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


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.

Paul N. Halvonik:

First of all, it’s inconsistent with the government’s general position that if petitioner had served, he would be eligible for citizenship because the Section 315 Act doesn’t apply to people who signed the exemption before 1952.

Potter Stewart:

Mr. Halvonik.

Paul N. Halvonik:


Potter Stewart:

The government has filed only one brief, didn’t it?

Paul N. Halvonik:

That’s correct.

Potter Stewart:

Because you talked about a reply brief.

Paul N. Halvonik:

Their reply brief, right.

That’s the only brief they filed. The filed other briefs in the Courts below, but I was referring to– they have filed, but the one brief in– the brief essentially relies on this point.

I want to emphasize that that’s inconsistent with their general theory that if he’d served, he would be eligible for citizenship because if that Savings Clause saved all the disabilities of everybody, then it would save those who also served in the armed forces, and– thus, Congress, in trying to create this new status in 1952 for people who was drafting, would be unsuccessful.

Now– but, the inconsistency, I think, in the government’s position points out their misreading of Section 406 (a) in relation to Section 315, because Section 315 is an exception to the Savings Clause in Section 406 (a).

Section 315 is meant to change status.

That’s what it’s there for.

It’s meant to change the series of invents that result in ineligibility for citizenship and add a new condition before one becomes ineligible.

That’s precisely what it’s for and it, therefore, is a specific exception to the Savings Clause.

It begins with the language “notwithstanding anything contained in Section 405 (b),” which is another Savings Clause that deals with the petitions for naturalization that are pending.

And, the government takes the position that since there’s this “notwithstanding Section 405 (b)” language, therefore, Congress meant to leave Section 405 (a) as a continuing status controlling all of these cases.

Well, that’s inconsistent with the case relied on by the government, Shomberg.

Shomberg also started out with “notwithstanding Section 405 (b)” language, didn’t refer specifically to Section 405 (a) but this Court said “well, it may well be that the ransom could’ve been more exact, but there was no question that since, in that case, Section 318 was designed specifically for this problem, it’s designed specifically to change status, that it was an exception to the Savings Clause” and, here, all you need to do is look at the language of Section 315 to see that it is supposed to have retroactive effect.

It refers to the past tense. It refers to those who have applied, in the past, for exemption.

Moreover, I think, probably, Section 315 doesn’t have that much perspective impact.

Its main impact is retrospective.

There are a very few people under the change of the laws who could properly receive this exemption than they’ll ever be in a position to apply for citizenship or to acquire permanent residence.

I think Section 315 is principally designed for cases such as that one here.

It’s principally designed for retrospective application.

I won’t dwell too much longer on Section 315.

We have, in our brief, gone into some great length about the history of this exemption, about the history extending back to the Civil War of telling aliens “you can either accept the burdens of citizenship or not” and you make your decision and that’s that.

You’re released from the obligations of citizenship and you don’t get the benefits.

What 315 is designed to do is to take care of the people who did have the obligation imposed on them, of the citizen obligation of military service after they had signed the exemption.

That’s also relevant to our second contention in this case.

We contend in the brief there that petition didn’t make a knowing waiver of his eligibility for citizenship because he wasn’t apprised properly of the nature of the bargain he was making.

Paul N. Halvonik:

We rely there on the Moser case.

In Moser it was held that though the alien had signed the exemption form, he would not be bound to it because he had been officially told by both the United States Government in this ligation that it didn’t really mean that he couldn’t become a citizen, and the Court here didn’t rely on the estoppel theory to say there wasn’t a knowing waiver of the eligibility because he wasn’t properly appraised of the consequences.

But, we say the same thing happened here.

He wasn’t given any real choice because the choice was illusory.

He wasn’t told really what was going to happen.

He was told “if you take this exemption, you will receive this benefit.”

Harry A. Blackmun:

When you say he wasn’t told what was really going to happen, precisely what are you alluding to?

Paul N. Halvonik:

I’m alluding to the fact that he was told that he wouldn’t be able to become a citizen but he was also told that he would be released from liability for service in the armed forces, and best he made his choice looking at these two alternatives, but those alternatives, it turns out, weren’t real.

He wasn’t really getting that.

He wasn’t getting that release from liability.

Now, the government says “well, it’s just a change in law, and that sort of happens.

When you enter into a bargain, you have to perhaps anticipate that somebody will change the law.”

And, that may be a good argument where it’s a private contract but, here, the party that he made the agreement with was the government and it was that government that told him that he would not have to serve.

He’d be released from liability for military service.

It was then the government, the very institution with which he made the agreement, that went back on the promise because the consideration was initially illusory and he was not given a fair opportunity to make a choice between the exemption of service.

I think it’s significant in Moser where this was referred to as a rule of elementary fairness, that the Court cited Johnson v. United States which is in 318 Unites States Reports.

And, what happened in Johnson was this.

It was a matter that arose during a criminal trial.

