FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULO E. GALLARDE, 

Plaintiff-Appellant, No. 04-56353

v. D.C. No.  CV-01-01011-LAB IMMIGRATION AND NATURALIZATION

SERVICE, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

October 26, 2006—Pasadena, California

Filed May 11, 2007

Before: Myron H. Bright,* A. Wallace Tashima, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

*The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation. 

5517
COUNSEL

Howard Hom, Esq., and Gail A. Dulay, Esq., San Diego, California, for plaintiff-appellant Paulo E. Gallarde. 

Samuel W. Bettwy, Assistant United States Attorney, San

Diego, California, for the defendant-appellee the United

States Department of Homeland Security. 

OPINION

BEA, Circuit Judge: 

For nearly ninety years it has been clearly established that

aliens who seek exemption from compulsory military service

—the draft—based on alienage will be forever barred from

becoming United States citizens. Here, we are asked to decide

whether this bar to citizenship applies to an alien who voluntarily enlisted in the United States Navy, sought discharge

short of completing his enlistment term on the basis of alienage, and was honorably discharged. We hold that the bar does

not apply.

Facts

On February 27, 1991, while ground combat operations

during Operation Desert Storm were underway in Kuwait and

Iraq, Paulo E. Gallarde (“Gallarde”), a 32 year-old Philippine

national, immigrated to the United States as a lawful perma5520 GALLARDE v. INS
nent resident alien. Eight months later, Gallarde voluntarily

enlisted in the United States Navy, thereby incurring a fouryear active duty service obligation. After serving seven

months in the United States Navy Reserve, Gallarde entered

active duty on May 5, 1992. 

In March 1993, Gallarde injured his back while on duty. As

a result of that injury, Gallarde claims to have endured pain

on a daily basis and to have begun experiencing numbness in

his left leg. When Gallarde spoke with a corpsman about the

possibility of being medically discharged, he was advised that

such a request would be denied. Gallarde, however, was

advised that he could seek a discharge on the ground that he

was an alien. 

On March 17, 1995, Gallarde requested an early separation

from the United States Navy. Although Gallarde did not specify a basis for his request, Gallarde’s command treated his

request as a request for early separation on the basis of alienage. On March 19, 1995, Gallarde’s commanding officer

exercised the discretion given him by applicable regulations

and denied Gallarde’s request because the Navy was experiencing a shortage of sailors in Gallarde’s occupational specialty. 

On May 28, 1995, Gallarde again requested early separation, indicating that he was requesting “to be separated fromm

[sic] the United States Navy on the basis of being an alien

. . . .” On June 7, 1995, Gallarde was informed1 by his command “that any alien [who] applies for discharge from service

in the Armed Forces of the United States on the grounds that

the member is an alien, and is discharged from such service

on such grounds, shall be permanently ineligible to become a

citizen of the United States, except if member is exercising

treaty rights and served in the armed forces of the country in

which the member is a citizen . . . .” On October 27, 1995,

1

Incorrectly, as it turns out. 

GALLARDE v. INS 5521
approximately six months short of completing his voluntary

military service obligation, Gallarde was honorably discharged from the United States Navy on the basis of alienage.

In January 1997, Gallarde filed an Application for Naturalization, which the then Immigration and Naturalization Service (“INS”) denied. The INS ruled he was barred from

becoming a citizen under Section 315 of the Immigration and

Nationality Act of 1952 (“§ 315”). See The Immigration and

Nationality Act, Pub. L. No. 414, § 315, 66 Stat. 162, 242

(1952) (codified at 8 U.S.C. § 1426). 

Gallarde then filed this action to review the denial of his

Application for Naturalization. Gallarde argued that § 315

does not bar him from becoming a citizen because he was not

“liable for service” within the meaning of § 315. Specifically,

Gallarde argued § 315 bars only aliens who request and

receive exemption, relief, or discharge from liability for the

draft, not those who request early release from voluntary military service from becoming a citizen. 

