Petition for naturalization of Vilis Martins Lapenieks is opposed by the Immigration and Naturalization Service on the grounds petitioner is ineligible for citizenship by reason of having applied for and received exemption from military service, Section 315(a) of the Immigration and Nationality Act [ 8 U.S.C. § 1426 (a)].

Petitioner was born in Latvia on November 10, 1931, and entered the United States for permanent residence in January, 1952. During the summer of 1952 he was registered for Selective Service and in October of that year was classified I-A by Board No. 47, Miami, Florida. He made written application for exemption on grounds of alienage on November 15,1952 (Pet.’s Ex. B) and was re-classified IV-C on November 20, 1952 (Pet.’s Ex. C). In June, 1953, petitioner was advised that if he continued to claim exemption he would be ineligible for citizenship (Pet.’s Ex. D and Govt.’s Ex. 1). Petitioner informed his Board he desired to continue ineligible.

In April or May, 1957, petitioner's draft Board informed him that Local Board Memorandum No. 39 (Pet.’s Ex. A), under which his exemption had been granted, was rescinded on March 1, 1956, and that he was again classified I-A (Pet.’s Ex. E). After a pre-induction physical examination on August 20, 1957, (Govt.’s Ex. 2), petitioner was, on about October 10, 1957, advised by his draft Board that he was classified IV-F.

By his claim to exemption and exemption pursuant thereto, petitioner avoided service in the Korean conflict which spanned the period between June 25,1950 and July 1, 1955. In re Naturalization of Bergin, D.C., 173 F.Supp. 883 at 885 .

The Naturalization Service has denied' the petition for naturalization, filed September 6, 1963, based on the provisions of Section 315 (a) of the Immigration and Nationality Act of 1952 [ 8 U.S.C. § 1426 (a)].

The decisions are not uniform in their interpretation of the statutes here involved. The court, in In re Naturalization of Cuozzo, 235 F.2d 184 (CA 3, 1956), reversed the decision of the trial court granting petition for naturalization, stating at page 185:

In the Cuozzo case, an alien had claimed exemption in December, 1950. Thereafter the law was amended to withdraw a permanent resident alien’s right to such exemption from military service. He then was classified I-A but found to be not physically acceptable.

The District Court of Minnesota, in Petition of Bergman, 173 F.Supp. 880 (1959), held that the petitioner, an alien, who claimed exemption from military service, was permanently ineligible for citizenship, and his subsequent request for induction did not remove the bar.. At page 883 the court quotes from Gilligan v. Barton, 265 F.2d 904 (CA 8, 1959), as follows:

Bergman claimed exemption from military service as an alien in April, 1942. In 1943, he contacted his draft Board and requested he be inducted into the service. In February, 1944, he was found physically unfit and classified IV-F.

In In the Matter of Cerati, 160 F.Supp. 531 (D.C.N.D.Cal.1957), the District Court in California held Cerati barred from citizenship although he subsequently served in the Armed Forces. He claimed exemption from military service in 1954. In January, 1956, petitioner filed with his local Board request for voluntary induction claiming he misunderstood his application for exemption. He was thereafter inducted into the United States Navy. In referring to Section 315(a) of the Act, the court states, at page 532 of its opinion:

Petitioner, in the instant matter, relies in chief on three cases, to wit: United States v. Lacher, 299 F.2d 919 (CA 9, 1962); United States v. Hoellger, 273 F.2d 760 (CA 2, 1959); and Cannon v. United States, 288 F.2d 269 (CA 2, Dec. 1960).

In United States v. Lacher, supra, the petitioner, a German alien, applied for exemption under the provisions of a treaty with Germany and was classified IV-C in March of 1954. In October, 1954, following abrogation of the treaty, Lacher was re-classified I-A and inducted into the Army on May 28, 1956. In June of 1960 Lacher filed a petition for naturalization under Title 8 U.S.C. § 1427 . The District Court granted citizenship over the objection of the Examiner. The District Court and the Court of Appeals, as authority for their respective decisions, relied on In re Rego’s Petition, 289 F.2d 174 (CA 3, 1961); Cannon v. United States, supra, and United States v. Hoellger, supra. In all of those cases, the petitioner, after claiming exemption from military service by reason of being an alien, served in the Armed Forces.

By reason of the decision of the Court of Appeals, 9th Circuit, in the Lacher case, supra, this court would be bound to grant the pending petition if the facts in the instant matter are not to be distinguished from those in the Lacher case.