The defendant had taken the stand and was testifying, and then tried to invoke the privilege against self-incrimination, and the judge permitted him to invoke that, although it was clear, at least in retrospect, then that, on appeal, he ruled improperly and shouldn’t have allowed the defendant to exercise any privilege against self-incrimination.

Nevertheless, the defendant did exercise his privilege, but then the Court permitted the prosecutor to comment upon it, and that was held error in the violation of the rule of elementary fairness for this reason.

Because he– although he did get what he was told he would get, that is he was allowed to forgo testifying, he wasn’t told that the prosecutor would comment upon it.

And, the Court said in Johnson, if he’d been told that this was going to happen, he might have acted very differently.

He would’ve then been presented with different sorts of alternatives.

He might have made a different sort of judgment, and we can’t lead somebody out and not tell him all the facts then consistent with elementary fairness– elemental fairness, hold him to his original position.

Harry A. Blackmun:

You’re talking about the rule of elementary fairness.

Is that a constitutional rule or what?

Paul N. Halvonik:

Well, I assume from both Moser and Johnson that it’s a rule of– that this Court would enforce if there weren’t any other objection to it, any constitutional objection the other way.

I don’t know– I don’t look upon it as necessarily a constitutional rule, no.

Harry A. Blackmun:

So, it’s just anything that the majority of this Court thinks is elementary fair or unfair?

Paul N. Halvonik:

Well, I think when you’re resolving situations such as deciding in Moser whether a man intelligently waived his right to become a citizen, which is also the question here, or you’re deciding in a question like Johnson whether a man intelligently exercised the privilege against self-incrimination, one necessarily looks to see what’s fair and if he’s been misled by the government, it’s hardly fair to make him suffer the consequences of his original position.

William J. Brennan, Jr.:

That’s illegal or unconstitutional?

That’s a way to decide, isn’t it, not whether or not it’s fair or unfair in our subject of opinion?

Paul N. Halvonik:

Well, we’re here, I suppose, to decide two things.

First of all, whether there was an intelligent waiver, and that’s where Johnson and Moser are relevant.

And, in deciding whether there’s an intelligent waiver, the question goes back into one of what’s a fair arrangement when you offer somebody something and then take it away, and that goes to the intelligent waiver.

The second point, I suppose, goes to one of statutory construction in trying to determine what Congress meant to do with Section 315.

Now, it’s our contention that Congress realized that what it had done wasn’t fair and was trying, by the amendment in 1952, to take care of those cases where they removed the consideration.

Potter Stewart:

This case does involve a matter of statutory construction?

Paul N. Halvonik:

It does.

Potter Stewart:

Not a constitutional issue.

Paul N. Halvonik:

Well, it doesn’t involve the constitutional issue, except to the extent that one would think considerations that were relevant to this Court in reaching constitutional determinations would also be relevant to Congress when they’re trying to construct the statute.

It’s to that extent that we’ve raised issues.

We’re relying on the Greene v. McElroy rationality that unless Congress has explicitly exercised its power in a way that will conflict generally with fundamental liberties, it will be assumed that Congress would accord these guarantees the same sort of respect that this Court would.

And, it does seem to me also, Mr. Justice Stewart, and in talking about fairness when there might be an ambiguity in the statute or there can be some reasonable difference between people about what the statute means that, looking to–

Potter Stewart:

I see you have, in your brief, made constitutional arguments including an Eighth Amendment argument.

Paul N. Halvonik:

Yes, our constitutional arguments, as I say, are, it seems to me, inconceivable that the Court would declare Section 315 unconstitutional on the basis of the arguments that we have made.

What we have said is that if Section 315 were interpreted as the government wants it interpreted, we have a number of strange things.

We have a man not becoming a citizen because he can’t pass an armed force physical, which is very peculiar.

This has no relation to being a good citizen.

Additionally, it seems to be a forfeiture because of an illness.

Now, we raised those to point out that Congress didn’t intend that at all.

When Congress said liability, it referred to liability, not actual service, in the armed forces and that, therefore, the statute, consistent with constitutional principles, ought to be interpreted to, well, interpret it in such a way that the result was that petitioner was eligible for citizenship and that Congress would have these things in mind too.

That’s why it used the language it did.

Fairness again to come back to what may be relevant too in wondering about the government’s distinction between people who actually served and people who had not served.

This petitioner, everybody agrees, would make a fine citizen.

He’s lived in this country 20 years.

He’s a vital member of the community.

We, in San Francisco, refer to as the East Bay.

He’s of good moral character.

He’s attached the principles of the constitution.

Paul N. Halvonik:

It’s quite understandable, he’s execution of that exemption back in 1950.

He just arrived in the country.

He was looking around.

He hadn’t made a decision one way or the other.

He’d just done 14 months to earn duty with the Danish Navy.

He was a young man.

He didn’t want again to go into a service in a country he wasn’t sure now that he was going to take in place of his native land where he’d already served.

He had come here from Denmark in 1950.

He wasn’t after all leaving from an area of famine or political oppression to come to this country.

He was just looking around a bit of time.

