Opinion
No. 148.
January 4, 1945.
Appeal from the District Court of the United States for the Eastern District of New York.
Habeas corpus proceeding by the United States of America, on the relation of Ignacio Aberasturi, against Colonel David E. Cain, Commanding Officer, United States Army, Camp Upton, New York, or whoever may have the custody of the body of Ignacio Aberasturi. From an order, 55 F. Supp. 536, dismissing the petition and quashing writ of habeas corpus, the relator appeals.
Reversed.
Relator was born in Spain on July 24, 1924 of Spanish parents. Unaccompanied by relator, relator's father came to this country where he has since resided; the father became a naturalized citizen in January 1935. On October 22, 1936, relator arrived in this country, when he was a little more than twelve years of age. He has since resided in the United States but he has taken no steps to become naturalized nor does the record show that any steps in that direction ever have been taken on his behalf by his parents or anyone else. His mother has not been naturalized. On December 16, 1942, he registered with his Local Draft Board pursuant to the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq. In his questionnaire, filed with that Board on February 10, 1943, he stated under oath in answer to a question, "I am a citizen of the United States with my father's citizenship." On that same day, the Board classified him in Class I-A and on March 13, 1943 sent him a notice to report for induction in the United States Army on April 10, 1943. On March 27, 1943, he filed a written statement (in the prescribed form) with the Board asserting that he was a subject of Spain, neutral in the present war, and, as such, asking to be relieved from liability for training and service under the Selective Training and Service Act. The Board cancelled his induction. But subsequently Selective Service Headquarters decided that relator was a citizen of the United States and as such was subject to the Selective Training and Service Act. The Local Board on January 28, 1944, sent relator a notice to appear for a pre-induction physical examination on February 9, 1944. On February 2, 1944, relator sent the Local Board a letter to the effect that he was a subject of Spain and hence not subject to the Selective Service Regulations. On February 16, 1944 relator, his mother and attorney appeared at the Local Board and stated that he was a Spanish national and as such, not subject to military training. Relator apologized for not appearing for his pre-induction physical examination on February 9, 1944, as ordered by his Local Board, and agreed to submit to one. The relator after such examination was found physically fit and acceptable to the Army authorities.
Relator concedes that his entire file was considered by the Local Board in arriving at the I-A classification and that he never requested an appeal from the Local Board's classification. Relator was inducted into the United States Army on March 16, 1944. He then filed a petition in the court below for a writ of habeas corpus, challenging the legality of his classification by the draft board and his induction into the Army.
Section 3(a) of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 303(a), reads: "* * * every male citizen of the United States, and every other male person residing in the United States, who is between the ages of eighteen and forty-five at the time fixed for his registration, shall be liable for training and service in the land or naval forces of the United States. Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States * * *." The regulation in effect at the time when relator signed the prescribed form claiming neutral status was Selective Service Regulation No. 622.43. That regulation so far as applicable to relator's status provided as follows: "(a) In Class IV-C shall be placed any registrant: * * * (2) Who is an alien and who is a citizen or subject of a neutral country * * * and who, at any time prior to (a) his induction into the land or naval forces of the United States, * * * files with his local board an Application by Alien for Relief from Military Service (Form 301) executed in duplicate * * *."
Section 2 of the Nationality Act of 1934, 48 Stat. 797, 8 U.S.C.A. § 8, provides: "* * * That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the father or the mother: Provided, That such naturalization or resumption shall take place during the minority of such child: And provided further, That the citizenship of such minor child shall begin five years after the time such minor child begins to reside permanently in the United States."
Section 313 of the Nationality Act of 1940, 8 U.S.C.A. § 713, provides: "A child born outside of the United States, one of whose parents at the time of the child's birth was an alien and the other of whose parents then was and never thereafter ceased to be a citizen of the United States, shall, if such alien parent is naturalized, be deemed a citizen of the United States, when — (a) Such naturalization takes place while such child is under the age of eighteen years; and (b) Such child is residing in the United States at the time of naturalization or thereafter and begins to reside permanently in the United States while under the age of eighteen years."
Section 314 of the Nationality Act of 1940, 8 U.S.C.A., § 714, provides: "A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions: (a) The naturalization of both parents; or (b) The naturalization of the surviving parent if one of the parents is deceased; or (c) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents; and if — (d) Such naturalization takes place while such child is under the age of eighteen years; and (e) Such child is residing in the United States at the time of the naturalization of the parent last naturalized under subsection (a) of this section, or the parent naturalized under subsection (b) or (c) of this section, or thereafter begins to reside permanently in the United States while under the age of eighteen years."
Section 601 of this Act, 8 U.S.C.A. § 906, provides that the Act should become effective January 13, 1941. Section 504, 54 Stat. 1172, 8 U.S.C.A. § 904, provides: "The following Acts or parts of Acts are hereby repealed," and specifically enumerates, inter alia, Section 2 of the Nationality Act of 1934. Section 347(a) of the 1940 Nationality Act, 8 U.S.C.A. § 747(a), the so-called "saving clause," provides that nothing contained therein "unless otherwise provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization or of citizenship, or other document or proceeding which shall be valid at the time this chapter shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, or matter, civil or criminal, done or existing, at the time this chapter shall take effect; but as to all such prosecutions, suits, actions, proceedings, acts, things, or matters, the statutes or parts of statutes repealed by this chapter, are hereby continued in force and effect."
