Astrup v. Immigration and Naturalization Service

RESPONDENT: Immigration and Naturalization Service
LOCATION: United States District Court for the District of Columbia

DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 402 US 509 (1971)
ARGUED: Apr 20, 1971
DECIDED: May 24, 1971

Facts of the case


Media for Astrup v. Immigration and Naturalization Service

Audio Transcription for Oral Argument - April 20, 1971 in Astrup v. Immigration and Naturalization Service

Warren E. Burger:

840, Astrup versus the Immigration and Naturalization Service.

Mr. Halvonik, you may proceed whenever you’re ready.

Paul N. Halvonik:

Thank you. Mr. Chief Justice, Members of the Court.

Actually, this case is quite simple, the principle facts occurring in the years 1950-1952.

The petitioner here lawfully entered the United States for the purpose of permanent residency in the year 1950.

In the summer of that year, he registered for the draft.

He was, later that summer, drafted, but he didn’t submit to an induction.

He signed an exemption from military service which was provided by the 1948 selective service law.

That exemption provided that neutral aliens or permanent residents would be exempted from the draft if they executed the form.

In exchange, they would be relieved of liability for service in the armed forces.

The following year, in 1951, Congress amended the draft law to provide that permanent resident aliens could be drafted, thus, removing the exemption, part of the bargain in the favor of the petitioner.

As we point out in our brief, this was a drastic departure from prior law.

Never before did neutral aliens been drafted by this Country if they chose not to be.

Petitioner was drafted again.

This time he went down to submit to induction, but he was rejected because he did not-- he was not physically fit for service.

The next significant date is 1952 when Congress adopted Section 315 of the Immigration and Nationality Act, the section which petitioner contends controls here.

Section 315 provides what this Court has characterized as a two-pronged test where an alien who has sought exemption from military service is seeking citizenship.

It provides that the alien must (1) have sought the exemption and (2) been relieved from military service prior to that 1952 law which required exemption because, the execution of the exemption, because that also grants release from liability.

But Congress, evidently, because of the intervening law taking away this release from liability for aliens who had signed the exemption now provided the two events had t occur, and we contend that the petitioner was not relieved from liability since he was drafted and that, therefore, he should be admitted to citizenship.

Now, the government, at least below and I assume, still takes the position that had petitioner actually served in the armed forces, he would be eligible for citizenship.

Now, we contend that that’s a misreading of the statute.

It says liability from military service, not service in the armed forces, not actual service.

That if Congress meant actual service, it would have said so.

It merely said those who were not relieved from liability are eligible for citizenship, and petitioner was not relieved from liability.

Moreover, it wouldn’t make much sense to make a distinction between those who were physically fit and could actually serve and those who would flump the physical.

The Congressional scheme makes a good deal of sense.

Now the government, in its reply brief in this case, has raised a new argument that was not raised before, and that is that this section that has been the focus of all the litigation up to now, Section 315, isn’t applicable to the case.

The government and both Courts below thought it was applicable and did both Courts below.

But, the government contends that the Saving Clause, which is Section 406 (a), of the Immigration and National-- Naturalization Act keeps petitioner’s status the same as it was in the year that he signed the exemption.

There are a number of problems with the argument.