After he’d been here a while–

Potter Stewart:

How old was he?

Paul N. Halvonik:

He was 23 at that time period.

Warren E. Burger:

You have emphasized, I think exclusively, the change in the law.

Is there any other change factor here that enters into this equation of the “bad bargain,” the change in his physical status?

Paul N. Halvonik:

Yes, there was a change– there may have been a change in his physical status.

I don’t know if he–

Warren E. Burger:

If he’d known at the beginning, if he’d known at the outset that he would never pass the physical examination, would he have signed this– entered into this engagement, waiving the right to become a citizen?

Paul N. Halvonik:

If I understand your question, Mr. Chief Justice, if he knew he could avoid service through another way, would he have executed the exemption?

Warren E. Burger:


Paul N. Halvonik:

I would think–

Warren E. Burger:

Suppose, for example, that he had his right leg off of the knee at the outset, he just would’ve stood by and waited until they called him up and then demonstrated his lack of physical fitness then–

Paul N. Halvonik:

Well, that’s pretty– I imagine that’s true.

It would be a very unusual to go out–

Warren E. Burger:

Here, the physical condition– his acceptability for military service altered during this span of time didn’t.

At least they found him A1 physically at the early stage, and later they rejected him.

Now, is that rejection which plays a very important part, the rejection for physical disability plays a very important part, doesn’t it?

Paul N. Halvonik:

Yes, it does.

He would’ve served had he not been rejected for the physical disability.

I don’t think we know necessarily whether it was an intervening disability.

Paul N. Halvonik:

I mean, it may well be that it was there back in 1950 also.

These examinations, in my experience, are not always that thorough when something might be picked up one time and not the next.

So, it’s entirely possible that he had a disability in 1950 and had he actually reported for induction, it would have been discovered at that time.

Harry A. Blackmun:

Mr. Halvonik, what is the chronology?

Initially, did he not apply for exemption after he had been accepted physically and had passed his physical exam?

Paul N. Halvonik:

Yes, he passed the pre-induction physical.

Harry A. Blackmun:

And the second examination was how long after that, a year-and-a half or so?

Paul N. Halvonik:

About that, yes, a year-and-a half to– no, about a year later, I guess.

Harry A. Blackmun:

It wasn’t very long.

Paul N. Halvonik:

No, it wasn’t very long.

Harry A. Blackmun:

Is there any question at all about the integrity of his disability?

I take it–

Paul N. Halvonik:

It must be conceded that there’s no question about it because the government admits that he’s a man of good moral character and I assume that any man who malingered or came up with a fraudulent illness in order to avoid military service wouldn’t be deemed by the government a man of good moral character.

Harry A. Blackmun:

What was the cause of the– his not passing the physical?

Was it bursitis?

Paul N. Halvonik:

It was bursitis, yes.

Harry A. Blackmun:

Well, this doesn’t last very long.

Paul N. Halvonik:

No, it doesn’t.

What happens here was that he was then– he became over-aged after he had not passed his physical and he was then later on classified as over the age of liability.

Mr. Halvonik, what is the ground in which you distinguish Ceballos?

Paul N. Halvonik:

Well, Ceballos didn’t qualify into the 1952 statute.

This Court said, there, it was a 1951 and, thus, he didn’t have the advantage of the two-pronged tests.

Ceballos raises some other points, it seems to me, that may be relevant.

I should distinguish it in relation to Moser argument, this idea of the government entering into a bargain and then not keeping its part and whether that’s pertinent here.

Ceballos is a little different case because it isn’t the government.

It wasn’t any action of the government that took away from him the bargain.

Well, this country’s status changed and that’s something I suppose you have to expect when you take advantage of a neutral alien status that your country may become co-belligerent.

But– so, it was events that changed the bargain there, a fence on the outside, but here what changed the bargain was the government’s taking away its part of the consideration, the government itself.

William J. Brennan, Jr.:

Mr. Halvonik, had he– the second time around, had he served, do I understand that the government would not oppose the petition for naturalization?

Paul N. Halvonik:

I believe that’s the case.

Paul N. Halvonik:

You will have to ask the government, but that has been the government’s position in the Courts below.

William J. Brennan, Jr.:

And there had been holdings to this effect in the Second Circuit and another?

Paul N. Halvonik:

And the Ninth Circuit, the Lacher case in the Ninth Circuit.

William J. Brennan, Jr.:

So that your position then focuses on the fact of his not passing the physical examination?

Paul N. Halvonik:

That’s right.

That seems to be the significant factor here.

The passage of time, of course, that relate back to this question about his physical change, the passage of time whenever you defer your military service, certain interesting things are likely to occur in between them.

It makes this kind of service you do different than it would’ve been.

Now, these may be in your favor or they may not be in your favor at all.

Lacher, for example, was a case that the government has sup– says it was decided correctly in the Ninth Circuit, a man who applied for the exemption but actually served and got advantage of the two-pronged test.