In the Lacher case, as noted above, the petitioner applied for the exemption in 1954, after the effective date of Section 315(a), to wit, December 24,1952, whereas in the case at bar the application for and the exemption were both accomplished prior to the effective date of Section 315(a). It is to be noted that the petitioner was fully advised in October, 1952, that his exemption from military service by reason of his being an alien would act as a permanent bar to his becoming a citizen of the United States (Govt.’s Ex. 4, pages 5 and 6). It is also to be noted that in the pending matter the petitioner was re-classified I-A and found to be physically unfit for service in 1957, some 5 years after his exemption. These points will be commented on in more detail infra.

Since our Court of Appeals relied on Rego, Cannon and Hoellger cases, supra, the facts and circumstances in those cases will be discussed. In all of those cases the alien actually served in the Armed Forces of the United States.

The petitioner in Rego, supra, 289 F.2d 174 , was exempted on his application therefor and re-classified IV-C in 1951. This was an erroneous classification because the petitioner had been lawfully admitted to the United States for permanent residence in 1947, and the Universal Military Training and Service *401 Act (1948), 50 U.S.C., Appdx. 454(a), 456(a), effective in 1951, provided:

At pages 176-177 of its opinion, the court ruled that since only aliens not in permanent residence were privileged to be relieved from military service, that petitioner’s exemption was in error because he was in the same Selective Service category as a citizen. The court notes at page 176 that Section 4(a) of the 1948 Act (Section 454(a), 50 U.S.C. Appdx.), supra,

With respect to Eego’s ineligibility under Section 454(a), carrying over as a bar to naturalization after the 1952 Act (Section 315(a)), the court, again at page 176, refers to Hoellger, supra, observing:

The case of United States v. Hoellger, 273 F.2d 760 (CA 3, 1960), involved a petition for naturalization by a German alien who entered the country on December 3, 1951. He soon registered for military service pursuant to 50 U.S.C. Appdx. Section 453. In the summer of 1952 he was classified I-A. On September 11, 1952, his Board, on its own initiative, re-classified petitioner IV-C (alien exempt by treaty). In May, 1953, after the 1952 Act (Section 315(a)) became effective, the Board, again on its own initiative, sent Appellee Hoellger a form application for exemption as an alien although it was questionable that the Board had power to exempt the petitioner who was a permanent resident in December, 1951 (273 F.2d page 761, footnote 1). Hoellger completed the form and returned it to the Board and was classified IV-C until February, 1955, when he was re-classified I-A by reason of the abrogation of the treaty with Germany. It appears that Hoellger, by his own application, was exempt from May, 1953, to February, 1955. He was inducted into the Armed Forces in April, 1955, served his full term and was honorably discharged in April, 1957 (page 762). In August, 1957, he applied for citizenship. The parties in the Hoellger case agreed that his eligibility for citizenship was to be determined by Section 315(a). In holding the petitioner eligible for citizenship and that there had to exist both application for exemption and effective relief from service, the court states at page 762:

In distinguishing the cases cited by the Government as noted in footnote 2, page 762, the court observes that in three of the four cases cited the applicant did not enter the Armed Forces. The court also observes (footnote 2) that in the Cerati case, supra, 160 F.Supp. 531 (D.C.N.D.Cal.1957),

In the case at bar, the petitioner was not inducted because of physical unfitness. Again referring to footnote 2, 273 F.2d page 763, of the Hoellger case, the court states:

Although, in the Hoellger case, the parties agreed that eligibility for citizenship was to be determined under Section 315(a), in footnote 3, page 763, the court discusses the question of the effect of Section 315(a) of the Act on an alien who applied for exemption prior to December 24, 1952, the effective date of the Act. Section 405(a) and 405(b) of the June, 1952, Act (footnote 8, U.S.C. § 1101 ) are discussed at some length in footnote 3 and Section 405(a) is there set forth in full. These sections are referred to by the court as “savings clauses.” The court thereafter (footnote 3) says:

Section 405(a) [Title 8, U.S.C. 1101 footnote] of the Act of June 27, 1952, provided, in part, that the 1952 Act should not affect, among other things, “ * * * any status, condition, * * * act, * * * obligation or matter, civil or criminal, done or existing at the time this Act shall take effect; * * The Section further provides that all such acts, conditions, status, and so forth, under the statute repealed by the 1952 Act are “ * * * hereby continued in force and effect.”

The Court of Appeals, 2nd Circuit, in Cannon v. United States, supra, 288 F.2d 269 , points out the similarity of the facts in that case to those in the Hoellger case (273 F.2d page 271). It is to be noted that in both cases there was no written request signed by either alien involved until May, 1953, after the effective date of Section 315(a) on December 24, 1952. In the Hoellger case, the petitioner was exempted on the Board’s own initiative and in the Cannon case the exemption was on the application of the Irish Ambassador (288 F.2d page 271 and footnote 1, said page). So it appears that in both of those cases there was no application by the alien for exemption until after December 24, 1952, whereas in the instant matter the application for exemption (Pet.’s Ex. B) was signed by the petitioner before December 24, 1952. See also Govt.’s Ex. 4, page 5.

