1 E.g., Convention of Friendship, Reciprocal Establishments, Commerce, etc. with Swiss Confederation, November 25, 1850, effective November 9, 1855, 11 Stat. 587, 589, art II:

“The citizens of one of the two countries, residing or established in the other, shall be free from personal military service; but they shall be liable to the pecuniary or material contributions which may be required, by way of compensation, from citizens of the country where they reside, who are exempt from the said service.”

Similar provisions are found in treaties with Argentina, China, Costa Rica, Ireland, Italy, Paraguay, Spain, Thailand and Yugoslavia.

2 E.g., Treaty of Friendship, Commerce and Consular Rights with Austria, June 19, 1928, effective May 28, 1931, 47 Stat. 1876, 1880, art. VI:

“In the event of war between either High Contracting Party and a third State, such Party may draft for compulsory military service nationals of the other having a permanent residence within its territories and who have formally, according to its laws, declared an intention to adopt its nationality by naturalization, unless such individuals depart from the territories of said belligerent Party within sixty days after a declaration of war.”

Similar provisions are found in treaties with Estonia, Honduras, Latvia, Liberia and Norway.

3 In this procedure the treaty country submitted the request for exemption to the Department of State for approval. B.O. 9992, August 28, 1948, see. 622.18(b), 13 F.R. 5033, 5035; 1 Gordon & Rosenfleld, Immigration Law and Procedure, see. 2.49a (1967 ed.).

4 A summary in the House Committee Report of the pre-1951 law as it applied to aliens onrjts mention of the treaties. H. Rept. 271, 82d Cong., 1st sess., 17 (1951). The Conference Report states a general intent to treat resident aliens in the same way as citizens, but makes no reference to the treaties. H. Rept. 535, 82d Cong., 1st sess., 19 (1951).

It has been suggested that the amendment to section 6(a) was designed to eliminate the exemption for treaty aliens since they were the only category that had been specified by the President which included resident aliens. However, other categories which included resident aliens had been exempted under section 6(a) in the 1948 regulations. Thus, the exemptions for certain employees of foreign governments and of international organizations, and for members of their families, were available to resident aliens who had not declared an intention to become citizens. Following the 1951 amendment of the act, the regulations were amended to limit these exemptions to aliens who had not been admitted to the United States for permanent residence. Compare B.O. 9992, sec. 611.11(a), 13 F.R. 5033 (1948), with E.O. 10292, sec. 1611.2(b), 16 F.R. 9843, 9846.

5 * * any alien who applies or has applied for exemption or discharge from training or service * * * on the ground that he is an alien, ana is or was relieved or discharged from such training or seryiee on such ground, shall be permanently ineligible to become a citizen of the United States.

6 In re naturalization, of Healy, supra, 183 F. Supp. at 652; 1 Gordon & Rosenfleld, Immigration Law and Procedure, sec. 2.49a (1967 ed.).

7 In the immigration and naturalization cases, resident aliens who had received exemptions from military service sought to avoid the consequences of the exemption—ineligibility for citizenship and exclusion from the UnitedStates (8 U.S.C. 1182(a) (22), 1426)—by claiming that the exemptions were void since there had been no legal basis for granting them after 1951. The Government conceded that the exemption was not authorized but argued successfully that the de facto granting of relief acted as a bar under section 315 of the Immigration and Nationality Act. See note 5, supra.

8 United States v. Rumsa, 212 F. 2d 927 (C.A. 7, 1954), cert, denied, 348 U.S. 838 (1954) ; United States v. Gredzens, 125 F. Snpp. 867 (D. Minn. 1954) ; United States em rel. Rosio v. Shaugnessv, 134 F. Supp. 217 (S.D.N.Y. 1954).

9 Schenkel v. Landon, 133 F. Supp. 305 (D. Mass. 1955).

10 Ungo v. Beechie, 311 F. 2d 905 (C.A. 9, 1963), cert, denied, 373 U.S. 911 (1963), said the treaties had not been superseded. But see Petition for Sacralization, of Rego, 289 F. 2d 174, 177 (C.A. 3, 1961i), reversing 185 F. Supp. 16 (D.N.J. 1960).