But, Lacher, it’s interesting to note, by postponing his induction was able to avoid the Korean War, which made life somewhat simpler for him, I should suppose. He didn’t go in when it was really a shooting war.

Now this petition, on the other hand, had he passed the physical, would’ve been enduring the Korean War and he didn’t know he wasn’t going to pass his physical.

He wrapped up his life and it went down and tried to get into service, tried to recognize the obligation that was imposed by the order to report for induction.

When a man actually serves after being– after signing this exemption and being told that he won’t have to, the unfairness, the lack of the bargain here, the government’s not meeting its end of the bargain is obvious, just vividly.

But, I can’t see where it’s any different when a man doesn’t serve because he can’t pass the physical.

He’s done everything in his power that he can possibly do to accept the obligation and to manifest his recognition of the obligations that he’s assumed now.

It happens, in both cases, that the man does everything possible.

One man just physically isn’t able to enter the armed forces, and that can’t be a distinction between whether a man becomes a citizen or not, and the language of the statute doesn’t say that.

I submit that if Congress wanted only those people to be admitted to citizenship, who had entered the armed forces, it would’ve said “applied for the exemption and actually did not serve in the armed forces,” that those were people who were ineligible for citizenship, but it doesn’t say that.

It says “people who are ineligible for citizenship or people who want to sign the exemption until relieved from military liability,” and military liability is what petitioner had.

He wasn’t relieved from that, and that’s the language of the statute and that’s the language that should control here.

William J. Brennan, Jr.:

But, in this case, it comes down, does it, I’m over simplifying it, to his eligible for citizenship if he passes his physical examination.

Paul N. Halvonik:

That, as I understand it, it’s the government’s position and I think that’s in Kemble, and it isn’t supported at all by the language of the statute which, again I emphasize, refers to liability and in any case when we’re talking about liability for military service, we’re talking about having to submit to induction, and that’s not actually serving in the armed forces.

In every area of the law, by “liability” we mean that there’s a classified in 1A, ordered to report for induction, that you become liable.

You don’t recognize your obligation, you’re prosecuted, but the liability is demonstrated when that order to report for induction comes, not if you pass the physical examination.

Warren E. Burger:

Thank you, Mr. Halvonik.

Paul N. Halvonik:

Thank you.

Warren E. Burger:

Mr. Stone.

Richard B. Stone:

Mr. Chief Justice and may it please the Court.

In the government’s view, this case raises essentially two questions.

Richard B. Stone:

One, whether petitioner’s eligibility for citizenship is in fact governed by the Selective Service Act of 1948 or by the Immigration and Nationality Act of 1952 and, two, assuming that the 1952 Act applies, whether petitioner is nonetheless eligible for United States citizenship now by virtue of his having apply for and obtain an alien’s exemption from the draft in 1950.

I think both of these questions raise rather related and difficult issues of statutory interpretation of the 1952 Act and, without reiterating material that has already been gone over or that is familiar to this Court, I think it might be helpful right now if I very briefly place the 1952 statute in its context.

Under the Selective Service Act of 1948, as under the predecessor statute of 1940, an alien who applied for exemption from the draft on grounds of alienage was thereby permanently debarred from seeking citizenship.

Thus, when petitioner asked to have sought and obtained an alien’s exemption shortly before his scheduled induction in 1950 after having passed the physical examination for the draft, the sole test in the military service area of an alien’s eligibility for United States citizenship was in fact whether that alien had submitted a valid application for an exemption on grounds of alienage.

Now, I take it that all agree that if the 1948 Act is applicable to this case, Mr. Astrup is clearly ineligible for citizenship and I guess there can be no dispute of this point.

In view of this Court’s holding in Ceballos v. Shaughnessy in which a unanimous Court and an opinion by Mr. Justice Brennan held that, under the 1948 Act, an alien– exempt alien who subsequently loses his exemption, but like the petitioner here fails to pass a physical examination, continues to be ineligible for citizenship.

Well then in June of 1951, as the Korean War grew in intensity, Congress did what it had done several times before during war time.

It put increasing pressure on aliens residing in the United States to participate in the war effort.

In the case of permanent resident aliens, such as petitioner, Congress simply amended the Selective Service Act of 1948 to provide that permanent resident aliens were no longer eligible for draft exemptions on grounds of alienage, and this law affected both those aliens who had already sought and obtained alien’s exemptions and those who had not done so.

But, what about the citizenship status of those aliens who had in fact obtained alien’s exemptions which were no longer valid and who were now eligible theoretically, at least with respect to their alienage, to be called for military service?

It certainly would have been possible, though by no means necessary, for Congress to have provided in the 1951 amendment for some sort of adjustment to the ineligibility for citizenship of those persons like petitioner who were no longer exempt by virtue of that amendment.

And I guess, in any event, it would’ve been logical for Congress to have said something, one way or the other, in the 1950 statute directly about the citizenship eligibility of those persons whose exemptions had been taken away by that statute.

