Giz v. Brownell

BAZELON, Circuit Judge.

Section 3(a) of the Selective Service Act of 1940, 50 U.S.C.App. § 303(a) (1946),^* makes all aliens “residing in the United States” liable for military service. It provides, however, that any citizen of a neutral nation may be relieved from service upon application (Form DSS-301), and that persons thus relieved will thereafter be barred from citizenship. Regulation 611.21 (32 C.F.R. 611.21) promulgated thereunder provided for determination of non-residence upon filing application (Form DSS-302) within three months after date of entry or after becoming liable for service, whichever was later. This was supplemented by 611.21-1 (32 C.F.R. 611.21-1) on June 27, 1945, permitting application to be filed after three months.

In these three cases, appellants, Turkish citizens who were in the United States pursuant to student non-immigration visas under § 4(e) of the Immigration Act of 1924, claimed draft exemption as neutral aliens. Under § 212(a) (22) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1182(a) (22) (1952), persons ineligible for citizenship are ineligible for permanent entry immigration visas. The Board of Immigration Appeals, in deportation proceedings, ruled that appellants were ineligible for citizenship by reason of their claims for draft exemption and ordered their departure. Appellants challenged this administrative action in these declaratory judgment suits. Judgments were allowed against them.¹ These appeals followed.

No. 12873

Appellant Gurcay entered the United States in 1940 on a student’s visa and registered under the Selective Service Act in 1942. He claimed draft exemption as a neutral alien on June 3, 1942, and failed to apply for a determination of non-residence. The effect of such failure, we noted in Machado v. McGrath, 1951, 90 U.S.App.D.C. 70, 193 F.2d 706, certiorari denied, 1952, 342 U.S. 948, 72 S.Ct. 557, 96 L.Ed. 705, is that the alien’s status as an alien “residing in the United States” may be taken as confessed for purposes of § 3(a) of the Selective Service Act.²

Appellant says the regulations should not operate in this fashion against him because his election not to serve was not a matter of free choice but was compelled by his allegiance to Turkey as a reserve officer in its army. But we do not see how this allegiance precluded him from seeking a determination of non-residence, the remedy provided by the regulations.

Finally appellant argues (as do the appellants in Nos. 12839 and 13043) that his efforts to enter our armed forces, after Turkey abandoned its neutrality in 1945 and became a co-belligerent, remove the statutory bar to citizenship. His argument in this respect is even weaker than that in Machado where the alien sought to withdraw his exemption claim and enlist in the United States Army before his country became a co-belligerent. 90 U.S.App.D.C. at pages 71-72, 193 F.2d at page 707. Our holding in Machado that the statutory bar to citizenship is not thus removed, 90 U.S.App.D.C. at page 74, 193 F.2d at page 710, applies a fortiori here.

No. 13043

Appellant Moran entered the United States in March 1941 on a student’s visa which was extended to, but not beyond, February 24, 1944. He registered in August 1942 and claimed draft exemption on January 5, 1943. On August 20, 1945, after deportation proceedings had been instituted against him for overstaying his visa, he filed an “Application for Determination of Residence.” It does not appear that this application was ever considered or acted upon. In these circumstances, appellant’s status as an alien “residing in the United States” may be taken as confessed under the regulations. Machado v. McGrath, supra; Mannerfrid v. United States, supra note 2.

No. 12839

Appellant Giz entered the United States in 1939 on a student’s visa and remained in a lawful student status until July 21, 1945. In 1940 he registered with his local draft board. He claimed draft exemption December 31, 1942. In June 1944, however, he filed an application for a determination of non-residence. Notwithstanding his failure to file within the time prescribed by the regulations then in effect, the draft board considered the application on its merits before denying it.

My colleagues are of the view that, notwithstanding such consideration, Giz’ status, like that of the other two appellants, as an alien “residing in the United States” may be taken as confessed for the purpose of § 3(a) of the Selective Service Act. This view, with which- I disagree, is fully stated in Judge DANAHER’S separate opinion herein. For reasons noted in the footnote,³ I would reverse and remand for further administrative proceedings.

As another ground for avoiding the bar of ineligibility, Giz alleges that he claimed draft exemption under mistake. He says that he signed the claim for exemption at the request of the chief clerk of the draft board and hence did not have the “ ‘opportunity to make an intelligent election’ between being subject to the draft on the one hand, and being exempt but losing the right to become a citizen on the other.” Machado v. McGrath, 90 U.S.App.D.C. at page 74, 193 F.2d at page 709, citing Moser v. United States, 1951, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729. We find no basis in this record for disturbing appellee’s adverse factual determination. See Mannerfrid v. United States, supra.

No. 12873 affirmed.

No. 13043 affirmed.

* Now Universal Military Training and Service Act, 50 U.S.C.A.Appendix, § 454.

1 . In Nos. 12873 and 13043 by summary judgment; in No. 12839 after trial.

2 . See also Mannerfrid v. United States, 2 Cir., 1952, 200 F.2d 730, certiorari denied 1953, 345 U.S. 918, 73 S.Ct. 729, 97 L.Ed. 1351.

3 . Although Giz’ application was filed late, it was considered on its merits. Hence the regulations’ timely filing requirements must be deemed to have been waived. And this accords with Selective Service policy followed even before the time for filing was extended by supplementation of the regulations in 1945. See Problems of Selective Service (1952) Text p. 107 and Appendices A-C p. 40; and 32 C.F.R. 611.29(b).

From all that appears in this record, in passing on the merits of the application the Director of Selective Service based his determination that appellant was “residing in the United States” solely upon the applicant’s lawful status as a temporary student visitor. On that basis, I think the Supreme Court’s decision in McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, especially the concurring opinion of Mr. Justice Jackson, requires us to hold that determination erroneous as a matter of law. Such an error, in my view, does not bind the Immigration Service. Ex parte Ghosh, D.C.S.D.Cal.1944, 58 F. Supp. 851.

But I do not think this concludes the matter. For even as to an alien in the United States on a student’s visa, there may be other circumstances showing á purpose to reside here. The Immigration Service should have the opportunity of determining whether such circumstances exist here. To that end I would reverse and remand to the District Court with directions to refer the case back to the appellee for further administrative proceedings.