DOUGLAS, J., dissenting

402 U.S.

given prior to August 23, 1968, then the 1968 amendments were of no effect. Subsequent to the District Court order dismissing petitioners' complaint construction was authorized.

This petition should not be dismissed as improvidently granted. Our "rule of four" allows any four Justices to vote to grant certiorari and set the case for consideration on the merits. The four who now dissent were the only ones to vote to grant the petition. The rule should not be changed to a "rule of five" by actions of the five Justices who originally opposed certiorari. It is improper for them to dismiss the case after oral argument unless one of the four who voted to grant moves so to do, which has not occurred here. As MR. JUSTICE HARLAN has noted it would save time and money if the five would dismiss as improvidently granted immediately after certiorari is granted rather than waiting for briefs and oral argument. Ferguson v. Moore-McCormack Lines, 352 U. S. 521, 560 (separate opinion). AS JUSTICE HARLAN's opinion in Ferguson makes clear, it is the duty of the five opposing certiorari to persuade others at Conference, but, failing that, to vote on the merits of the case. Id., at 562. His advice should be heeded here, lest the integrity of the "rule of four" be impaired.

I therefore dissent from a dismissal of this petition.

The problem is an old and recurring one. Mr. Justice Frankfurter took the position that even the five who voted to deny the petition can, after oral argument, properly dismiss the writ as improvidently granted. United States v. Shannon, 342 U. S. 288, 294– 297. But I thought then-and still think-that such a practice impairs "the integrity of our certiorari jurisdiction." Id., at 298.

"By long practice-announced to the Congress and well-known to this Bar-it takes four votes out of a Court of nine to grant a petition for certiorari. If four can grant and the opposing five dismiss, then the four cannot get a decision of the case on the merits. The integrity of the four-vote rule on certiorari would then be impaired."

Opinion of the Court

ASTRUP v. IMMIGRATION AND NATURALIZATION SERVICE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 840. Argued April 20, 1971-Decided May 24, 1971

Petitioner, an alien, agreed to give up his right to become an Ameri

can citizen in exchange for exemption from military service, pursuant to § 4 (a) of the Selective Service Act of 1948. After that section was repealed, petitioner was subjected to the draft, but was found to be physically unfit. His subsequent petition for naturalization was denied on the ground that he was debarred from citizenship. Section 315 of the Immigration and Nationality Act of 1952 provides that any alien who has applied for exemption from military service on the ground of alienage "and is or was relieved. . . from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States." Held: Under § 315 an alien who requests exemption from military service is to be held to his agreement to relinquish all claims to naturalization only when the Government completely and permanently exempts him from service in the armed forces. Pp. 511-514.

432 F.2d 438, reversed and remanded.

BLACK, J., delivered the opinion for a unanimous Court.

Paul N. Halvonik argued the cause for petitioner. With him on the brief was Marshall W. Krause.

Richard B. Stone argued the cause for respondent. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Charles Gordon.

MR. JUSTICE BLACK delivered the opinion of the Court. The issue in this case is exceedingly simple. By signing SSS Form 130-Application by Alien for Relief from Training and Service in the Armed Forces-the peti

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402 U.S.

tioner, Ib Otto Astrup, a native of Denmark, agreed to give up his right to become an American citizen, and in exchange, the United States, pursuant to § 4 (a) of the Selective Service Act of 1948, 62 Stat. 605, 50 U. S. C. App. § 454 (a) (1946 ed., Supp. III), agreed to give up the right to induct Astrup into the United States armed forces. Congress later repealed the law under which Astrup was exempted from military service, reneging on its part of the bargain with him.' Universal Military Training and Service Act § 4 (a), 65 Stat. 76, 50 U. S. C. App. § 454 (a) (1952 ed.). Thereafter the Selective Service System attempted to draft Astrup and would have succeeded in putting him into uniform but for the fact that he was found to be physically unfit for the draft. Later, when Astrup decided that he would like to become an American citizen, the Government attempted to enforce Astrup's promise even though it was unwilling to keep its own promise. When Astrup petitioned for naturalization, the United States District Court for the Northern District of California denied his petition on the ground that he was debarred from citizenship. The Court of Appeals for the Ninth Circuit affirmed. 432 F.2d 438 (1970). We granted Astrup's petition for certiorari, 400 U. S. 1008 (1971), and now reverse.