But, Congress said nothing, that is nothing more than that permanent resident aliens were no longer exempt by virtue of their alienage, and I take it also that one day after that statute became effective and for at least the next year-and-a half until the effective date of the 1952 Immigration and Nationality Act, no one doubted that the Selective Service Act of 1948 continued to govern the citizenship eligibility of those persons like petitioner and that, consequently those who had applied for alien’s exemptions continue to be debarred from seeking citizenship.

Then finally, in 1952, Congress passed the Immigration and Nationality Act of 1952 which is the statute that gives rise to the problems of this case and which, for the first time, incorporated the rules governing citizenship eligibility of aliens in a context other than the Selective Service Act, that is, the citizenship eligibility in its relationship to military service.

Now, as we know, the 1952 Act set out a somewhat different test of citizenship eligibility.

In the words of this Court in Ceballos v. Shaughnessy, a two-pronged test and that is the formulation that has been used ever since though it has never been clearly elaborated what exactly that test meant.

And, by that two-pronged test, an alien was debarred from seeking citizenship if he both applied for an alien’s exemption and “is or was relieved from service on such ground.”

Now, again, it would certainly been possible for Congress at that time to have settled the question of citizenship eligibility for those whose exemptions had been removed by the 1951 amendment by specifying that the two-pronged test set out in the 1950 Act would be applied to those persons.

But, again, Congress did not specifically referred at all to that class of persons, like petitioner, who had applied for alien’s exemptions prior to the passage of the 1952 Act– of the 1951 amendment that took that exemption away.

Instead, what Congress did was to put a Savings Clause in the 1952 Act which is Section 405 (a) of the Act.

Printed now is a note to 8 USC 1101 which said that “unless otherwise specifically provided,” all preexisting conditions, rights, Acts, things, liabilities, obligations, or matters arising under prior law shall continue in effect.

Byron R. White:

Mr. Stones, what class of aliens would have been entitled to take advantage of Section 315 (a) under the “or” has applied the language?

Richard B. Stone:

That– I want to get to that, Mr. Justice White.

That is a somewhat difficult question to answer precisely.

If we take the assumption that is– that applies or has applied, it must be parsed word for word, then it is difficult for me to think of anyone who, at the time the 1952 Act was enacted, had already applied, we would not come under the rule in this case, but this Court in–

Byron R. White:

Under your Savings argument, no one who had applied before–

Richard B. Stone:

Would be s–

Byron R. White:

Would be subject–

Richard B. Stone:

Would be subject–

Byron R. White:

Would be entitled to take advantage of the two-pronged–

Richard B. Stone:

That’s right, and–

Byron R. White:

That Section 315 would go on being applicable in the future.

Richard B. Stone:

That’s right, to the– it would– and there was still a considerable class of aliens to whom it would–

Byron R. White:

Who, at some date in the future, could have said “has applied.”

Richard B. Stone:

I think it is not unusual for Congress to place a statute like that both in the present and the past tense simply to be all inclusive and to make it unambiguous that it’s all inclusive at any time that it’s read.

I think there’s an implication that it means to be retroactive with the respect– with respect to the time that it’s enacted, but it isn’t necessarily so and, in Ceballos v. Shaughnessy, this question was raised and this Court did, indeed, specifically say that the Savings Clause was preserved intact and that the general language is or has applied did not apply to the petitioner in Ceballos v. Shaughnessy who is in an identical position, as I shall shortly elaborate, to the petitioner here.

The scheme is that, unless it is otherwise specifically provided, petitioner is debarred from citizenship arising under the Selective Service Act of 1948 and that, of course, that debarment is clearly a preexisting liability under Section 405 (a) of the Act.

It simply continues in effect and is unaffected by the test set out in Section 315, and this Court has held that the Savings Clause we are dealing with here is a very broad inclusive clause which has gotten around only with great difficulty.

In fact, as Mr. Justice Clark described Section 405 (a) in the Menasche case at 348 US, in which this Court very carefully examined the history of the Savings Clause is contained in the Immigration Act, and now I’m quoting from 348 US 535.

“The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress.

And, the implication of that Menasche case seems to be quite clearly that the Savings Clause of Section 405 (a) is applicable unless Congress makes a deliberate and specific statement of its intention to eliminate a preexisting right or liability, and Congress did not do that in Section 315 in our view.

Appropriately, for our purposes here, what Congress did was to say that the Section 315 shall apply notwithstanding the provisions of Section 405 (b).

Section 405 (b) is also a Savings Clause contained in the 1952 Act and it is significant to us, though not necessarily dispositive in light of other overwhelming evidence as this Court held in Shomberg, that Section 315 (a) does specifically accept 405 (b) but not 405 (a).

With respect to 405 (a), we have only the general language of Section 315 which covers an alien who applies or has applied for an alien’s exemption and I think that the Ceballos case really closes considering that clause sufficiently, in general language, to override the Savings Clause.

As I say, the petitioner in Ceballos and Shaughnessy was virtually in a position virtually identical to that of petitioner for these purposes.

He had filed his application for exemption before the date of the 1952 Act.

