UNITED STATES of America, Appellant, v. Thomas BAZAN, Appellee

United States Court of Appeals for the District of Columbia Circuit1955-12-01No. No. 12431

228 F.2d 455

Summary · law.co

Holding. The court affirmed the District Court's grant of naturalization because the government failed to present evidence establishing that Bazan was actually relieved from military service on the ground of his alienage, which is a statutory prerequisite to barring citizenship.

Thomas Bazan, a Spanish citizen admitted to the United States for permanent residence, applied for an exemption from military service in 1942 based on his alien status and later sought to withdraw that application. When he petitioned for naturalization in 1948, a Naturalization Examiner recommended denial based on a federal statute barring citizenship for aliens who obtained relief from military service on grounds of alienage. The District Court granted naturalization, reasoning that Bazan's attempt to withdraw his exemption application should remove him from the statutory bar.

On appeal, the Government argued that the statute's plain language admits no exceptions. The court examined the governing statute, which requires two elements to bar citizenship: that an alien applied for exemption on grounds of alienage and that the alien was actually relieved from service for that reason. The court found no evidence in the record supporting the second element—that Bazan was relieved from service because of his alien status. Because this essential factual element was absent, the court affirmed the naturalization grant without needing to address whether the withdrawal doctrine independently justified the result.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an alien who applied for military service exemption but attempted to withdraw the application is permanently barred from citizenship
Evidentiary sufficiency of the statutory elements required to bar naturalization
Application of the locus poenitentiae doctrine to exemption from statutory citizenship bars

Procedural posture

The Government appealed from a District Court order granting Bazan's naturalization petition despite a Naturalization Examiner's recommendation of denial based on alleged statutory ineligibility.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

Thomas Bazan, a citizen of Spain, was admitted to the United States for permanent residence in 1941. About a year later, he declared his intention to become a citizen of the United States. In November 1942, he filed an application (Selective Service Form DSS 301) claiming exemption, as a neutral alien, from the draft for military service. He sought to withdraw this application in September 1943, but the Selective Service System ruled that such application could not be withdrawn. When he petitioned for naturalization in 1948, the Naturalization Examiner recommended, after a preliminary hearing, that the petition be denied. This’ recommendation was based on the legal conclusion

“That pursuant to Sections 101 (a) (19) and 315 of the Immigration and Nationality Act and Section 3 (a) of the Selective. Training and Service Act of 1940, petitioner by applying for and being relieved from military service because of alienage is debarred from becoming a citizen.”

The District Court rejected the examiner’s recommendation. It granted naturalization on the ground that, under the doctrine of locus poenitentiae, Bazan’s request for withdrawal of his exemption application operated to except him from the statutory bar to citizenship. The Government brought this appeal, asserting that the express language of the statute precludes such exception.

There is no dispute that § 315 (a) governs here. That section provides :

“Notwithstanding the provisions of section 405(b) of this Act, 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.”

Thus, to debar appellee from citizenship, the statute requires proof not only that he applied for exemption on grounds of alienage but also that he was relieved from serving for that reason. The examiner’s legal conclusion that appellee was relieved from “military service because of alienage” is not supported by any evidence in the present record, as the appellant recognizes. We think the total absence of any such essential evidence is a sufficient basis for affirming the District Court’s order granting naturalization. It is therefore unnecessary to decide whether the order may also be affirmed on the District Court’s application of the doctrine of locus poenitentiae.

In a supplemental memorandum, filed after oral árgument pursuant to our request, appellant urges us to remand the case to permit introduction of the additional evidence we now hold essential to show a basis in fact for the claim of error it makes. Without deciding in what circumstances such a remand would be warranted, we think it is not warranted in the particular circumstances of this case.

Affirmed.

. A similar conclusion served as the basis for denial of appellee’s 1946 petition for naturalization. No claim is made that this earlier denial is res judicata as to the present petition.

. 66 Stat. 242 (1952), 8 U.S.C. § 1426 (1952). Section 315 is applicable here, even though the petition was filed prior to its effective date. Ballester Pons v. United States, 220 F.2d 399, 404-405 (1st Cir. 1955).

. 62 Stat. 963 (1948), 28 U.S.C. § 2106 (1952)