The district court denied Gallarde’s petition, holding that

§ 315 barred him from becoming a citizen. The district court

reached this conclusion without first determining whether

“training or service in the Armed Forces,” as used in § 315,

and “military training or military service,” as used in 8 C.F.R.

§ 315.1, include voluntary military training or service. Rather,

relying on the definition of “liability” in the 2004 edition of

Black’s Law Dictionary, the district court determined that “liability,” as used in 8 C.F.R. § 315.2(b)(1), includes contractual liability. Thus, the district court held that § 315 barred

Gallarde from becoming a United States citizen because Gallarde was separated on the basis of alienage from voluntary

military service for which he had contracted pursuant to an

enlistment contract.

5522 GALLARDE v. INS
Standard of Review

We review de novo a district court’s interpretation and construction of a federal statute. See United States v. HernandezVermudez, 356 F.3d 1011, 1013 (9th Cir. 2004).

Discussion

Gallarde raises the same argument on appeal that he raised

below, i.e., that § 315’s citizenship bar applies only to aliens

exempted or discharged from liability for the draft. 

[1] We are mindful that “[t]he deprivation of the privilege

of acquiring citizenship, which an alien in permanent residence normally enjoys, is a substantial penalty.” In re Rego,

289 F.2d 174, 176 (3rd Cir. 1966); see also United States v.

Lacher, 299 F.2d 919 (9th Cir. 1962) (expressly relying on In

re Rego). The loss of that opportunity, no less than the loss

of citizenship itself, “may result in ‘loss of both property and

life, or of all that makes life worth living.’ ” United States v.

Minker, 350 U.S. 179, 187 (1956) (quoting Ng Fung Ho v.

White, 259 U.S. 276, 284 (1922)). Thus, “[a] statute which

attaches such a penalty to certain conduct should be construed

strictly to avoid an imposition which goes beyond the manifest intent of Congress.” In re Rego, 289 F.2d at 176 (citing

Minker, 350 U.S. 179). 

[2] Section 315 is such a statute:

(a) Permanent ineligibility

Notwithstanding the provisions of section 405(b) but

subject to subsection (c) of this section, 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

GALLARDE v. INS 5523
or service on such ground, shall be permanently ineligible to become a citizen of the United States. 

(b) Conclusiveness of records

The records of the Selective Service System or of the

Department of Defense shall be conclusive as to

whether an alien was relieved or discharged from

such liability for training or service because he was

an alien. 

(c) Service in armed forces of foreign country

An alien shall not be ineligible for citizenship under

this section or otherwise because of an exemption

from training or service in the Armed Forces of the

United States pursuant to the exercise of rights under

a treaty, if before the time of the exercise of such

rights the alien served in the Armed Forces of a foreign country of which the alien was a national. 

8 U.S.C. § 1426 (emphasis added). 

The Immigration and Nationality Act of 1952 does not

define “training or service in the Armed Forces” or “such liability for training and service” and, therefore, does not, by its

explicit terms, either establish or foreclose the interpretation

advanced by Gallarde. 

The Immigration Act of 1990 vested “sole authority to naturalize persons as citizens of the United States” in the United

States Attorney General; courts retained authority to administer the oath of citizenship. Compare 8 U.S.C. § 1421(a)

(1970), with 8 U.S.C. § 1421(a) (1990). Thus, “the power to

naturalize plainly was shifted by the 1990 [Act] from the

courts to the [Immigration and Naturalization Service

(“INS”)].” Gorbach v. Reno, 219 F.3d 1087, 1089 (9th Cir.

2000). The INS, exercising its newly acquired authority, pro5524 GALLARDE v. INS
mulgated 8 C.F.R. § 315.2. Therein, it adopted existing court

recognized exceptions to § 315’s bar to citizenship, including:

(1) At the time that he or she requested an exemption from military service, the applicant had no liability for such service even in the absence of an

exemption; 

* * *

(7) The applicant is applying for naturalization

pursuant to section 329 of the Act. 

