United States of America, Appellant, v. Gerhard Willi August Lacher, Appellee, 299 F.2d 919 (9th Cir. 1962)Annotate this Case
C. Elmer Collett, Cecil F. Poole, U. S. Attys., James F. Hewitt, Asst. U. S. Atty., San Francisco, Cal., for appellant.
Jackson & Hertogs, Joseph S. Hertogs, San Francisco, Cal., for appellee.
Before ORR, BROWNING and DUNIWAY, Circuit Judges.
One Lacher, a native and citizen of Germany, was admitted to the United States for permanent residence on February 6, 1953. He registered under the Selective Service Act and immediately thereafter executed a Form C-294 entitled, "Application by Alien for Exemption from Military Service." On March 3, 1954, he was classified IV-C (Exempt Treaty Alien) pursuant to a treaty then in effect between his country and the United States. On October 5, 1954, following the abrogation of the said treaty, Lacher was reclassified I-A and was subsequently inducted into the United States Army on May 28, 1956.
On June 28, 1960, appellee filed a petition for naturalization under the general provisions of the Immigration and Nationality Act, 8 U.S.C.A. § 1427. The Immigration and Naturalization Examiner recommended denial of the said petition on the ground that appellee had been relieved from military service within the meaning of § 315 of the Immigration and Nationality Act, 8 U.S.C.A. § 1426. The district court overruled said recommendation and granted citizenship to Lacher, citing as authority for its decision the cases of In re Rego's Petition, 289 F.2d 174 (CA3, 1961), Cannon v. United States, 288 F.2d 269 (CA2, 1961), and United States v. Hoellger, 273 F.2d 760 (CA2, 1960). Said cases are factually almost identical with the instant case.
The government takes the position that said cases were incorrectly decided and urges this court to disregard them, and reverse the judgment of the trial court.
We agree with the trial court that the petition of Lacher should be granted and rely, as did the trial court, on In re Rego's Petition, 289 F.2d 174 (CA3, 1961), Cannon v. United States, 288 F.2d 269 (CA2, 1961), and United States v. Hoellger, 273 F.2d 760 (CA2, 1960).