Giz v. Brownell

DANAHER, Circuit Judge, with whom Circuit Judge BASTIAN

concurs.

We concur in Judge BAZELON’S opinion as to No. 12873 — Gurcay v. Brownell and No. 13043 — Moran v. Brownell. We agree with Judge Bazelon’s disposition of the claim by Giz that he sought “draft exemption under mistake.” As to the other aspects of the question presented in No. 12839 — Giz v. Brownell, we prefer to state our position as will be developed.

Giz, a citizen of Turkey, entered the United States on September 9, 1939, as a student. After studying English in Massachusetts, he entered the University of California as a pre-dental student. In 1940 he registered with the local draft board at Berkeley, California. He was graduated from the University in October 1944 with a degree in dentistry and thereafter took a postgraduate course in dental surgery. His visa expired in July 1945, after he had completed his studies and had concluded his professional examination. He did not seek an extension of his visa nor did he depart from the United States. Instead, he moved to San Diego, California, and opened an office for the practice of dentistry. In 1947 deportation proceedings were instituted because Giz had overstayed his visa. After several hearings, and a determination that Giz should be excluded from admission to the United States, he appealed to the Board of Immigration Appeals. The Board held that Giz was statutorily ineligible for citizenship and, accordingly, ineligible for suspension of deportation. Although he was granted voluntary departure, he filed an action for declaratory relief claiming, notably, that he had not been “residing in” the United States within the meaning of § 3(a) of the Se*29lective Training and Service Act of 1940.1 After trial and oral argument, Judge McGuire entered findings of fact and conclusions of law and ordered judgment for the defendant. Thereupon, Giz appealed.

The Selective Training and Service Act of 1940 by § 3(a) required the registration of every male citizen of the United States and every other male person “residing in the United States.” It provided further that, despite registration, a citizen of a neutral country was to be relieved from liability for service upon his making application for such relief “in accordance with the rules and regulations prescribed by the President.” Any such person who filed such an application by statute was thereafter “debarred from becoming a citizen of the United States.” The Act did not define who was a male person “residing in” the United States.

The Regulations as promulgated have been found to be valid.2 Section 611.12 3 prescribed “when a non-declarant alien is residing in the United States.” Since Giz had not declared his intention to become a citizen of the United States, pursuant to the statute and to this regulation without more, he was deemed to be “residing in” the United States 4 unless he fell into an excepted category as provided by § 611.13.

Pursuant to the Regulations,5 Giz could have been deemed not to be “residing in the United States” if, by May 16, 1942, he had filed an Alien’s Application for Determination of Residence on Form 302. But he filed no such application by May 16, 1942. Indeed, not until May 31, 1944, did he file Form 302. Thus, as we are saying concerning Gurcay and Moran, the status of Giz as an alien “residing in the United States” must be taken as confessed for the purposes of § 3(a) of the Selective Training and Service Act and of the Immigration and Nationality Act.6 But the law and the circumstances determining his status for the purposes of this case do not stop there.

From 1940 on, having registered as he was bound to do, Giz was charged with notice as to the requirements of the law. It was “incumbent upon him to keep informed of any conditions attached to any claim for exemption before he undertook to press one.” 7 Yet, ten months after the promulgation of the Regulations, and seven months after his status had already become fixed, he filed, not Form 302, but Form 301. Although he was already classified 4-C as a citizen of a neutral country, he asked for complete exemption from military service. On December 31, 1942, he signed and filed with the local draft board his application containing the statement:

“I do hereby make application to be relieved from liability for training and service in the land or naval forces of the United States, under the Selective Training and Service Act of 1940, in accordance with the Act of Congress, approved December 20, 1941. I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States. I have not filed a declaration of intention to become a *30citizen of the United States.” (Emphasis supplied.)