8 C.F.R. § 315.2(b)(1),(7);2see also 56 Fed. Reg. 50477

(“Part 315, Persons Ineligible To Citizenship: Exemption

2When § 315 was enacted in 1952, exclusive jurisdiction to naturalize

persons as United States citizens was vested in various federal and state

courts. See Tutun v. United States, 270 U.S. 568, 575-76 (1926). Although

the text of the Immigration and Nationality Act of 1952 contains no exceptions to § 315’s citizenship bar, federal courts recognized several exceptions. See, e.g., Astrup v. INS, 402 U.S. 509 (1971) (excepting alien from

citizenship bar who was inducted into the Armed Forces notwithstanding

earlier alienage exemption); Bachmann v. United States, 327 F.2d 415,

416 (9th Cir. 1964) (discussing knowing and intelligent waiver prerequisite to § 315’s citizenship bar) (citing Moser v. United States, 341 U.S. 41

(1951) (requiring same as to § 315’s predecessor)); In re Wendt, 300

F.Supp. 725, 727 (N.D. Ill. 1969) (excepting alien from citizenship bar

who was not liable for the draft when application for exemption was

made); In re Madsen, 267 F.Supp. 888, 889 (C.D. Cal. 1967) (excepting

alien from citizenship bar who did not knowingly and intelligently waive

citizenship); Petition of Felleson, 169 F.Supp. 471, 473-74 (N. D. Ill.

1958) (excepting alien eligible for naturalization under Public Law 86,

83rd Cong. 1st Sess.—the predecessor to § 329 of the Immigration and

Nationality Act of 1952—on the basis of wartime military service notwithstanding that alien was barred under § 315); In re Planas, 152 F.Supp. 456

(D. N.J. 1957) (excepting alien given inaccurate advice as to consequences

of exemption by his draft board). None of these cases, however, addresses

the question at bar, i.e., whether § 315’s citizenship bar extends to aliens

exempted or discharged from voluntary training or service in the Armed

Forces. 

GALLARDE v. INS 5525
From Military Service, is a new part derived entirely from

existing interpretations [of § 315].” (emphasis added)).3“Exemption from military service[, in the first exception,] means

either: (1) A permanent exemption from induction . . . ; or (2)

The release or discharge from military training or military

service . . . .” 8 C.F.R. § 315.1. Like the Immigration and

Nationality Act of 1952, 8 C.F.R., Part 315 does not define

“such service,” as used in 8 C.F.R. § 315.2(b)(1), or “military

training or military service,” as used in 8 C.F.R. § 315.1.

Accordingly, neither 8 C.F.R. § 315.1 nor § 315.2 resolves the

question we face, i.e., whether “training or service in the

Armed Forces,” as used in § 315(a), and “military training or

military service,” as used in 8 C.F.R. § 315.1, include voluntary training or service in the Armed Forces or, as Gallarde

contends, include only compulsory training or service in the

Armed Forces. 

I. Determining The Meaning Of “Training Or Service In

The Armed Forces” 

“Because this case involves an administrative agency’s

construction of a statute that it administers, our analysis is

governed by Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984).” FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). The

3Given that women have never been liable for the draft, the INS’s use

of “he or she” and “his or her” in 8 C.F.R. § 315.2 arguably suggests the

INS interpreted § 315’s citizenship bar as applying to aliens discharged

from voluntary military service from becoming citizens. The existing

interpretations from which 8 C.F.R. § 315.2 was entirely derived, however, exclusively involve cases in which male aliens were exempted or

discharged from liability for the draft. In addition, that the INS intended

“he or she” and “his or her” to indicate § 315 applies to exemptions from

voluntary military service is arguably belied by the use of “treaty national”

and “he or she” in 8 C.F.R. § 315.2(b)(6)(I), because the referenced treaties, see 8 C.F.R. § 315.4, address the exemption of treaty nationals from

liability for compulsory military service in the United States military, a

singularly male liability. 

5526 GALLARDE v. INS
Supreme Court has articulated Chevron analysis as requiring

a contextual analysis of the statute at issue: 

In determining whether Congress has specifically

addressed the question at issue, a reviewing court

should not confine itself to examining a particular

statutory provision in isolation. The meaning—or

ambiguity—of certain words or phrases may only

become evident when placed in context. It is a fundamental canon of statutory construction that the

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme. 

