Opinion
June 10, 1957.
Edward Kroin, New York City, for petitioner.
William J. Kenville, U.S. Naturalization Examiner, Immigration and Naturalization Service, Dept. of Justice, New York City.
The petitioner, a citizen of Eire, was admitted to this country on June 9, 1951. On June 2, 1952 he appeared at his Draft Board and registered for selective service. As part of his registration he indicated to the Board that "I have filed a Declaration of Intention to become a citizen of the United States. I filed my Declaration of Intention at New York * * *" Without any request on his part therefor, and on July 10, 1952, the Draft Board classified him 4C.
Subsequently, and on May 15, 1953, his Draft Board wrote him as follows:
"The Board classified you in 4C upon evidence showing that you were a citizen of a country with whom the United States has a Treaty.
It now becomes necessary for you to request this exemption in writing. Therefore the enclosed form must be completed and signed by you, also witnessed and returned to us as promptly as possible."
In compliance with the mandate of the letter of May 15, 1953, petitioner filed with the Board on May 20, 1953 a statement duly witnessed, containing, among other things, the following:
"I request exemption from military service under the provisions of Section 1622.42(c) of the Selective Service Regulations, on the ground that I am an alien claiming exemption under a treaty. I have read the provisions of Section 315 of the Immigration Nationality Act, given below, and I fully understand the meaning thereof."
Section 315 of the Immigration and Nationality Act was clearly contained on said statement filed May 20, 1953.
Not having heard from the Board during the interim, petitioner voluntarily presented himself at the Board on January 5, 1954, to inquire why he had not been called for military service and was advised that because of his execution of the statement which was filed on May 20, 1953 he had been relieved of military duty. He thereupon filed with the Board a statement in his own handwriting as follows:
"I Edward Owen Sally wish to withdraw my 4C classification as a treaty alien in order that I may become a citizen of the U.S. and made available for service."
On January 6, 1954 he was classified 1A and on January 7, 1954 ordered to report for induction on February 5, 1954. He reported as required, was given a physical examination and found to be unacceptable for military service. Whereupon, on February 17, 1954, he was classified 4F.
The Government now opposes his petition for citizenship upon the ground that under Section 315(a) of the Immigration and Nationality Act the petitioner may not be naturalized.
On the facts adduced at the hearing herein, I find that the petitioner did not knowingly and intentionally waive his rights to citizenship. I fully believe the petitioner's testimony that the language of the Board's letter of May 15, 1953 was construed by him as a direction to comply with the instructions in that letter. His original classification in 4C, which is the basis of the government's objection herein, was gratuitously undertaken by the Board without his request.
Moser v. United States, 1951, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729.
Furthermore, in the light of these facts, he was not "relieved or discharged from such [military] training or service" on the ground of any application by him for exemption or discharge. In fact, after he complied with the Board's direction to file the completed form on May 20, 1953, the only action which the Board took was on January 6, 1954, to classify him 1A at his request. Accordingly, the petition for naturalization of Edward Owen Sally, petitioner herein, is granted.
Section 315(a), Immigration and Nationality Act, 8 U.S.C.A. § 1426(a).
It is so ordered.