The opinion of the court was delivered by: Igoe, District Judge.
The petitioner, Egon Ingvar Felleson, seeks citizenship under
the general provisions of the naturalization law. No objection
looms except the possible roadblock erected by a claim of
exemption from military service made May 8, 1951, during our
involvement in the Korean conflict. Felleson has asserted that he
was advised at that time that the filing of this application was
the only way he could obtain permission to visit his dying mother
in Sweden. After his mother's death he evinced willingness to
serve and someone, not identified in the record, has written
"Cancelled" across his exemption application.
On April 1, 1952 Felleson was inducted into the United States
Armed Forces and served almost two years, including combat action
in Korea. Among his military decorations were the Korean Service
Ribbon with two Bronze Service Stars, the National Defense
Service Medal, and the United Nations Service Medal. On March 9,
1954 he was honorably discharged.
While in the Army overseas Felleson mailed an application for
naturalization to the Central Office of the Immigration and
Naturalization Service in Washington, D.C. This application
relied on Public Law 86, 83rd Cong., 1st Sess., 8 U.S.C.A. §
1440a et seq., which awarded
enlarged naturalization rights to aliens who rendered honorable
military service during the Korean episode. However, on February
24, 1954 the Service advised him that he had forfeited
naturalization privileges because of his application for draft
exemption, and that the subsequent military activity had not
expunged the stigma. This administrative view of the Service
later was altered. However, the special benefits of Public Law 86
expired December 31, 1955 and are no longer available.*fn1
The Service has recommended that the petition for
naturalization be granted. The underlying questions manifestly
have wide impact.
Section 315 of the Immigration and Nationality Act of 1952,
8 U.S.C.A. § 1426, 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
"(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."
Section 101(a) (19) of the Immigration and Nationality Act,
8 U.S.C.A. § 1101(a) (19), contains the following definition:
"The term `ineligible to citizenship,' when used in
reference to any individual, means, notwithstanding
the provisions of any treaty relating to military
service, an individual who is, or was at any time,
permanently debarred from becoming a citizen of the
United States under section 3(a) of the Selective
Training and Service Act of 1940, as amended (54
Stat. 885; 55 Stat. 844), or under section 4(a) of
the Selective Service Act of 1948, as amended (62
Stat. 605; 65 Stat. 76), or under any section of this
Act, or any other Act, or under any law amendatory
of, supplementary to, or in substitution for, any of
such sections or Acts."
Since World War I the various selective service laws have
allowed certain classes of aliens to apply for relief from
conscription but have specified in each instance that the
applicant thereafter would be debarred from becoming a citizen of
the United States.*fn2 While these edicts originally were not
inscribed in the naturalization statute, they unquestionably
generated the loss of citizenship benefits. See Ceballos v.
Shaughnessy, 1957, 352 U.S. 599, 77 S.Ct. 545, 1 L.Ed. 2d 583.
Few would question the inherent reasonableness of the statutory
plan. In honoring the alien's plea for relief from the draft
Congress gave the alien "a choice of exemption and no
citizenship, or no exemption and citizenship." Moser v. United
States, 1951, 341 U.S. 41, 46, 71 S.Ct. 553, 556, 95 L.Ed. 729.
An alien who made a voluntary choice to escape military service
necessarily accepted the concomitant loss of naturalization
privileges. Petition of Skender, 2 Cir., 1957, 248 F.2d 92,
certiorari denied 355 U.S. 931, 78 S.Ct. 411, 2 L.Ed. 2d 413; 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. A key consideration is that
this is a perpetual ban. It could be urged, perhaps, that
allowance should be made for the passage of time or for change in
circumstances, but Congress has not authorized such alleviation.
One perplexing situation is confronted when the alien who has
applied for exemption later becomes available for military
service, either through his voluntary choice or upon a change in
the statute or regulation. The selective service laws have not
dealt with this contingency and the selective service regulations
never have directly sanctioned a withdrawal of the exemption
application. It has been argued that an alien who later became
available for military participation was not relieved from
military duty and consequently is not debarred from citizenship.
Petition of Caputo, D.C.E.D. 1954, 118 F. Supp. 870; Kiviranta v.
Brownell, D.C. 1956, 141 F. Supp. 435. But when the alien's
availability did not culminate in physical induction, this
hypothesis is rejected by an overwhelming array of authorities,
including Petition of Cuozzo's Naturalization, 3 Cir., 1956,
235 F.2d 184; 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; United States v. Kenny, 2 Cir., 1957, 247 F.2d 139; Jubran v.
United States, 5 Cir., 1958, 255 F.2d 81.
The picture is quite different, however, when the alien
actually has become a member of the armed forces. It is utterly
incongruous to suppose that a person who in fact has worn the
uniform and has performed military functions should be denied the
naturalization boon because of a relinquished exemption claim. A
distinction doubtless could be made if immunity was enjoyed
during hostilities and the military involvement took place after
the shooting stopped. Cf. United States v. Kenny, supra. But it
seems that when the military duty was undertaken under reasonably
comparable conditions, the denial of citizenship benefits to a
combat veteran cannot be justified in logic or equity or on the
basis of legislative intent. Under such circumstances it might
well be found that the applicant was not relieved from military
obligations and that under the injunction of ...