Id. at 132-33 (internal citations and quotation marks omitted);

see also Gorbach, 218 F.3d at 1093 (holding that a statute

“must be read in context with a view to its place in the statutory scheme, not in isolation”). 

In addition to reading a statute with a view to its place in

the overall statutory scheme, a statute must also be read in

historical context. See Se. Cmty. Coll. v. Davis, 442 U.S. 397,

411 (1979) (“Although an agency’s interpretation of the statute under which it operates is entitled to some deference, ‘this

deference is constrained by our obligation to honor the clear

meaning of a statute, as revealed by its language, purpose, and

history.” (emphasis added) (quoting Teamsters v. Daniel, 439

U.S. 551, 566 n. 20 (1979))). Standing alone the phrase

“training or service in the Armed Forces” in § 315(a) is broad

enough to include voluntary training or service in the Armed

Forces. Our task, however, is not to determine the meaning of

the phrase “training or service in the Armed Forces” in isolation. Rather, we must determine the meaning of “training and

service in the Armed Forces” in context because “[t]he

meaning—or ambiguity—of certain words or phrases may

only become evident when placed in context.” Brown & Williamson Tobacco, 529 U.S. at 132-33. 

GALLARDE v. INS 5527
At the outset we note the phrase “training or service in the

Armed Forces,” in § 315(a) is not modified by “all,” “compulsory,” or “voluntary.” Thus, “training or service in the Armed

Forces” in § 315(a) can fairly be interpreted to include (1) all

training and service in the Armed Forces; (2) only compulsory training and service in the Armed Forces; or (3) only voluntary training and service in the Armed Forces. See, e.g.,

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (finding the

term “employee” in an anti-retaliation section of Title VII

could be read to include only former employees, only current

employees, or both); Minker, 350 U.S. at 186 (“In short,

[“witnesses”] is patently ambiguous: it can fairly be applied

to anyone who gives testimony in a proceeding, although the

proceeding immediately or potentially involves him as a

party, or it may be restricted to the person who gives testimony in another’s case”). 

Ambiguity for Chevron purposes, however, “is a creature

not of definitional possibilities but of statutory context.” See

Brown v. Gardner, 513 U.S. 115, 118 (1994). Here, as we will

see, when § 315 is read in statutory and historical context,

“training or service in the Armed Forces” unambiguously

includes only compulsory training or service in the Armed

Forces. Thus, § 315’s citizenship bar does not apply to aliens,

like Gallarde, discharged on the basis of alienage from voluntary training and service in the Armed Forces. 

II. Statutory Context Of § 315 

[3] Congress, through §§ 315, 328, and 329 of the Immigration and Naturalization Act of 1952, continued a set of

laws that provides immigration benefits and penalties tied to

military service and the avoidance thereof on the basis of

alienage. See infra, III.C (discussing historical structure).

Under § 329, a single day of honorable military service during

a designated period of hostilities qualifies an alien for accelerated naturalization.4

See The Immigration and Nationality

4Absent acceleration, a legal permanent resident must accrue five years

of continuous residence prior to his or her application for citizenship, the

5528 GALLARDE v. INS
Act, Pub. L. No. 414, § 329, 66 Stat. 162, 250 (1952) (codified at 8 U.S.C. § 1440). However, under § 329 “no person

who is or has been separated from such service on account of

alienage . . . shall be regarded as having served honorably or

having been separated under honorable conditions for the purposes of this section.” Id. (emphasis added). Thus, Congress

imposed a limited penalty short of a citizenship bar on aliens

separated from military service on the basis of alienage, i.e.,

ineligibility for accelerated naturalization under § 329. 

[4] An alien separated from military service on the basis of

alienage, however, may still qualify for accelerated naturalization under § 328. Thereunder, an alien qualifies for accelerated naturalization by serving honorably for a period or

periods aggregating one year. See Immigration and Nationality Act § 328 (codified at 8 U.S.C. § 1439).5

 Significantly,

aliens discharged on the basis of alienage are not excluded

from accelerated naturalization under § 328. Cf. Barnhart v.