1

Astrup was lawfully admitted to the United States for permanent residence on February 20, 1950. On November 14, 1950, he executed SSS Form 130, requesting an exemption from military service on the ground of alienage. At that time the Selective Service Act of 1948, § 4 (a), 62 Stat. 605, 50 U. S. C. App. § 454 (a) (1946 ed., Supp. III), provided such an exemption for any alien. The Universal Military Training and Service Act § 4 (a), 65 Stat. 76, 50 U. S. C. App. § 454 (a) (1952 ed.), which became effective June 19, 1951, amended the earlier provision relating to exemptions for aliens so that the exemption was not available to aliens who were permąnent residents of this country.

In support of the decision below the United States emphasizes the fact that Astrup admitted having read a notice proclaiming that:

"Any citizen of a foreign country . . . shall be relieved from liability for training and service under this title if, prior to his induction into the armed forces, he has made application to be relieved from such liability ; but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States." Form SSS 130, quoting Selective Service Act of 1948, § 4 (a), 62 Stat. 606, 50 U. S. C. App. § 454 (a) (1946 ed., Supp. III).

He further admitted having signed a statement saying, "I understand that I will forever lose my rights to become a citizen of the United States. . . ." Upon the basis of these statements and § 4 (a) of the Selective Service Act of 1948, the United States argues that the case is controlled by our decision in Ceballos v. Shaughnessy, 352 U. S. 599 (1957), in which we enforced similar citizenship debarment provisions in a deportation case arising under the Immigration Act of 1917, § 19 (c), 39 Stat. 889, as amended, 54 Stat. 672, 62 Stat. 1206, 8 U. S. C. § 155 (c) (1946 ed., Supp. V). Ceballos, however, does not govern this case. In Ceballos the Court specifically held that § 315 of the Immigration and Nationality Act of 1952, 66 Stat. 242, 8 U. S. C. § 1426, was inapplicable because of the effective date of the 1952 Act and because § 315 was expressly inapplicable to deportation proceedings under the 1917 Act. 352 U. S., at 606 n. 17.

Astrup, unlike Ceballos, is not involved in a deportation proceeding under the Immigration Act of 1917 and consequently the saving clause of the Immigration and Nationality Act of 1952, § 405, 66 Stat. 280, is inappli

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2

cable. See note following 8 U. S. C. § 1101. Moreover, Astrup petitioned for naturalization under § 316 of the 1952 Act. Therefore, § 315 of the 1952 Act, not § 4 (a) of the Selective Service Act of 1948, determines the effect to be given to Astrup's 1950 application for exemption from military service. Section 315 provides:

"Notwithstanding the provisions of section 405 (b) of this Act, any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States." 66 Stat. 242, 8 U. S. C. § 1426. (Emphasis added.)

This is a two-pronged prerequisite for the loss of eligibility for United States citizenship. The alien must be one who "applies or has applied for exemption or discharge" from military service and "is or was relieved or

2 The United States argues that the saving clause of the 1952 Act is applicable, citing United States v. Menasche, 348 U. S. 528 (1955), and Shomberg v. United States, 348 U. S. 540 (1955). In Menasche the Court held that an alien who had filed a declaration of intention to become an American citizen had a "right in the process of acquisition" preserved by the saving clause which provided: "Nothing contained in [the 1952] Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention. . . ." The Court there found nothing in the 1952 Act that specifically nullified Menasche's declaration. In Shomberg, on the other hand, the Court found in § 318 of the 1952 Act, 66 Stat. 244, 8 U. S. C. § 1429, a specific bar to final determination of a naturalization petition by an alien against whom there was an outstanding deportation proceeding. This case is more like Shomberg than Menasche in that § 315 is addressed to events which may have occurred before the effective date of the 1952 Act and refers specifically to the saving clause as, at least partially, inapplicable.