military service "and is or was relieved or discharged from such
training or service." A similar, but not identical, declaration
is found in the definition of ineligibility to citizenship
announced in Sec. 101(a) (19) of the 1952 Act, also reproduced at
an earlier point. The legislative materials indicate that the
1952 codification had a dual purpose: (a) to record in the
naturalization statute the disqualification forged by the
selective service statutes, (b) to make certain that liabilities
previously incurred under those statutes would not lapse. See S.
Rep. 1515, 81st Cong., 2d Sess., pp. 725, 731.
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 Sec. 315 of the 1952
Act his access to naturalization benefits thus is not foreclosed.
See United States v. Bazan, 1955, 97 U.S.App.D.C. 108,
228 F.2d 455; Kiviranta v. Brownell, supra; Petition of Caputo,
It is not necessary, however, to rest the disposition of
Felleson's case on such
a generalized estimation of the statute. For Congress itself
resolved his dilemma by a legislative dispensation granting
naturalization benefits to aliens who served actively and
honorably in the United States armed forces for at least 90 days
between June 25, 1950 and July 1, 1955 (spanning the period of
Korean military conflict). Public Law 86, 83rd Cong. 1st Sess.
This legislation, like its predecessor relating to World War
II,*fn4 did not withhold the naturalization bounty from aliens
who at one time had solicited exemption but had in fact served
actively and honorably during the designated interval.
Felleson's experience tells us that at one time the
administrative view of the Service was inhospitable to his plea.
However, in June of 1954 the Service altered its view and took
the position that an alien who applied for exemption from
military service and who thereafter became eligible for benefits
under Public Law 86 by serving actively and honorably in the
armed forces of the United States for 90 days between June 25,
1950 and July 1, 1955 is not ineligible to citizenship. This
change in the administrative view of the Service is reflected in
the favorable recommendation in the petitioner's case.
It could be contended, possibly, that this petitioner cannot
benefit from Public Law 86, which has expired, since his petition
is presented under the general provisions of the naturalization
law. But the administrative view of the Service does not project
such a limited appraisal of the legislative design. Rather it
declares, and I fully agree, that the military service, coupled
with the legislative dispensation, extinguished the perpetual
debarment from naturalization benefits. Public Law 86 was a
remedial statute, designed to reward aliens who served in our
armed forces during the critical period of the Korean affray. I
can see no justification for finding that the former disability
revived when the cutoff date for filing petitions under Public
Law 86 had passed, and I hardly think that one who seasonably
presented an application under that statute can be penalized when
his application was rejected under an administrative ruling later
It is my opinion, therefore, that an alien who applied for
exemption from military service and thereafter served actively in
the armed forces of the United States for 90 days between June
25, 1950 and July 1, 1955 is not ineligible to citizenship, even
though his petition is filed under the general provisions of the
The petition will be granted.