Sigmon Coal Co., Inc., 534 U.S. 438, 452 (2002) (“[W]hen

last three months of which must be in the state or district in which the citizenship application is filed. See 8 U.S.C. § 1427. 

5When enacted, during Gallarde’s Navy service, and when he was honorably discharged, § 328 stated: 

A person who has served honorably at any time in the armed

forces of the United States for a period or periods aggregating

three years, and who, if separated from such service, was never

separated except under honorable conditions may be naturalized

without having resided continuously immediately preceding the

date of filing of such person’s petition, in the United States for

at least five years, and in the State in which the petition for naturalization is filed for at least six months, and without having been

physically present in the United States for any specified period

. . . . 

66 Stat. at 249 (emphasis added) (codified at 8 U.S.C. § 1439). Section

328 was subsequently amended to reduce the required period of military

service to one year. See National Defense Authorization Act for Fiscal

Year 2004, Pub. L. No. 108-136, § 1701(a), 117 Stat. 1392, 1691 (2003).

GALLARDE v. INS 5529
Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.” (internal quotation

marks omitted)). Thus, a period of otherwise honorable military service not considered honorable for purposes of accelerated naturalization under § 329, may be regarded as honorable

for the purposes of accelerated naturalization under § 328.6

Here, were we to hold, as the Government proposes, that

“training or service in the Armed Forces,” as used in § 315,

includes voluntary military service, we would render § 329’s

limited penalty superfluous and the absence of such a penalty

in § 328 insignificant; if § 315(a)’s citizenship bar applies to

separation on the basis of alienage from voluntary military

service, it would be irrelevant whether that service qualified

an alien for § 329’s relaxed naturalization requirements. This

we cannot do because “[i]t is our duty to give effect, if possible, to every clause and word of a statute[,]” United States v.

Menasche, 348 U.S. 528, 538-39 (1955) (internal quotation

marks omitted), and “[i]t is a cardinal principle of statutory

construction that a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.” TRW Inc.

6Gallarde’s three and a half years of honorable military service qualified

him for accelerated naturalization under § 328 in 1995. Aliens eligible for

naturalization under § 329 are expressly excepted from § 315’s citizenship

bar by 8 C.F.R. § 315.2(b)(7), which was derived from Petition of Felleson, 169 F.Supp. at 473-74 (excepting from citizenship bar an alien eligible for naturalization under § 329’s predecessor, Public Law 86, 83rd

Cong. 1st Sess., because that legislation did not expressly withhold accelerated naturalization from aliens barred by § 315). Because we hold that

§ 315’s citizenship bar does not apply to aliens, such as Gallarde, discharged from voluntary military service on the basis of alienage, we do

not decide whether aliens eligible for accelerated naturalization under

§ 328 are likewise excepted from § 315’s citizenship bar. 

5530 GALLARDE v. INS
v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks

and citations omitted).7

[5] Congress’s use in § 329 of the phrase “enlistment or

induction” is also instructive because it demonstrates that

where Congress intended to impose a disability upon aliens

discharged from voluntary training or serving in the Armed

Forces on the basis of alienage it did so expressly by including both “enlistment,” a term denoting voluntary military service, see infra section III, and “induction,” a term denoting

involuntary military service, id. See 8 U.S.C. § 1440. Accordingly, reading § 315 in statutory context, we conclude § 315’s

citizenship bar applies only to aliens exempted or discharged

from compulsory training or service in the Armed Forces. 

7

In addition, were we to read § 315’s citizenship bar as applying to

aliens exempted or discharged on the basis of alienage from voluntary

training and service, we would reach at least one absurd result. Section

314 prevents circumvention of § 315 by denying citizenship to aliens who

leave the United States to avoid the draft rather than apply for an alienage

exemption that would trigger § 315’s citizenship bar. See Immigration and

Nationality Act § 314 (codified at 8 U.S.C. § 1425). Section 314 also bars

from citizenship aliens who desert the Armed Forces during time of war.

