March 23, 1992, Entered
COUNSEL: [**1] Counsel for Immigration and Naturalization: John F.
Cook, Esquire, Immigration and Naturalization, 245 Wagner Place, Suite 250,
Memphis, TN 38103.
Counsel for Petitioner: James Patrick Chesser, Esquire, 1614 16th
Avenue, South Nashville, TN 37212.
JUDGES: Higgins
OPINIONBY: THOMAS A. HIGGINS
OPINION: [*993]
MEMORANDUM
This
matter is before the Court on a petition for naturalization filed by Mahmoud
Kassas. Also before the Court are the findings of fact, conclusions of law and
recommendations of the designated naturalization examiner. A hearing was held
before the Court at which the petitioner testified. The immigration and
Naturalization Service recommends that the petition for naturalization be
denied.
The
petitioner is a native citizen of Syria, who was lawfully admitted for
permanent residence in the United States as of March 27, 1987. The petitioner
is an adherent of the Islamic religious faith. The Service objects to the
petitioner’s naturalization on the grounds that: (1) the petitioner
has failed to establish that he is eligible to take the oath of allegiance
required by section 337(a) of the Immigration and Nationality Act (8 U.S.C.
§ 1448(a)); and (2) the petitioner has failed to establish that he is
attached [**2] to the principles of the Constitution of the United States
and is well disposed to the good order and happiness of the United States as
required by Section 319(a) of the Immigration and Nationality Act (8 U.S.C.
§ 1427(a)). The specific issue is whether the petitioner can and will
swear, without any mental reservation, by taking the Oath of Renunciation and
Allegiance, to “bear arms on behalf of the United States when required
by the law.” 8 U.S.C. § 1448(a)(5)(A).
According
to the record, at his preliminary investigation by the Service, the petitioner
testified that he would be willing to take the full oath of allegiance to the
United States; however he expressed reservations about bearing arms on behalf
of the United States against persons of the Islamic faith or a predominately
Islamic country.
The
petitioner was questioned in more detail on this matter at his preliminary
examination which was held immediately thereafter. It was the petitioner’s
belief that if he killed a member of the Islamic faith or if he in turn were
killed by a member of the Islamic faith, he would be condemned to hell. The
only exception to this would be if an Islamic country attacked or invaded the
United [**3] States. Petitioner was unclear as to what exactly constituted
an “Islamic Country.” The petitioner was clear that he would
be willing to bear arms against India or China, but not Iran. Additionally, at
the hearing before [*994] the Court, petitioner testified that there were no
conditions under which he would bear arms, except as allowed by Islamic
law. n1
- - - - -
- - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 It
appears to the Court that the petitioner has switched his position from that
advanced before the examiner to the effect that he could bear arms on behalf of
the United States except as to Islamic nations, and that advanced before the
Court to the effect that he is precluded by his religion from killing anyone
except as provided by Islamic law
and is willing to perform noncombatant service.
- - - - -
- - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Section
316(a) of the Act, 8 U.S.C. § 1427(a), provides that no person shall
be naturalized unless he is “attached to the principles of the Constitution
of the United States, and well disposed to the good order and happiness of the
United States.” Congress has recognized that some [**4] people have deeply
held religious beliefs which prohibit them from bearing arms under any
circumstances, and thus has provided that where a person is opposed to bearing
arms as a result of his religious training and beliefs, he may nevertheless be
naturalized upon the taking of a modified oath. 8 U.S.C. § 1448(a).
The
legislative history of the immigration and Nationality Act of 1952 reveals that
when Congress recognized the exemption from the military service for
conscientious objectors, it intended to place the naturalized citizen on equal
footing with the native born citizen. H.R.Rep. No. 1365, 82nd Cong., 2nd Sess.
82 (1952), reprinted in U.S.C.C.A.N. 1653, 1741. The House and Senate conferees
also determined that the eligibility for a modified oath would be determined in
accordance with the standards used under the Selective Service Act of 1948. Id. at 1756.
The
record indicates that petitioner’s reasons opposing the bearing of
arms is a result of his religious training and beliefs. The Service argues that
petitioner is not eligible for an exemption from swearing to section (5)(A) of
the Oath, because he is opposed only to some, but not all wars. In Gillette
v. United States, 401 U.S.
437, 443, 91 S. Ct. 828, 832, 28 L.Ed.2d. 168, 176 (1971), [**5] the Supreme
Court held that a similarly based exemption from military service is only
available where the individual is opposed to “participation in war in
any form.”
Considering
this legislative background and in view of the identical wording in both the
selective service and naturalization exemptions, the Service asserts that the
petitioner does not qualify for a modified oath. The petitioner, by reserving
his right to make future decisions regarding his participation in the armed
forces of the United States, has demonstrated that he cannot take this
obligation, the oath of allegiance, without mental reservations. Furthermore,
the Service argues the petitioner has failed to establish that he is attached
to the principles of the Constitution as required by section 319(a) of the Act,
8 U.S.C. § 1427(a). The petitioner, by reserving unto himself when he
will or will not serve in the armed forces, is, in effect, stating when he will
or will not obey the law.
The Court
has fully considered the record and the testimony of the petitioner. The
petitioner’s testimony at the preliminary investigation, and at the
preliminary examination, along with his testimony before the Court, indicates
[**6] the petitioner
is only opposed to some, but not all war.
The Court finds that the petition of Mahmoud Kassas for
naturalization should be denied.
An appropriate order will be entered.
Thomas A. Higgins
United States District Judge
March 23, 1992
EDITOR’s NOTE: The following court-provided text does not
appear at this cite in 788 F. Supp. 993.
ORDER - No. 3-91-1036
In accordance with the memorandum contemporaneously entered, the
petition of Mahmoud Kassas for naturalization is denied.
It is so ORDERED.
Thomas A. Higgins
United States District Judge
March 23, 1992