MR. JUSTICE REED delivered the opinion of the Court.
Review was granted by this Court to determine whether the Attorney General was justified in refusing to suspend deportation of an alien under § 19 (c), as amended, 62 Stat. 1206, of the Immigration Act of 1917,
The allegations of the alien's complaint have not been controverted. Kristensen, a Danish citizen, entered the United States on August 17, 1939, as a temporary visitor for sixty days, to attend the New York World's Fair and visit relatives. The outbreak of World War II prevented his return to Denmark. Successive extensions of stay were applied for and granted, but eventually economic necessity compelled Kristensen to become employed and thereby violate his visitor's status. The process of deportation on the ground of violation of his visitor's status was begun in May 1940, stayed for the duration of World War II, and reopened in 1946. A warrant of deportation was issued in 1941 but was withdrawn on June 10, 1946, to permit the alien to submit an application for suspension of deportation under § 19 (c) of the Immigration Act, supra, which allows such suspension when deportation would result in serious economic detriment to the United States citizen wife of an alien. This relief was refused on the sole ground of Kristensen's asserted ineligibility for citizenship resulting from his having filed with his Selective Service Board on March 30, 1942, after registration, an application for relief from service under § 3 (a) of the Selective Training and Service Act, supra. Eligibility is a statutory prerequisite to the Attorney General's exercise of his discretion to suspend deportation in this case.
Respondent, not then nor thereafter in custody, sought a declaratory judgment that the Attorney General and other immigration and naturalization officials must, in
The District Court dismissed the complaint without opinion, apparently for failure to state a ground for relief. The United States Court of Appeals for the District of Columbia reversed on the ground that, under the facts alleged, Kristensen could not have been subject to the Selective Training and Service Act of 1940 at the time he made his claim for exemption, and therefore the claim was without effect and did not render him ineligible for naturalization. 86 U. S. App. D. C. 48, 179 F.2d 796. The Court of Appeals ruled that the Selective Training and Service Act of 1940, as amended, applied only to aliens "residing in the United States" and "absent any showing of acts or declarations indicating an intention to remain at the time the form was filed, the immigration authorities erroneously construed `residing in the United States' when they held it applicable to an alien in this country under a temporary visitor's visa whose deportation had been ordered and then stayed because of war."
Federal Jurisdiction.—The Government properly presents for our consideration an issue of federal jurisdiction not heretofore raised. The quaere is whether this proceeding involves a justiciable question under Article III of the Constitution.
While such a jurisdictional point may be raised at any time,
Declaratory Judgment.—The United States does not challenge finality for purpose of review.
It was so held in Perkins v. Elg, 307 U.S. 325, where a declaratory judgment action was brought against the
So here a determination that Kristensen is not barred from citizenship by § 3 (a) of the Selective Training and Service Act of 1940 only declares that he has such status as entitles him to consideration under § 19 (c) of the Immigration Act. We think that the present proceeding is proper.
Eligibility for Naturalization.—Under § 3 (a) of the Selective Training and Service Act of 1940, Kristensen was liable for service if "residing" in the United States within the meaning of the Act. Section 3 (a) also provided
If Kristensen was not "residing" at the time of his application for relief, he could not then have had "such liability" for service. If there was no "liability" for service, the disqualification for citizenship under the penalty clause could not arise because the applicant had not made the "application" referred to in the statute as "such application." "Such application" refers to an application to be relieved from "such liability." As there was no "liability" for service, his act in applying for relief from a nonexistent duty could not create the bar against naturalization. By the terms of the statute, that bar only comes into existence when an alien resident liable for service asks to be relieved.
The question, then, is whether Kristensen was "residing," within the meaning of the Selective Training and Service Act of 1940 and regulations issued thereunder, at the time of his application, March 30, 1942. As we conclude that he was not a resident under the Act at the time of his application for relief from military service, we do not decide whether Denmark was a neutral country. Nor need we determine whether the bar against citizenship has been removed by the termination of the Selective Training and Service Act of 1940.