Official interpretation No. 9 of the Department of Justice, Immigration and Naturalization Service, dated March 26, 1942, reads: "The following interpretations and rulings have been made by the Central Office in connection with cases arising under the Nationality Act of 1940. Interpretations of particular sections have been arranged in the chronological order in which they appear in the act * * *. 29. Section 347 (Saving Clauses): a. A child who did not acquire citizenship through the naturalization of a parent under the Act of May 24, 1934, prior to January 13, 1941, solely because he had not resided in the United States for a period of five years as required by that Act, may acquire citizenship thereunder even on or after January 13, 1941, by completing such five years' residence."
After a hearing on the writ and respondent's return, the court below on May 10, 1944 entered an order dismissing relator's petition and quashing the writ, stating in its opinion that relator on March 27, 1943, was a citizen of the United States. From that order of May 10, 1944 respondent appeals.
Louis J. Opal, of New York City, for relator-appellant.
T. Vincent Quinn, of Brooklyn, N.Y. (Vine H. Smith and Anthony G. Greco, both of Brooklyn, N.Y., of counsel), for respondent-appellee.
Before CHASE, CLARK, and FRANK, Circuit Judges.
In asserting that relator, on March 27, 1943 was a citizen of the United States, respondent is compelled to take the following position: (1) Respondent admits that, under the Nationality Act of 1940, 8 U.S.C.A. § 501 et seq., which became effective January 13, 1941, a minor child of alien parents, only one of whom was naturalized during the child's minority, does not become a citizen of the United States by mere length of residence of the child in this country. (2) Nevertheless, says respondent, such a minor, if he began to reside here on January 12, 1941, one day before the 1940 Act went into effect, and if, without more, he continued his residence here for five years — until January 12, 1946 — will become a citizen on that date; for, respondent contends, the one day of residence before January 13, 1941, creates an "inchoate citizenship" which, under the Nationality Act of 1934, would have ripened into citizenship after five years of continued residence, and such "inchoate citizenship" with such attendant consequences was preserved by the "saving clause" of the 1940 Act.
We do not agree. That "saving clause" preserves merely the "validity" of a "declaration of intention, petition for naturalization, certificate of naturalization of citizenship, or other document which shall be valid" on the effective day of the Act, January 13, 1941, or any "prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, or matter, civil or criminal, done or existing" on that day. We think that this provision does not cover a mere condition, unattended by any affirmative action by the alien or by anyone else. In other words, we do not think that Congress in the 1940 Act intended that the mere fact of residence before January 13, 1941, should operate to continue, for a maximum period of four years and three hundred and sixty-four days thereafter, the precise privilege [and obligation] which would have existed under § 2 of the 1934 Act if the 1940 Act had not been enacted. (We do not need to, and do not here, consider a case where an alien child or someone on his behalf had, before January 13, 1941, taken some affirmative action on the child's behalf.)
Since relator had not completed five years of residence in this country before January 13, 1941, he was not a citizen on March 27, 1943 when, pursuant to the Selective Training and Service Act, he filed a statement of his election as a neutral alien to be exempt from "liability for training and service" under that Act. Neither his previous registration under that statute nor his previous statement in his questionnaire, "I am a citizen of the United States" constituted a waiver of that statutory right of election; for one who erroneously thought himself a citizen of the United States cannot be regarded as intending to waive a right belonging solely to a neutral alien. And relator's mistaken assertion of American citizenship could not create that status.
As the adult members of the Selective Service Headquarters disagreed with the adult members of the Local Draft Board as to whether relator was a citizen of this country, it is not surprising that relator, still a minor when he filed his questionnaire, made such a mistake.
The issue here being the correct interpretation of the statutes, United States ex rel. Brandon v. Downer, 2 Cir., 139 F.2d 761, and United States ex rel. Trainin v. Cain, 2 Cir., 144 F.2d 944, are not in point. We are not bound by the interpretation of the Naturalization Law given by the Department of Justice.
It follows from what we have said that relator was unlawfully inducted and should be released.
Reversed.
The opinion does not make clear whether the saving clause of the Nationality Act of 1940, 8 U.S.C.A. § 747(a), operates only one way to serve as a privilege for the alien. The broad and all-inclusive nature of the language used would seem to indicate an intention to preserve the rights and privileges of the alien in cases such as the very one visualized in the opinion. Had a recently naturalized parent striven to get his child out of Europe and only succeeded even a day before the new Act took effect, I think we would all recognize the harshness of a ruling depriving the alien child of any rights he otherwise would have had and accept the departmental interpretation that this was the purpose of the Act. Surely the use of such words, in addition to "prosecution, suit, action, or proceedings," as "act, thing, or matter" goes about as far as language can to disclose such an inclusive intent. And the addition of "thing, or matter" to "act" shows that it does cover what is referred to as a mere condition, unattended by any affirmative action by the alien, which, it may be thought, is hardly a complete characterization of the act of coming to this country for at least indefinite, and seemingly permanent, residence.
The more serious question, it seems to me, is whether the alien alone can rely upon the clause. What that would mean is that the alien would have the opportunity to disaffirm citizenship when he thought it burdensome. Conceivably Congress might intend such an option, although the anomalies resulting are obvious. They are indicated in this very case where the relator showed every outward semblance of relying on the provision, even asserting his citizenship to the draft board, until the very time when he was to be inducted. But the clause is worded to apply generally, not to offer a unilateral privilege; and I think we should not favor an interpretation leaving the high obligation, as well as right, of citizenship to a determination at once so indefinite and so subject to individual caprice or desire. In addition to the views of the Naturalization Service and the court below, the cases of Petition of Otness, D.C. N.D.Cal., 49 F. Supp. 220, and In re Shaver, 7 Cir., 140 F.2d 180, favor a broad interpretation of the statute; nothing hitherto has suggested a narrow one. I would affirm.