The only difference here is that, in Ceballos, the procedural posture of the case was slightly different.

It involved a review of an order of deportation rather than a naturalization petition, so that another clause of Section 405 (a) involving proceedings to suspend deportation was brought into play.

But, the crucial issue in Ceballos, as here, was the citizenship eligibility of an alien who applied for an exemption, was later exposed to the draft, and was subsequently found physically unfit for the service.

And, the Court found that the general language of Section 315 was simply not a specific exemption to the Savings Clause of Section 405 (a).

Now, on the assumption that Section 315 of the 1952 Act does redefine the citizenship eligibility of petitioner and others in his situation, in what way– the question is now, in what way does that statute, that is the 1952 Act, change petitioner’s eligibility for citizenship?

The committee report of the Senate Committee on the Judiciary which made a comprehensive preliminary study of the many provisions of the 1952 Act makes very little reference to Section 315 and, what little there is, implies to us that the Committee thought it was incorporating the ineligibility test set forth in the prior Selective Service laws.

I guess that language can’t have very strong effect because, after all, the language of Section 315, as this Court has held, does make a significant addition to the test of ineligibility 7in that it requires that an alien both apply for an exemption and that he’d be “relieved from service on such ground,” that is on–

Thurgood Marshall:

This doesn’t actually involve the case, but do women aliens have to do this too?

Richard B. Stone:

No, they don’t.

Thurgood Marshall:

I’m worried about this day and age.

Richard B. Stone:

They don’t, Mr. Justice Marshall.

They’re not affected by this because we don’t draft–

Thurgood Marshall:

But the statute says any person.

Richard B. Stone:

Well, I assume that–

Thurgood Marshall:

As a matter of practice.

Richard B. Stone:

As a matter of practice.

I assume that no Court would interpret that to include women since United States– the idea, after all, the statute is that aliens, in order to obtain citizenship, should subject themselves to the burdens of American citizens and American female citizens, at this point and time, don’t have the burden of military service.

Thurgood Marshall:

This is an argument that I pass from the merits of it, but that if he had served, he’d be in a different category.

Richard B. Stone:

Well, that’s right.

This is what we consider to be the essential result of the language of Section 315 in several Courts of Appeal and as the government now agrees, aliens who are subsequently drafted under Section 315 and actually served in the armed forces are no longer ineligible for citizenship.

In other words, “relieved from service” means effectively and permanently relieved from service, but–

Harry A. Blackmun:

Mr. Stone, you agree with that result in the Second and Ninth Circuits?

Richard B. Stone:

It’s the Second, Third, and Ninth Circuits.

Yes, Mr. Justice Blackmun, I think that I– the government had– did argue those cases and contest those cases.

I think it now agrees with the position taken.

I think it is a somewhat– in the statutory language, it’s somewhat a difficult position, but it’s so– I suppose it seems repugnant to many that those who actually end up serving and incurring that obligation and performing the duty of military service were– really should be relieved from their initial choice.

Harry A. Blackmun:

Well, what bothers me mildly is that then you’re in a position of making eligibility depend on a successfully physical examination.

Richard B. Stone:

Well, I think, Mr. Justice Blackmun, that that is on the surface when you first think about it, rather troublesome, and it did– we do find that there are aspects of our application of 3– Section 315 that are somewhat harsh, as I– we’ve pointed out in our brief and as I want to get to, but I don’t think it’s that specific aspect because I– if you think about it, what is– after all, what is at stake here is service.

The distinction made is with respect to whether an alien has or has not served, and if he has not served he can’t get out of his initial choice regardless of what the– what ground ultimately relieved him when he lost his exemption.

The fact that it is his failure to pass the physical examination which ultimately leads to his not serving on the second– on his second chance is really an incidental aspect of the fact that we make actual service of the test.

Once a person has declared that he’s an alien and wants to avail himself of the alien’s exemption and chooses not to become a citizen, we make it– we make service the test and the fact that the physical exam comes in to play is a rather incidental effect of that.

After all, there are many benefits which Congress has conferred upon veterans and people who have served in the armed forces that it doesn’t bestow upon American citizens who wanted to serve but were unable to do so, ineligible to do so for one reason or another, including failure to pass a physical examination.

Byron R. White:

Mr. Stone, would the government say the same result would be reached if there hadn’t been an amendment in 1952 where the man had actually been called to serve?

Richard B. Stone:

Well, in all those cases, Mr. Justice White, it has been stipulated, and I’m afraid the government has not been totally consistent after the– in the aftermath of Ceballos and Shaughnessy in arguing whether the 1952 Act or the 1948 Act apply.

It has been stipulated that we would construe this under the 1952 Act and the only reason I could really think of for this is that it– the language of the 1948 Act seems clearly to make it irrelevant whether a person served ultimately or not, but that position is just rather difficult to stomach in some way.

Byron R. White:

But, the– under your applicability argument or your Savings Clause argument, I suppose you make the same argument with respect to whether the 315– is that before–

Richard B. Stone:

I’d rather not face that, but I suppose we would make the same argument that, under the 1948 Act, actual service didn’t matter and, in one case, that was argued and held that actual service did not matter under the 1948 Act.

