Metropolitan News-Enterprise


Monday, May 14, 2007


Page 1


Court: Alien Who Leaves Military Service Eligible for Citizenship


By TINA BAY, Staff Writer


An alien who voluntarily enlists in the U.S. Navy and later obtains an honorable discharge on the basis of alienage is not barred from applying for citizenship, the Ninth U.S. Circuit Court of Appeals held Friday.

Reversing a ruling by U.S. District Judge Larry A. Burns of the Southern District of California, the court held that the Immigration and Naturalization Service should not have denied former U.S. Navy serviceman Paulo E. Gallarde’s application for American citizenship based on Sec. 315 of the Immigration and Nationality Act.

Sec. 315 renders permanently ineligible for U.S. citizenship any alien serving in the country’s military who applies for and obtains exemption or discharge from “training or service in the Armed Forces” on the ground that he is an alien. The statute refers to an alien’s “liability for training or service” but does not specify whether the training or service is compulsory or voluntary, or both.

Gallarde, a then-32-year-old Philippine national, voluntarily enlisted in the U.S. Navy in 1991, eight months after immigrating to the U.S. as a lawful permanent resident.  He incurred a four-year active duty service obligation, which he began fulfilling in May 1992.

Injured on Duty

In March 1993, Gallarde injured his back while on duty.  Through discussions with a corpsman, he allegedly learned that he would not be able to obtain a medical discharge based on his back injury, but could seek a discharge on the ground that he was an alien.

Two years later he requested an early separation from the Navy, claiming his prior injury had left him enduring pain daily and experiencing numbness in his left leg. His request was treated by his command as a request for early separation on the basis of alienage, although the serviceman had not so indicated.

Gallarde’s commanding officer, exercising his discretion under applicable regulations, denied his request because the Navy was experiencing a shortage of sailors in his occupational specialty.

Two months later, Gallarde submitted a second request to be discharged, this time specifying he sought “to be separated fromm [sic] the United States Navy on the basis of being an alien.”  Based on its interpretation of Sec. 315, Gallarde’s command told him any alien discharged from services in the U.S. Armed Forces on the ground that he is an alien is permanently ineligible to become a citizen of the country.

The Navy honorably discharged Gallarde on the basis of alienage in October 1995, six months before his service obligation was set to end.

Just over a year later, he filed an application for naturalization with the INS, which the agency denied, saying he was barred from citizenship under Sec. 315.

Status of Service

Petitioning the district court for review, Gallarde argued Sec. 315 pertained only to aliens who request and receive relief from conscription, and not to those who request release from voluntarily military service.

Instead of determining whether the statute’s reference to “training or service” included voluntary military service, Burns denied Gallarde’s request based on the meaning of “liability.”

Gallarde was liable for military service under contract principles because he had incurred a service obligation pursuant to an enlistment contract, Burns reasoned. Because he was discharged from service for which he was contractually liable, he was precluded from citizenship under Sec. 315, the judge concluded.

On review, the Ninth Circuit focused on the definition of “training or service in the Armed Forces” in Sec. 315.

In light of other provisions in the INA, the court concluded Sec. 315’s bar applied only to aliens exempted or discharged from compulsory training or service.

Writing for the unanimous panel, Judge Carlos T. Bea noted:

“We cannot ignore the fact that the citizenship bar now contained in §315 was historically part of the selective service statutes and barred from citizenship only aliens exempted or discharged from liability for the draft on the basis of alienage.”

Congressional Intent

Although the INA’s passage in 1952 separated an alien’s right to avoid liability for the draft and his penalty for exercising that right—leaving the former in another act—nothing in the statutes indicates Congressional intent to expand the scope of Sec. 315 to voluntary service, Bea wrote.

He rejected the government’s view that limiting Sec. 315 to compulsory service would allow voluntary servicemen who are aliens to terminate their enlistment contracts unilaterally without consequence.

He explained:

“Aliens do not possess a right to a discharge, based on alienage, from voluntary military service. Rather, certain aliens may apply for a discretionary administrative discharge on the basis of alienage.”

Contrary to the government’s fears, he concluded, “an alien’s request for an administrative discharge on the basis of alienage, like the request of a citizen applying for a hardship or pregnancy discharge, may be denied.”

Judge A. Wallace Tashima and the Eighth Circuit’s Judge Myron H. Bright, sitting by designation, concurred in the opinion.

Gallarde’s appellate counsel, Howard Hom of San Diego, told the MetNews he was pleased the court agreed with his client’s position.

“He has essentially been held hostage in the U.S. unable to travel even though he served honorably for three and a half years in the military,” Hom noted, explaining his client remained in the U.S. legally but would have been inadmissible upon return had he chosen to leave.

Gallarde served this country willingly, Hom added.

San Diego-based Assistant U.S. Attorney Samuel W. Bettwy, who argued for the government on appeal, could not be reached for comment.

The case is Gallarde v. Immigration and Naturalization Service, 04-56353.


Copyright 2007, Metropolitan News Company