He brought himself squarely within the provision of § 3(a) of the Selective Training and Service Act, and thereby he became “debarred from becoming a citizen of the United States.” He not only sought and received the benefits and the protection of life in the United States, he pursued and completed his professional education while tens of thousands of others responded to the nation’s wartime needs. But not Giz. It is possible to conclude, irrespective of the Board of Immigration Appeals, that, without regard to any other consideration whatever, he intended to remain safe and secure while carrying out his own purposes. Even when his visa had expired, he moved to a different city and opened an office for the practice of his profession. Indeed, when applying for suspension of deportation in 1950, he claimed he had resided in the United States for more than seven years and was so residing on July 1,1948. Quite apart from differing connotations of legal definitions of “residing,” the continuing purpose of Giz throughout the past seventeen years seems clear enough, and the fact is that he is still here.

But the courts have now been asked to say that he was a non-resident. We are asked to decide that his case differs from those of Gurcay and Moran because, as of May 31, 1944, he filed an application for Determination of Residence, Form 302. We do not understand the reference to a “waiver” in terms of a timely filing. Although Giz had already forfeited his nonresident status, if he had one up to May 16, 1942, just as did Gurcay and Moran, the Director nonetheless gave Giz the benefit of consideration. Giz actually, by the additional consideration of his case, received more, not less, than was his due. We see no basis here upon which it can be urged that Giz was harmed on that account, or that he was treated any differently than was warranted by the facts and the law. “In all cases where an application was not filed within the 90 days, the Director of Selective Service determined whether or not the alien was ‘residing in the United States.’ In such connection, he also had the authority to cancel the registration of any nondeclarant alien and to issue or authorize the issuance of an Alien’s Certificate of Non-residence (DSS Form 303).” 8 The Director affirmed in 1944 what the law had already determined, that Giz had been a resident for the purposes of the Act, and a Certificate of Non-residence was denied.9 Thereafter, Giz, on July 11, 1944, was classified as a medical student, and he remained deferred throughout the war.

No neutral alien was compelled to serve in our military forces, but when Giz claimed relief from such service because he was a neutral alien, Congress said that he was not to become a citizen of the United States in the future. To us it seems that Giz comes squarely within the interdiction.

The order of the District Court in No. 12839 is

Affirmed.

. 54 Stat. 885 (1940), as amended, 55 Stat. 845 (1941), 50 U.S.C.App, 303(a) (1946).

. Mannerfrid v. United States, 2 Cir., 1952, 200 F.2d 730, 782, certiorari denied, 1953, 345 U.S. 918, 73 S.Ct. 729, 97 L.Ed. 1351; cf. McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S.Ct. 224, where the Court did not pass on the validity of the regulations set forth in 340 U.S. at page 173, note 19, 71 S.Ct. at page 231, since they were not effective when Kristensen filed his application for relief.

. 32 C.F.R. § 611.12.

. Mannerfrid v. United States, supra note 2; cf. Benzian v. Godwin, 2 Cir., 1948, 168 F.2d 952, certiorari denied, 1948, 335 U.S. 886, 69 S.Ct. 235, 93 L.Ed. 425, modified in part by McGrath v. Kristensen, supra note 2.

. § 611.13(a) (6).

. Mannerfrid v. Brownell, 1956, 99 U.S.App.D.C. 171, 238 F.2d 32.

. Mannerfrid v. United States, supra note 2, 200 F.2d at page 732.

. U. S. Selective Service System, Problems of Selective Service, Vol. 1, p. 107 (1952).

. Ex parte Ghosh, D.C.S.D.Cal.1944, 58 F.Supp. 851, is clearly distinguishable, for Ghosh, a Hindu, was on that account ineligible to become a citizen of the United States. Not being entitled to be either a citizen or a permanent resident, Ghosh would have been in the United States unlawfully unless he was here only temporarily as a visitor; cf. Estep v. United States, 1946, 327 U.S. 114, 121, 66 S.Ct. 423, 90 L.Ed. 567; and see U.S. Selective Service System, Problems of Selective Service, Vol. 2, pp. 134-143 (1952).