Byron R. White:

And actual service wouldn’t make any difference in terms of the applicability of 315.

Richard B. Stone:

That’s right.

Thurgood Marshall:

Mr. Stone, in your comparison with the man that actually applies who is not an alien and doesn’t pass the physical, am I correct that, here, if he passes the physical and is taken in and is subsequently dis– honorably discharged, he would be covered?

Richard B. Stone:

I suppose he would be, Mr. Justice Marshall.

I suppose that, under these cases which hold that service itself– well, I– that–

Thurgood Marshall:

I know.

Richard B. Stone:

That, actually, if he were dishonorably discharged, actually I suppose it could be argued depending on what time it was in his service.

Richard B. Stone:

It could be argued that he had not– that he had been effectively relieved because he hadn’t really served.

He had–

Thurgood Marshall:

My trouble is being subject to the draft and actually being drafted.

That’s my problem.

He was subject to the draft.

Richard B. Stone:

He was theoretically subject to the draft.

Thurgood Marshall:

He was subjected.

He took the physical.

Richard B. Stone:

He took the physical.

Thurgood Marshall:

One step.

Richard B. Stone:

And, unlike the first time he took the physical– he failed it, yes.

Now, let me just elaborate–

Harry A. Blackmun:

Mr. Stone, I’ll ask you one more question following through with Mr. Justice White.

Suppose, under the old statute, he had reconsidered and had passed and served, still ineligible in the government’s theory?

Richard B. Stone:

That theory is not involved in this case, Mr. Justice Blackmun, and we haven’t argued that position with respect to the 1948 statute.

We’ve asked in the opinions with respect to the 1952 statute, but I suppose, theoretically, the answer to that question is yes.

Now, I think it is very important to see exactly what language we’re dealing with in terms of this distinction between a person who has physically– who has been relieved from physical service and a person who has actually served.

Petitioner proposes that even though an alien who applies for an exemption on grounds of alienage is effectively and permanently relieved from service, that is he never serves in the armed forces.

He is not ineligible for citizenship if any other ground for exemption ultimately comes into play and contributes in any way that he’s permanently relieved from service.

In other words, though he doesn’t explicitly say this, he would read the phrase “relieved from service on such ground” as meaning relieved from service exclusively on grounds of alienage.

This would’ve been, of course, a rather radical departure from the 1948 statute which, arguably, wouldn’t even have saved him if he had served, but Congress certainly could’ve chosen to adopt this more generous position and to relieve from the consequences of their initial choice not to become citizens all citizens who applied for exemptions but were later exposed to theoretical liability for the draft.

As we have pointed out in our brief, it may be considered somewhat harsh, in fact, that Congress did not do so, though not for the reasons suggested by petitioner that the distinction is one of passing a physical examination because we consider that quite incidental.

But, we do feel that there is, perhaps, something harsh in the fact that petitioner did, after all, originally make his election not to serve in the armed forces and not to become a citizen on the assumption that he would continue to enjoy the assurance of an alien’s exemption from the draft and he was, by no means, entitled to presume that Congress would not– was foreclosed from removing his exemption.

There’s no evidence that anyone told him Congress was so foreclosed but, nonetheless, he probably did assume, vaguely or otherwise, that because of his alienage he would not have to think about liability for military service anymore.

Warren E. Burger:

Didn’t he assume something else too?

That he had remained physically eligible?

Richard B. Stone:

I guess he would have assumed that, Mr. Chief Justice.

Warren E. Burger:


Richard B. Stone:

He would assume that he would stay in the same condition he was in prior to 1952.

Warren E. Burger:

Could there be any–

Richard B. Stone:

And, for that reason, we consider petitioner in a much less harsh application of the statute than, perhaps, others similarly situated of who might not have had a change in their physical status between the time that they sought the first exemption and the time they the exemption–

Warren E. Burger:

Well I wonder, the laymen, as this man was, not a lawyer, thinking in technical terms, if he really sat down and had a debate with himself about all the elements that he ought to waive, surely he would’ve given priority to the continued physical condition that would render him eligible and would be far less likely to be trying to predict whether Congress was going to change or not change the law.

I think that would be true, wouldn’t it?

Richard B. Stone:

I’m afraid I don’t quite see the–

Warren E. Burger:

Well, if he sat down trying to evaluate what were the problems, what he should consider in his choice.

He’d certainly, immediately stop and consider “well, am I going to be able to get out of this military service on the grounds of physical disability?”

Richard B. Stone:

That’s right, and–

Warren E. Burger:

And if he knew, suppose he were consulting the doctor at the time and the doctor said “you’ve got an incipient diabetic condition,” he probably then wouldn’t have tried to rest on the other ground.

Richard B. Stone:

Would not apply for an alien’s exemption, that’s precisely the point.