11 Brief in opposition to petition for certiorari, Ungo v. Beechie, supra, October Term, 1962, No. 951, pp. 7-10.

12 At about this time, the Selective Service System instituted an informal practice permitting a resident treaty alien to be relieved from induction. This practice has continued to date. Under the current procedure an alien applying for exemption is required to sign a form in which he acknowledges that “I have read and understand the provisions of” section 315 of the Immigration and Nationality Act. Compare p. 4, supra.

Such relief from service has not been extended, however, to treaty aliens who are physicians. Alien medical specialists are liable to the doctor draft, under a 1967 amendment to the selective service law, even if they come to this country after attaining the age of 26 (81 Stat. 102). The Director of Selective Service acknowledges that if treaty aliens generally are entitled to be exempted from military service as a matter of law, then those who are medical specialists likewise are entitled to be exempted. I agree that the legal position of these medical specialists is the same, for the purposes of exemption and consequent bar to citizenship discussed in this opinion, as that of younger resident treaty aliens affected by the military draft.

13 “The Department of State formerly expressed the view that see. 6(a) prohibited the exemption of resident aliens pursuant to treaty, while seeking legislation to change this result. E.g., letter to the Vice President transmitting proposed legislation, March 15, 1963. This does not, of course, preclude a later change in interpretation. United States v. Philadelphia National Bank, 374 U.S. 321, 348-49 (1963).

14 United States v. Bumsa, 212 F.2d 927, 932 (C.A. 7, 1954), cert, denied, 348 U.S. 838 (1954) ; Petition for Naturalization of Rego, 289 F.2d 174, 177 (C.A. 3, 1961) ; United States v. Gredsens, 125 F. Supp. 867 (D. Minn. 1954).

15 The recent decision of the Ninth Circuit in Lapenieks v. I.dN.S., 389 F.2d 343 (C.A. 9, 1968) raises different issues. In that case a resident treaty alien had received an exemption in 1952 pursuant to a treaty, and in 1953 was required to sign an acknowledgment that lie would thus be barred from citizenship. When the regulations were amended In 1956 to eliminate the exemption for treaty aliens (see p. 4, supra) he was reclassified and summoned to service, but was not inducted because he was found physically unfit. The only question presented on these facts was whether be was “relieved” from military service within the meaning of section 315 of the Immigration and Nationality Act (see note 5, supra.so that he was barred from citizenship. The court did not discuss the effect of the 1951 amendments to the selective service law on the treaties.

16 The treaty is no longer in effect, having been abrogated in 1958.

17 Imposition of such a condition on the grant of relief from service is not inconsistent with our treaty obligations. Moser v. United States, supra.

The effect of sec. 315 has been held to be premised on “a knowing and intentional waiver” of the right to citizenship by an alien who procures exemption from military service. Bachmann v. United States, 327 E\2d 415 (C.A. 9, 1964) ; Matter of B.E., 9 1. & N. Dec. 740 (A.G. 1962). In this connection, I understand the Department of State has suggested that treaty aliens could make application for relief through their respective embassies to the Department of State, which would forward such applications to the Selective Service System. Such a procedure appears to be an appropriate technique for determining eligibility to invoke treaty rights. In any such procedure, however, there must be a definite application for relief, signed by the alien, in which he acknowledges that he understands the consequence of a permanent citizenship bar under section 315. (The procedure in this regard, reflecting the requirements of that section of the Immigration and Nationality Act, is to be contrasted with the procedure utilized with respect to treaty aliens prior to enactment of that act in 1952. See note 12, supra.

18 Immigration and Nationality Act, sec. 212(a) (22), 66 Stat. 184, 8 U.S.C. 1182(a) (22); the possibility of relief from such exclusion is limited, sec. 212 (c) of the act, 8 U.S.C. 1182 (c).