*403 In the Cannon case the alien, a citizen of Ireland, entered the United States for permanent residence in February, 1952. On the request of his Ambassador that he be exempt from Service as an alien, he was classified IV-C on September 11, 1952. In May, 1953, Cannon himself made written application for continuation of the exemption. On November 8, 1954, he asked that his exemption be withdrawn and in November, 1956, he was drafted and served his full two years. At page 270 of the opinion, the court refers to a portion of its opinion in the Hoellger case re the effect of application for exemption prior to the 1952 Act (Section 315(a)), as follows:

This court, for the reasons noted above, concludes that the case at bar is to be distinguished from the Lacher, Rego, Hoellger and Cannon cases, supra.

Petitioner herein also relies on In re Kadich, 221 F.Supp. 353 , S.D.N.Y. (1963). Kadich’s application for exemption was granted although he was not an alien qualified for exemption. Exemption was later withdrawn by reason of that fact and petitioner was called for duty but rejected as physically unfit. The court held he was not debarred from citizenship where the exemption was withdrawn because petitioner was not qualified for the exemption in the first instance.

Each case must be decided, to some extent at least, on the particular facts involved. It would appear, since the petitioner herein applied for the exemption which was granted to him prior to the effective date of Section 315(a), that his application for exemption was sufficient to bar him from citizenship though he had actually served in the Armed Forces after 315(a) became effective on December 24,1952.

In In re Harispe, D.C., 200 F.Supp. 627 , Harispe, a citizen of the Argentine Republic, applied for exemption in November, 1942, and was re-classified IV-C. He was never inducted into the military service. In 1959 he applied for naturalization. Petitioner’s counsel argued that the 1952 Act (Section 315(a)) operated retrospectively. In holding that the Act is not retrospective in nature, the court, at page 632 of its opinion, said:

Although Section 315(a) may be said to be determinative of the question, it is reasonable to conclude that Congress may well have been of the opinion that an *404 alien who refuses service in the Armed Forces of this country by applying for exemption on that ground does not have the qualities desired of a citizen although the exemption for alienage was subsequently abandoned or the provision for the exemption abrogated. The provision in Section 315(a) that the applicant who makes application for exemption on the ground that he is an alien, if relieved from military service on that ground, “ * * * shall be permanently ineligible to become a citizen of the United States” does not impose the interpretation that a remanding of the exemption rule is tantamount to elimination of the “permanent ineligibility.” Section 315(a) does not provide that the applicant must be permanently relieved from such service. The petitioner here was certainly “effectively” relieved from military service, where he was allowed to carry the exempt classification from November, 1952, to April, 1957, during a substantial portion of which period he avoided the prolonged conflict in the undeclared Korean War. The nature of the duty of the members of our Armed Forces during the Korean Campaign is a matter of common knowledge. This court concludes the relief from military service during the period covered herein was effective relief from service within the meaning of Section 315(a), or under any other standard. It does not appear to this court that it is for it to say what action Congress should have taken, if any, by way of renewing eligibility for citizenship on the remanding of the alien exemption provisions referred to in Section 315(a) [8 U.S.C. 1426(a)], Congress could have easily made provision for aliens who had claimed exemption to become again eligible for citizenship on the remand of the exemption rights, but it did not do so.

As stated by the District Court in In re Rego, 185 F.Supp. 16 , D.C.N.J. (1960), reversed on other grounds, 3 Cir., 289 F.2d 174 , supra:

The McCarran Act referred to is the Immigration and Nationality Act of 1952.

The petitioner in In re De Campos, 163 F.Supp. 173 , D.C.N.J. (1958), registered for military service on October 16, 1940. Pursuant to his written application therefor he was exempted and classified IV-C in March, 1942. Hearing on his application for petition for naturalization was held in July, 1956. On August •24, 1944, De Campos was re-classified I-A and on November 8, 1944, as IV-F, not physically fit for service. After he was classified IV-F De Campos, by letter of November 14, 1944, advised the Naturalization Service he had reconsidered and requested the return of his declaration re exemption. The court, at page 175, states:

At page 174 of the opinion, the court quotes Section 315(a) of the 1952 Act and thereafter observes:

*405 It is to be noted that in the case at bar the petitioner was classified IV-F in October, 1957, and his petition for naturalization was filed September 6, 1963.

The court concludes that the petitioner herein, for the reasons stated above, is not entitled to citizenship and his petition for naturalization is hereby ordered denied.