CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton, Harlan, Brennan
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This declaratory judgment action was brought by petitioner, in March 1955 in the District Court for the Southern District of New York, to obtain a judgment against the District Director of Immigration declaring that petitioner was eligible for suspension of deportation and restraining the Director from taking him into custody for deportation.*fn1 The District Court dismissed the complaint, without reaching the merits, upon the procedural ground "that the Attorney General [of the United States] and/or the Commissioner [of Immigration] are indispensable parties to the instant action."*fn2 The Court of Appeals for the Second Circuit affirmed, not only for the reason given by the District Court, but also upon the ground that, because the petitioner is "an alien who 'has made application' to be relieved from military service," he is debarred from citizenship as a matter of law and "hence is not eligible for an order suspending deportation."*fn3 This Court granted certiorari.*fn4
Deportation proceedings had been instituted because petitioner had entered the United States on April 2, 1951, on a temporary visa and remained beyond the period for
which he was admitted. Petitioner was found deportable but was given permission to depart voluntarily, in lieu of deportation. Petitioner's timely application for suspension of deportation under § 19 (c) of the Immigration Act of 1917, as amended,*fn5 was denied by the Immigration and Naturalization Service because it found that petitioner did not satisfy a prerequisite for the application of that section -- eligibility for naturalization. His ineligibility was based on a finding that in August 1943 petitioner, as a citizen and subject of Colombia, then a World War II neutral, applied under § 3 (a) of the Selective Training and Service Act of 1940, as amended, for relief from service with the United States armed forces. Section 3 (a) provided that "any person who makes such application shall thereafter be debarred from becoming a citizen of the United States."*fn6
The petitioner was admitted to the United States for permanent residence in February 1942, during World War II. On June 16, 1943, he executed Selective Service System Form DSS 304, "Alien's Personal History and Statement," which gave the alien a choice of inserting "do" or "do not" in the statement: "I . . . . . object to service in the land or naval forces of the United States." The petitioner inserted the word "do." The form contained this notice:
". . . If you are a citizen or subject of a neutral country, and you do not wish to serve in the land or naval forces of the United States, you may apply to your local board for Application by Alien for Relief from Military Service (Form 301) which, when executed by you and filed with the local board, will relieve you from the obligation to serve in the land or naval forces of the United States, but will also debar you from thereafter becoming a citizen of the United States."*fn7
On August 26, 1943, the petitioner executed Form DSS 301, "Application by Alien for Relief from Military Service." The form contained the following paragraph:
"I do hereby make application to be relieved from liability for training and service in the land or naval forces of the United States, under the Selective Training and Service Act of 1940, as amended, in accordance with the act of Congress, approved December 20, 1941. I understand ...