Id. Section 314, however, does not bar from citizenship aliens who desert

during time of peace. Id. Thus, were we to read § 315’s citizenship bar as

applying to aliens eligible for naturalization under § 328, an alien who

deserts the Armed Forces during peacetime (a crime punishable by up to

five years of confinement, see 10 U.S.C. § 885) would remain eligible to

become a United States citizen, but an alien who requests and is granted

a discretionary discharge, see section IV infra, would be barred from

becoming a citizen. Thus, under the interpretation proposed by the Government, had Gallarde merely “gone over the hill” rather than follow regulations Gallarde would be eligible for citizenship. We read statutes in a

manner that avoids such an absurd result. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (“It is true that interpretations of a

statute which would produce absurd results are to be avoided if alternative

interpretations consistent with the legislative purpose are available.”); see

also Amalgamated Transit Union Local 1309 v. Laidlaw Transit Serv.,

Inc., 435 F.3d 1140, 1145 (9th Cir. 2006) (interpreting “not less than 7

days” in 28 U.S.C. § 1453(c)(1) to mean “not more than 7 days” to avoid

an illogical result), rehearing en banc denied, 448 F.3d 1092 (9th Cir.

2006). 

GALLARDE v. INS 5531
III. Historical Context Of § 315 

[6] Our conclusion that § 315, when read in statutory context, does not apply to aliens discharged on the basis of alienage from voluntary training or service in the Armed Forces

finds reinforcement in the historical context in which § 315

was enacted. Specifically, our interpretation is reinforced by

the facts that (1) § 315’s citizenship bar historically applied

only to aliens exempted or discharged from the draft; (2)

when used in the context of liability, the contemporaneous

statutory meaning of “training or service in the Armed

Forces” was the draft; (3) Congress narrowed the scope of

§ 315’s predecessor to allow for the coexistence of a citizenship bar and accelerated naturalization on the basis of honorable military service. 

A. Section 315 Historically Resided In The Selective

Service Act, It Applied Only To Aliens Exempted

Or Discharged From Liability For The Draft 

We cannot ignore the fact that the citizenship bar now contained in § 315 was historically part of the selective service

statutes and barred from citizenship only aliens exempted or

discharged from liability for the draft on the basis of alienage.

See Davis, 442 U.S. at 411; Gorbach, 219 F.3d at 1093. 

In 1917 Congress authorized the President, at his discretion, to institute a military draft. See An Act to Authorize the

President to Increase Temporarily the Military Establishment

of the United States, Pub. L. No. 12, 40 Stat. 76 (1917)

(“1917 Draft Act”). In 1918 Congress amended the 1917

Draft Act to (1) impose liability for the draft on so-called

“treaty aliens;”

8

 (2) allow treaty aliens to avoid liability for

8Gallarde is not a treaty alien. The United States never entered a treaty

with the Phillippines providing for the reciprocal exemption of aliens from

compulsory military service. See 8 C.F.R. § 315.4 (listing all such treaties). 

5532 GALLARDE v. INS
the draft by withdrawing their intent to become citizens of the

United States; and (3) bar any alien avoiding the draft in this

manner from ever becoming a United States citizen. Likewise,

the Selective Service Act of 1940, the Selective Service Act

of 1948, and the Universal Military Training and Service Act

of 1951 permitted an alien to avoid liability for the draft if

“prior to his induction[9] . . . he has made application to be

relieved from such liability.” See Act to Amend the Selective

Training and Service Act of 1940, Pub. L. No. 360, § 3, 55

Stat. 845 (1941);10 Selective Service Act of 1948, Pub. L. No.

758, §§ 4,6,8, 62 Stat. 604, 606, 609, 614 (1948);11 The Uni9

See infra, section III.C (discussing the significance of this requirement). “Induction” refers only to entering military service or training as

a result of the draft. 

