In re Naturalization of Gjerstad

307 F. Supp. 329, 1969 U.S. Dist. LEXIS 8664
CourtDistrict Court, N.D. California
DecidedNovember 7, 1969
DocketNo. 174311
StatusPublished

This text of 307 F. Supp. 329 (In re Naturalization of Gjerstad) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Naturalization of Gjerstad, 307 F. Supp. 329, 1969 U.S. Dist. LEXIS 8664 (N.D. Cal. 1969).

Opinion

GERALD S. LEVIN, District Judge.

Petitioner Stefan Lars Gjerstad was born and raised in Sweden, having completed his military service in that country and having studied law for two and one half years at Lund University. He came to this country as an immigrant in 1950 at the age of 24 years, nine months, with the intention to further his education in international banking. Finding things to his liking, he thereafter decided to remain permanently.

Petitioner registered for the draft with Local Board No. 43 in San Francisco on November 14,1950. He was classified I-A on December 14, 1950, and ordered to report for an Armed Forces physical on January 15, 1951. Instead, on January 9, 1951, petitioner went to his draft board and executed SSS Form No. 130 (APPLICATION BY ALIEN FOR RELIEF FROM TRAINING AND SERVICE IN THE ARMED FORCES), which form contained the following statement:

“I hereby apply for relief from liability for training and service in the armed forces 1 of the United States. I have read the NOTICE given below, and I understand that I will forever lose my right to become a citizen of the United States, and I may also be prohibited from entry into the United States or its territories or possessions as a result of filing this application” (Emphasis added.)

Petitioner’s application for exemption was granted by the Selective Service System. He was relieved from liability for training and service in the armed forces on January 11, 1951, and was reclassified IV-C. He retained this classification until December 19, 1951, when he was classified V-A (a registrant over 26 years of age).

Petitioner filed his first petition for naturalization without prejudice pursuant to a request for withdrawal. When [331]*331the present petition was filed, the Immigration and Naturalization Service conducted an investigation 2 concerning petitioner’s qualifications for admission to citizenship. The investigation failed to reveal any derogatory information with regard to petitioner’s character or loyalty.3 However, pursuant to the provisions of the Immigration and Nationality Act § 315(a), 8 U.S.C. § 1426(a),4 the Immigration and Naturalization Service has found that petitioner is ineligible for American citizenship and has recommended that his petition therefor be denied.

Petitioner now claims that he did not read SSS Form No. 130 before signing it, nor was he advised of the consequences of applying for a draft exemption on the ground of alienage. According to petitioner’s uncorroborated testimony, at the time he signed the form he was still a reservist in the Swedish Armed Forces, and had been advised by an official of the Swedish Consulate in San Francisco that he could merely sign a form provided by the Selective Service System and thereby avoid military service in the United States “without prejudicing any future rights” he might have as a resident of the United States. He further stated that before coming to the United States, the American Consul in Stockholm had advised him that he would not be subject to the draft. Petitioner contends that the “bureaucrats” intimidated him ino signing the form,5 and that therefore he' did not “knowingly and intentionally” waive his rights, thus bringing him under the rule expressed in Moser v. United States, 341 U.S. 41, 46-47, 71 S.Ct. 553, 95 L.Ed. 729 (1951), to be discussed hereafter.

We begin with the proposition that petitioner has no right, by the Constitution, statute, or otherwise, to become a naturalized citizen of the United States. As the Supreme Court said in United States v. Macintosh, 283 U.S. 605, 615, 51 S.Ct. 570, 572, 75 L.Ed. 1302 (1931):

“Naturalization is a privilege, to be given, qualified, or withheld as Congress may determine, and which the [332]*332alien may claim as of right only upon compliance with the terms which Congress imposes.”

Accord: Kahook v. Johnson, 273 F.2d 413, 414 (5th Cir. 1960).

From this it follows that the burden is upon the alien applicant to show that he is entitled to citizenship in every particular. Any doubts on this matter should therefore be resolved in favor of the United States and against the claimant. Berenyi v. District Director, Immigration and Nationalization Service, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967); Petition of Giz, 264 F.Supp. 252, 254 (C.D.Cal.1967). See United States v. Macintosh, supra, 283 U.S. at 626, 51 S.Ct. 570.

Far from being a confused and illiterate alien, petitioner has stated that he speaks and understands seven languages, including English, and that he had studied English for five years prior to his entry into this country. In addition, petitioner had studied law for two and one half years and was nearly 25 years of age when he first entered the United States in 1950. In Petition of Miranda, 111 F.Supp. 481 (E.D.N.Y.) 1953, the alien claimant had executed a form with his draft board similar to that involved in the instant case, and thereafter sought to avoid its effect by claiming that, at the time of its filing, he did not speak or understand English, nor had the form been read to him or translated for him. The court denied the claimant’s petition for citizenship, refusing to rely on his assertions without corroboration. The court noted that, “To accede to this view would require [us] in effect to rule that Local Board 24 accepted a document which had no valid inception.” Id. Accord: In re Calvo’s Petition, 161 F.Supp. 761, 763 (D.N.J. 1958).

It has also been repeatedly held that an alien cannot avoid the consequences of filing a form requesting exemption from military service based on alienage merely by claiming that he is ignorant of, or was not advised of, the legal consequences that would flow from, signing — even where he could not understand English at the time of the signing. See, e. g., Ungo v. Beechie, 311 F.2d 905, 907 (9th Cir. 1963); cert. den. 373 U.S. 911, 83 S. Ct. 1301, 10 L.Ed.2d 413 (1963); Kahook, supra, 273 F.2d at 414; Gilligan v. Barton, 265 F.2d 904, 908 (8th Cir. 1959).

Petitioner relies heavily on, and seeks to bring himself within the rule of, Moser v. United States, supra. In Moser, the alien claimant had applied for and been granted exemption from military service in the United States. When he later applied for American citizenship, his petition was denied based on the provisions debarring from citizenship anyone who had applied for and received an exemption from military service based on alienage. Moser proved, however, that pursuant to a treaty6

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Related

United States v. MacIntosh
283 U.S. 605 (Supreme Court, 1931)
Moser v. United States
341 U.S. 41 (Supreme Court, 1951)
Kahook v. Johnson
273 F.2d 413 (Fifth Circuit, 1960)
Alfons Simon Keil v. United States
291 F.2d 268 (Ninth Circuit, 1961)
In re Miranda
111 F. Supp. 481 (E.D. New York, 1953)
In re Naturalization of Calvo
161 F. Supp. 761 (D. New Jersey, 1958)
In re for Naturalization of Bergman
173 F. Supp. 880 (D. Minnesota, 1959)
In re for Naturalization of Fuchs
220 F. Supp. 129 (D. Rhode Island, 1963)
In re Giz
264 F. Supp. 252 (C.D. California, 1967)
Fisher v. North Branch Products, Inc.
373 U.S. 913 (Supreme Court, 1963)

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307 F. Supp. 329, 1969 U.S. Dist. LEXIS 8664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-naturalization-of-gjerstad-cand-1969.