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December 30, 1958


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.

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
  United States.
    "(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 ...

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