Vilis Martins Lapenieks v. Immigration and Naturalization Service, Department of Justice, Etc.

389 F.2d 343 Vilis Martins LAPENIEKS, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Department of Justice, etc., Appellee. No. 21199. United States Court of Appeals Ninth Circuit. January 11, 1968. 1 Edgar F. Gross (argued), of Gross & Eisenstein and Richard B. Cutler, Los Angeles, Cal., for appellant. 2 James R. Dooley, Asst. U. S. Atty., (argued), William H. Karp, General Atty., William M. Bryne, Jr., U. S. Atty., Los Angeles, Cal., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief of Civil Division, Los Angeles, Cal., Joseph Sureck, Regional Counsel, San Pedro, Cal., for appellee. 3 Before CHAMBERS and DUNIWAY, Circuit Judges, and BEEKS, District Judge. 4 BEEKS, District Judge. 5 This appeal is from an order of the District Court denying a petition for naturalization filed pursuant to 8 U.S.C. § 1427 . The trial court denied the petition on the ground that in 1952 the appellant had availed himself of an exemption from military service, as a Latvian national residing in the United States, where one of the conditions of claiming said exemption was permanent ineligibility for citizenship. In 1956, a change in Selective Service regulations eliminated the…

This appeal is from an order of the District Court denying a petition for naturalization filed pursuant to 8 U.S.C. § 1427 . The trial court denied the petition on the ground that in 1952 the appellant had availed himself of an exemption from military service, as a Latvian national residing in the United States, where one of the conditions of claiming said exemption was permanent ineligibility for citizenship. In 1956, a change in Selective Service regulations eliminated the exemption, and appellant was reclassified I-A. He never served in the military, however, because he did not pass the physical examination administered in 1957. The question thus presented is whether the permanent bar to citizenship which appellant voluntarily accepted by claiming the exemption in 1952 was lifted when the exemption was terminated in 1957. The trial court held that the bar was not lifted, and we affirm.

Appellant immigrated into the United States from Latvia in 1952, at the height *344 of the Korean conflict. At that time, appellant was entitled, upon application, under the Selective Service Regulations then in effect (16 Fed.Reg. 9852) (revoked Feb. 17, 1956) and under a treaty with Latvia, to…

(dissenting) :

I dissent.

In my opinion, petitioner was not effectively “relieved * * * from such [military] training or service on such ground,” i. e., “on the ground that he is an alien.” (Section 315(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1426 (a)). I think that the rationale of our decision in United States v. Lacher, 1962, 299 F.2d 919 , leads to this result. In that case, we expressly relied on the decisions in In re Rego’s Petition, 3 Cir., 1961, 289 F.2d 174 , Cannon v. United States, 2 Cir., 1961, 288 F.2d 269 , and United States v. Hoellger, 2 Cir., 1960, 273 F.2d 760 .

In Hoellger, the alien applied for and obtained a IV-C classification (alien exemption). He was first so classified on the board’s initiative, on September 11, 1952. He applied for a continuance of that classification in May, 1953. He continued to be classified IV-C until February 9, 1955, when he was reclassified I-A. He was inducted on April 6, 1957. In Rego, the alien applied for IV-C classification on June 29, 1951 and was so classified on October 16, 1951. *347 Like Hoellger, he later asked to be continued in that classification, and this was done. He was reclassified I-A on…