In re Gustavson
In re GUSTAVSON
- Proceeding
- district
- Area
- other
- Panel
- James (author)
Analysis
The court reviewed a petition for naturalization where the applicant had claimed exemption from military service based on alienage but subsequently served in the U.S. Army and was honorably discharged. The court denied the petition due to the district's rule regarding loyalty but ordered that the applicant not be permanently debarred from future applications under the Act of July 9, 1918, because he was not actually relieved from service.
| What the court decided | The model |
|---|---|
Petition for naturalization denied“Under the rule adverted to, necessarily the application should be denied.” | agree with court The court applied a local district rule that claiming exemption from military service on the ground of alienage during the recent war is sufficient to show a lack of loyalty, presuming such lack continued throughout the war. The applicant's claim for exemption triggered this rule, leading to the denial of the current petition. |
Applicant not permanently debarred from future naturalization applications“The denial of his application should therefore be only because of his claim for exemption under the draft, and the record should not show that he incurred the penalty provided for under the Act of July 9, 1918; and it is so ordered.” | agree with court The court interpreted the Act of July 9, 1918, to impose a permanent debarment penalty only when an alien is actually relieved from military service liability by withdrawing their declaration of intention. Since the applicant actually served and was not relieved from service, the condition for the penalty was not met, and he remains eligible to reapply in the future. |
The order itself: sound — The court correctly distinguished between the local rule regarding loyalty (which denied the current petition) and the statutory penalty for permanent debarment (which required actual relief from service). The reasoning that the statutory penalty applies only when the exemption is actually granted is a logical interpretation of the statute's text and purpose.
Opinion — James
JAMES, District Judge.
The petition for naturalization of the applicant showed him to have served in the army of the United States during the recent war and to have been honorably discharged therefrom. It was also shown that petitioner claimed exemption on the ground of alienage when he made answer to the draft questionnaire. He had previously filed a declaration to become a citizen of the United States. Prior to his service in the army he also made request for leave to, and did, surrender such declaration. Under the established rule of the District Court in this district, the fact being made to appear that exemption was claimed from military service during the recent war by an applicant on the ground of alienage is sufficient to show a lack of loyalty, which will be presumed to have continued during the entire period of the war, and to require in such case that the application be denied; this rule applying to all such cases, except where a declaration of intention was filed subsequent to the date of the Armistice (November 11, 1918), and a full period of five years has elapsed subsequent to filing such declaration and before the filing of the petition *252for naturalization. Under the rule adverted to, necessarily the application should be denied.
The examiner, however, suggests that petitioner’s case is one which, by reason of his having surrendered his declaration of intention, should be recorded as forever preventing a reapplication to be made; this because of the provisions of the Act of July 9, 1918, which reads as follows:
“Provided, that a citizen or subject of a country neutral in the present war who has declared his intention to become a citizen of the United States shall be relieved from liability to military service upon his making a declaration, in accordance with such regulations as the President may prescribe, withdrawing his intention to become a citizen of the United States, which shall operate and be held to cancel his declaration of intention to become an American citizen, and he shall forever be debarred from becoming a citizen of the United States.” 40 Stat. pt. 1, p. 885 (Comp. St. Ann. Supp. 1919, § 2044b).
The intention of that act plainly was to fix a penalty where, an alien declarant was relieved from military service; that is, if he withdrew his declaration of intention, so as to make effectual his claim for exemption from service, he should then “forever be debarred” from becoming a citizen of the United States.
In this case the government did not relieve the declarant from service, and he actually did serve and received an honorable discharge; hence no exemption right was accorded to him, and he should not be held to have incurred the penalty affixed. The denial of his application should therefore be only because of his claim for exemption under the draft, and the record should not show that he incurred the penalty provided for under the Act of July 9, 1918; and it is so ordered.