That’s why I think that though we really have to take into account whether Congress– since Section 315 is not after all crystal clear whether Congress intended to hold all aliens to their end of this so-called bargain, arrangement, those certainly with the contract.

I don’t think that, really, the harshness of our interpretation of Section 315, such as it is, would apply in a case where an alien had passed his physical examination originally and only decided to chose his alien’s exemption after the fact of knowing he was physically fit for the draft.

In fact, several Courts of Appeals have made related arguments.

Every Court of Appeals that has decided this precise issue has, in fact, decided in the government’s favor and several have pointed out, in connection with this issue, that many things can happen.

An alien can assess his chances of getting an exemption on some other ground that would not debar him from citizenship before he chooses to claim his alien’s exemption, and then he may later loose that exemption.

But, in the interim period, many things that could happen that would change his draft status.

Things like marriage at one point, occupational defermance or illness.

Any of those things can happen during the period when he holds his exemption from the draft which might provide him with permanent relief from the draft that he would not have had but for his original choice of an alien’s exemption.

With respect to this petitioner, even if this Court were to take, let’s say, an intermediate position with respect to Section 315 that the alien doesn’t have to have been relieved exclusively on grounds of alienage but that, somehow, the government must show that alienage was the substantial or even the major factor contributing to his ultimate relief.

Petitioner can’t withstand that test either, I don’t think.

In any event, we, on balance, feel that the language of Section 315 is quite badly strained by a construction that his release from alienage must rest exclusively on grounds of alienage.

We feel that a more normal reading of that language which refers to an alien who is or was relieved from service, not from liability but from service, on grounds of alienage is that, as long as the alien’s exemption was one of the grounds contributing to his effective and permanent relief from service, he has been relieved on such ground within the meaning of Section 315.

We think this reading is far more in line with Congress’ attitude as expressed in the prior legislation, and we think that that prior legislation, the basic concepts of that legislation, were meant to be retained in the 1952 Act.

And, for that reason, we ask that this Court affirm the judgment of the Ninth Circuit.

Warren E. Burger:

Thank you, Mr. Stone.

Mr. Halvonik, you have five minutes left.

Paul N. Halvonik:

Thank you, Mr. Chief Justice.

Let me just go to the last point that was raised there on what happens with this interim period if you’ve got to postponement of the period for induction in the services.

That obviously can cut both ways.

If you take a– if you have an opportunity to postpone your induction and you do it during peace time then find yourself called two years later and there’s a war, obviously it’s a less congenial setting for entering into the armed services.

But, this man didn’t set out to postpone anything.

Paul N. Halvonik:

The arraignment he was given was that he wasn’t going to be drafted and said he was relieved from liability.

He wasn’t going to consider whether his physical state was going to change and 231 doesn’t expect, in the next couple of years, to be physically unfit for service anyway, but that didn’t enter into his thinking at all.

The arraignment was you’re never going to be a citizen.

On the other hand, you’ll never have this obligation of citizenship.

Never have the obligation, not that it’s postponed, but that it’s extinguished, that that’s a job for citizens and you’re not going to be one, and he didn’t have any theoretical liability.

He was actually called.

He had to change his life, wrap up his business, go down.

He was all prepared to serve.

And, in doing that action, he demonstrated as much as he was possible to demonstrate that he was willing to assume that obligation.

He demonstrated it to the same extent as those who passed physical.

Now, one other point raised by Mr. Stone was whether the Section 405 (a) Savings Clause is applicable to Section 315 by virtue of the Ceballos decision.

He’s referring to footnote 17 in Ceballos.

Ceballos, as I noted before, was a 1951 case.

The 1952 statute was held applicable to his case.

There’s also a note that says that this– the procedures initiated against him for deportation were saved by the clause and, therefore, even if he’d come afterwards he probably wouldn’t be able to stop the deportation.

It’s a Shomberg case, and that’s what the reference is to.

It’s true, there’s nothing in Section 315 that specifically changes any procedures that would be going against you at the time.

There is no procedural specific exception to the prior law, so that if a procedure had been begun against the petitioner, for example, for deportation, it would be beside the point that he had a new status after 1952 because he couldn’t take advantage of it because the proceedings for deportation would go pursuant to the 1948 law, but what Section 315 does do specifically is change the status.

It doesn’t change procedures, but it changes status, and it makes eligible for citizenship those who were not eligible before.

And, we submit, that the reason Congress did that was because it was not living up to its prior bargain and now it tried to meet its obligation, and it has retroactive language.

It seems the most reasonable thing in the world for Congress to do.

It seems the fairest thing for Congress to do and it’s very hard to explain the language as applied, as Mr. Justice White pointed out, without applying this thing retroactively.

Finally, I again point out, as Mr. Justice White did, the government’s position is totally inconsistent as to those who actually served.

Either 1952 applies retroactively or it doesn’t.

It can’t apply retroactively to people who passed physicals and not apply retroactively to people who flunk physicals.

Thank you.

Warren E. Burger:

Thank you, Mr. Halvonik.

Thank you, Mr. Stone.

The case is submitted.