The phrase of § 3 (a), "every other male person residing in the United States," when used as it is, in juxtaposition with "every male citizen,"
The regulations, quoted above, either made an alien in Kristensen's situation a nonresident of the United States for the purpose of the Selective Training and Service Act, between February 7 and May 17, 1942, or
When we consider that § 3 (a) was obviously intended to require military service from all who sought the advantages
The judgment of the Court of Appeals is
MR. JUSTICE BLACK concurs in the judgment of the Court.
MR. JUSTICE DOUGLAS dissents from the holding of the Court that respondent was not "residing" in the United States within the meaning of § 3 (a) of the Act. See the opinion of Judge Frank in Benzian v. Godwin, 168 F.2d 952.
MR. JUSTICE CLARK took no part in the consideration or decision of this case.
MR. JUSTICE JACKSON, concurring.
I concur in the judgment and opinion of the Court. But since it is contrary to an opinion which, as Attorney General, I rendered in 1940, I owe some word of explanation. 39 Op. Atty. Gen. 504. I am entitled to say of that opinion what any discriminating reader must think of it—that it was as foggy as the statute the Attorney General was asked to interpret. It left the difficult borderline questions posed by the Secretary of War unanswered, covering its lack of precision with generalities which, however, gave off overtones of assurance that the Act applied to nearly every alien from a neutral country caught in the United States under almost any circumstances which required him to stay overnight.
The opinion did not at all consider aspects of our diplomatic history, which I now think, and should think I
In times gone by, many United States citizens by naturalization have returned to visit their native lands. There they frequently were held for military duty by governments which refused to recognize a general right of expatriation. The United States consistently has asserted the right of its citizens to be free from seizure for military duty by reason of temporary and lawful presence in foreign lands. Immunities we have asserted for our own citizens we should not deny to those of other friendly nations. Nor should we construe our legislation to penalize or prejudice such aliens for asserting a right we have consistently asserted as a matter of national policy in dealing with other nations. Of course, if an alien is not a mere sojourner but acquires residence here in any permanent sense, he submits himself to our law and assumes the obligations of a resident toward this country.
The language of the Selective Service Act can be interpreted consistently with this history of our international contentions. I think the decision of the Court today does so. Failure of the Attorney General's opinion to consider the matter in this light is difficult to explain in view of the fact that he personally had urged this history upon this Court in arguing Perkins v. Elg, 307 U.S. 325. Its details may be found in the briefs and their cited sources. It would be charitable to assume that neither the nominal addressee nor the nominal author of the opinion read it. That, I do not doubt, explains Mr. Stimson's acceptance of an answer so inadequate to his questions. But no such confession and avoidance can excuse the then Attorney General.
Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, recanting views he
"Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States . . . shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States . . . ."
"If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States."
"§ 611.13 When a nondeclarant alien is not residing in the United States. (a) A male alien who is now in or hereafter enters the United States who has not declared his intention to become a citizen of the United States is not `a male person residing in the United States' within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended:
"(6) If he has entered or hereafter enters the United States in a manner prescribed by its laws and does not remain in the United States after May 16, 1942, or for more than 3 months following the date of his entry, whichever is the later.
"(b) When a male alien who has not declared his intention to become a citizen of the United States has entered or hereafter enters the United States in a manner prescribed by its laws and remains in the United States after May 16, 1942, or for more than 3 months following the date of his entry, whichever is the later, he is `a male person residing in the United States' within the meaning of section 2 and section 3 of the Selective Training and Service Act of 1940, as amended, unless he has filed an Alien's Application for Determination of Residence (Form 302) in the manner provided in § 611.21 and such application is either (1) pending or (2) has resulted in a determination that he is not `a male person residing in the United States' within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended, in either of which events he shall not be considered as `a male person residing in the United States' within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended, during the period when such application is pending or during the period covered by the Alien's Certificate of Nonresidence (Form 303) issued to him as a result of the determination that he is not `a male person residing in the United States' within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended. (54 Stat. 885; 50 U. S. C., Sup. 301-318, inclusive; E. O. No. 8545, 5 F. R. 3779)"