ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Petition No. 239626
Before Adams and Sloviter, Circuit Judges, and Knox, District Judge.*fn*
This case is before us on an appeal by the government from an order of the District Court for the Eastern District of Pennsylvania granting appellee's petition for naturalization under Section 336 of the Immigration and Nationality Act, 8 U.S.C. § 1447. The facts are fully set forth in the opinion of the district court.
The admitted facts are that Gino Serano, the appellee, was born in Italy on April 22, 1948, and entered this country as a permanent resident on September 2, 1960. In 1966 Serano was classified 1-A, and in April, 1968, he received an order to report for induction on May 3, 1968. He was found medically qualified for induction, but on April 29, 1968, made a request as a permanent resident alien for relief from training and service because of a treaty with Italy (Treaty of Friendship, Commerce and Navigation between the United States and Italy, 63 Stat. 2255, 2272-74.)*fn1
After executing the request for exemption from service,*fn2 Serano received a letter from the Executive Secretary of his local draft board on May 10, 1968 which stated "This is to advise you that your order to report for induction on May 3, 1968 which was issued by this local board on April 19, 1968, has been cancelled."
There is a further letter in the file dated May 9, 1968, to the Chairman of Serano's Local Board 130, signed by Hugh C. Snodgrass, Lieutenant Colonel, AGC Manpower Division, stating, inter alia, that the alien status had been recognized by the Director, and instructing the local board to cancel the order to report for induction and to postpone issuance of any order to report for induction until further notice. It also appears that the Board forwarded to Serano a document entitled "Postponement of Induction," which stated:
Your induction into the armed forces is postponed INDEFINITELY.
You will be advised by the local board as to the date you will present yourself to this board for delivery for induction after termination of this postponement.
This postponement shall terminate at any time the reasons therefor shall cease to exist. If the reasons for this postponement should cease to exist, it is your duty to report that fact immediately to this local board.
Of course, the reason for the postponement, namely, the existence of the treaty between the United States and Italy never did terminate. Serano continued, however, classified as I-A until February 18, 1972, when he was reclassified as I-H (not currently subject to processing for induction).
There were no further attempts to have Serano report for induction. He was never classified IV-C*fn3 which, at least since 1971, would have been the technically correct classification for a person permanently exempt from service on the basis of alienage.
Serano petitioned for naturalization on February 1, 1974, and the examiner entered a report and order on March 30, 1979. In subparagraph (f) of his report, the examiner concluded that the petitioner was relieved from the obligation of military service on the ground that he was a treaty alien and ...