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IN RE BERGIN

June 10, 1959

In re Petition for Naturalization of James Joseph BERGIN


The opinion of the court was delivered by: WORTENDYKE

On October 24, 1957, James Joseph Bergin (petitioner), an alien resident in this District, filed his petition for naturalization from which it appears that he was lawfully admitted for permanent residence in the United States at Buffalo, New York, on September 21, 1950. Petitioner is a native and citizen of Eire.

In or about February 1951, petitioner applied to the Irish Consulate in New York City for the purpose of availing himself of the provisions of a treaty between Eire and the United States of America permitting his exemption from compulsory service in the Armed Forces of the United States. In due course the Ambassador of Ireland to the United States requested of the Secretary of State of the United States to take appropriate action, in accordance with the Treaty of Friendship, Commerce and Navigation between the two sovereignties, to secure the exemption sought by the petitioner. The request was granted and the exemption allowed.

 On May 22, 1951, petitioner had written to his Local Board as follows:

 'I wish to notify you within the 10 day limit ending on May 25 and request a hearing before the Local Draft Board for the purpose of Claiming Exemption from induction into the armed forces.'

 Acting pursuant to authorization from the Director of Selective Service, Local Board No. 19 for New Jersey requested petitioner to complete Form SSS-52-111. Under date of January 13, 1953, petitioner complied by executing, under oath, upon said form a request that he, as a citizen of the Republic of Ireland, be classified in IV-C. Immediately above the petitioner's written expression of this request are set forth upon the form the provisions of Section 315(a) and (b) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1426, reading as follows:

 '(a) Notwithstanding the provisions of section 405(b), any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States.

 '(b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved or discharged from such liability for training or service because he was an alien.'

 Pursuant to his application, he was accordingly classified IV-C.

 Section 101(a)(19) of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1101 (a)(19) provides:

 'The term 'ineligible to citizenship,' when used in reference to any individual, means, notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States under section 3(a) of the Selective Service Act of 1940, as amended (50 U.S.C.A.Appendix, § 454(a) (62 Stat. 605; 65 Stat. 76)), or under any section of this Act, or any other Act, or under any law amendatory of, supplementary to, or in substitution for, any of such sections or Acts.'

 Local Board Memorandum No. 39, issued by the National Headquarters of the Selective Service System on November 6, 1951, was amended on April 24, 1953, by Memorandum designated LBM No. 116. Section I of this latter memorandum recommended that 'Local Boards review all cases of general registrants who have been classified in IV-C, who are citizens of a treaty nation, and who have been classified based on presentation of information concerning such citizenship.' With LBM No. 116 was enclosed a form of statement to be used by Local Boards 'for those registrants whose cases with be reviewed and also any registrants who, in the future, request relief or exemption because of their citizenship.' The same memorandum directed that upon the enclosed suggested form the registrants whose cases would be reviewed should sign part 'A' of the statement, while those registrants who did not request classification in IV-C by reason of their status should complete part 'B'. The form referred to is the same as that which petitioner had previously completed.

 On April 9, 1956, petitioner was reclassified in V-A by his Local Board.

 Herman Kaner, Esq., the Designated Naturalization Examiner who took the petitioner's sworn testimony, has recommended, under date of January 9, 1959, pursuant to 8 U.S.C.A. § 1446(d), that the petition for naturalization be denied upon the ground that under section 315 of the Immigration and Nationality Act (8 U.S.C.A. § 1426), petitioner is permanently ineligible to become a citizen of the United States. The matter was thereupon referred to W. G. Folts, Esq., the Acting Regional Commissioner, Northeast Region, who concluded that the petitioner was not barred from becoming a citizen and ...


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