified I-A and inducted into the armed forces. In Hoellger, as here, the government relied on section 315(a) and argued that the alien was barred from citizenship because he had been partially relieved from military service. The court rejected this argument and concluded that when Congress used the words in section 315(a) "relieved ... from ... service" it meant "effectively relieved." 273 ...