The opinion of the court was delivered by: PRATT
Lennox Watson, a native of Guyana, petitions this court for naturalization as a United States citizen. He does so on the basis of active duty service in this country's armed forces during the Vietnam conflict. The Immigration and Naturalization Service opposes his petition on the ground that his honorable discharge was on "account of alienage," and does not satisfy the statutory provision on which he now relies. For the reasons stated below, his petition is granted.
Lennox Watson was born in Guyana in 1949, entered the United States on a student visa in 1969, and in 1976, while still validly within this country, he enlisted in the D.C. National Guard. In October of that year, he reported to the United States Army post at Fort Leonard Wood, Missouri, for four months of training, making him an active duty member of the United States Army. In January, 1977, he completed his training and reported back to the 104th Maintenance Company of the D.C. National Guard, an Army reserve unit. He continued to serve in his reserve capacity until January, 1978, when he was honorably discharged for his failure to produce an I-151 alien identification card, as required by National Guard regulations. Such cards are only issued to permanent resident aliens, which Watson was not. His service record, despite his discharge, was entirely satisfactory.
Although it is unclear whether at the time Watson enlisted he knew of § 329(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1440(a) (1976 ed.), he certainly knew of it soon after, for promptly on his return from Fort Leonard Wood, he filed his petition for naturalization on the basis of that provision. The Immigration and Naturalization Service (INS) held a preliminary examination in the case in June, 1977, but took no action on his petition until ordered to do so by this court in February, 1980. In April, the INS decided to oppose the petition, arguing that Watson had not met the requirements of § 329(a).
Section 329(a) of the Immigration and Naturalization Act of 1952 provides in relevant part that:
Any person who, while an alien ... has served honorably in active-duty status in the military ... forces of the United States during (the) period beginning February 28, 1961, and ending on a date designated by the President by Executive Order (October 15, 1978) as the date of termination of the Vietnam hostilities ... and, who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section if at the time of his enlistment ... such person shall have been in the United States ... whether or not he has been lawfully admitted to the United States for permanent residence .... Provided, however, That no person who is or has been separated from such service on account of alienage ... shall be regarded as having served honorably or having been separated under honorable conditions for the purposes of this section.
8 U.S.C. § 1440(a) (1976 ed.) (emphasis supplied).
The legislative history supports Watson's contention. Congress first enacted this language in 1948, Act of June 1, 1948, ch. 360, § 1, 62 Stat. 282 (1948), as an amendment to the Nationality Act of 1940. Ch. 876, 54 Stat. 1137 (1940). The purpose of the amendment was to "make it possible for aliens who have served, or are serving honorably, in the armed forces of the United States during World War I or World War II, to acquire United States citizenship through naturalization without the necessity of going through the regular detailed process required of nonservice people." Amending the Nationality Act of 1940, H.R.Rep. No. 1408, 80th Cong., 2d Sess. 1 (1948). The 1948 Amendment permanently eased requirements facing alien veterans and active duty personnel who had not taken advantage of such naturalization opportunities under statutes that had expired. Congress reenacted the language as § 329(a) of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1440(a) (1976 ed.), and permanently extended its coverage to Korean War era personnel in 1961, Act of Sept. 26, 1961, Pub.L. No. 87-301, §§ 7, 8, 75 Stat. 653-54 (1961), and to Vietnam era personnel in 1968. Act of Oct. 24, 1968, Pub.L. No. 90-633, 82 Stat. 1343-44 (1968).
The language "separated from the service on account of alienage" was evidently added to deal with a special situation created by the draft laws in force at the time. Under the statute as it stood in World War II, aliens within the United States were subject to the draft unless they declared their intention not to seek United States citizenship. This declaration permanently barred them from seeking naturalization. See, e.g., Benzian v. Godwin, 168 F.2d 952 (2d Cir.), cert. denied, 335 U.S. 886, 69 S. Ct. 235, 93 L. Ed. 425 (1948). Under some circumstances, aliens already in the United States armed forces could petition for discharge on account of alienage. Discharge on these grounds permanently disqualified the petitioning alien from United States citizenship. 8 U.S.C. § 1426(a) (1976 ed.).
Congress clearly intended the language "on account of alienage" to bar naturalization under § 329(a) to aliens who successfully petitioned for discharge. Congress also made clear that its intention was not to bar naturalization of aliens honorably discharged for the convenience of the government. Congress did so in 1953, by amending the Immigration and Naturalization Act of 1952 to extend easier naturalization to aliens serving in the armed forces during the Korean War. Act of June 30, 1953, ch. 162, 67 Stat. 108 (1953).
The 1953 amendments contained the same naturalization disqualifications as § 329(a) of the 1952 Act. First, those aliens discharged "under other than honorable conditions" could not be naturalized; second, conscientious objectors who refused to perform any duty or refused to wear the uniform were forbidden to be naturalized; and third, those aliens discharged "pursuant to an application for discharge made by him on the ground that he is an alien" were barred from naturalization. Act of June 30, 1953, ch. 162, § 3, 67 Stat. 110 (1953). These disqualifications track those in § ...