10In relevant part, the Selective Service Act of 1940, as amended, stated:

Sec. 3. (a). Except as provided in this Act, every male citizen of

the United States, and every other male person residing in the

United States . . . shall be liable for training and service in the

land and naval forces of the United States: Provided, That any

citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be

relieved from such liability in the manner prescribed by and in

accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter

be debarred from becoming a citizen of the United States . . . .

Act to Amend the Selective Training and Service Act of 1940, Pub. L. No.

360, § 3, 55 Stat. 845 (1940) (emphases added). 

11In relevant part, the Selective Service Act of 1948 stated: 

Sec. 4. (a) Except as otherwise provided in this title, every male

citizen of the United States, and every other male person residing

in United States . . . shall be liable for training and service in the

armed forces of the United States. Any citizen of a foreign country, who is not deferrable or exempt from training and service

under the provisions of this title (other than this subsection), 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 barred from becoming

a citizen of the United States. 

Selective Service Act of 1948, Pub. L. No. 758, §§ 4, 62 Stat. 604, 606

(1948) (emphases added). 

GALLARDE v. INS 5533
versal Military Training and Service Act of 1951, Pub. L. No.

51, 65 Stat. 75-89 (1951). Like the 1917 Draft Act, exercise

of the right to exemption from liability for the draft under

these statutes barred the alien from ever becoming a citizen.

“The Immigration and Nationality Act of 1952 brought

together in one statute the previously atomized subjects of

immigration, nationality, and naturalization.” Minker, 350

U.S. at 286. In the process, however, Congress separated the

historically combined right of an alien to avoid the draft from

the penalty for exercising that right; an alien’s right to exemption remained in § 454 of the Universal Military Training Act.

See Immigration and Nationality Act, Pub. L. No. 414,

§§ 101, 315, 403(b), 66 Stat. 163, 169, 242, 280 (1952); 62

Stat. 604, 606, 609, 614 (1948). 

Notwithstanding the fact that an alien’s right to avoid liability for the draft and the penalty for doing so are no longer

located in the same statute, we discern nothing in the text of

§ 315, the Immigration and Nationality Act of 1952, or § 453

of the Universal Military Training Act12 suggesting Congress

intended to expand the scope of § 315’s citizenship bar

beyond its historical scope.13

12In 1971, Congress amended 50 U.S.C. app. § 453 by adding a provision exempting non-immigrant aliens from selective service registration

requirements and amended 50 U.S.C. app. § 454(a) by omitting any reference either to exemption of aliens or to ineligibility for citizenship if an

alien is exempted from registration. See Act of Sept. 28, 1971, Pub. L. No.

92-129, § 101(a)(2), 85 Stat. 348. 

13Although not essential to our decision, those interested in legislative

history as an aid to statutory interpretation will find that § 315’s limited

legislative history supports the conclusion that Congress did not intend the

Immigration and Naturalization Act of 1952 to expand the scope of the

Selective Service Act of 1948’s citizenship bar: 

When the Nationality Act was enacted in 1940, the nature and

scope of our possible participation in World War II could not be

accurately anticipated and provided for. As a result, the Congress

has found it necessary to enact certain amendments liberalizing

5534 GALLARDE v. INS
B. The Contemporaneous Meaning Of “Training Or

Service In The Armed Forces” 

“A fundamental canon of statutory construction is that,

unless otherwise defined, words will be interpreted as taking

their ordinary, contemporary, common meaning.” Perrin v.

United States, 444 U.S. 37, 42 (1979) (stating that the usage

naturalization privileges to those aliens who served in our armed

forces during the war. Some of these privileges have now lapsed,

and those aliens now serving in our armed forces do not enjoy the

extremely liberal provisions which were enjoyed during the war

period. 

* * *

The wartime provisions granting special privileges for wartime

service have lapsed, but a new section, section 324A[, now

§ 329,] was added to the Nationality Act of June 1, 1948. This

new section provides for naturalization of an alien who has

served honorably in an active duty status during World War I or

World War II. . . . It should be noted that wartime service must

be in an active-duty capacity but that no particular or specified

period of time is necessary. 

* * *

Another group of persons who are permanently barred from

applying for citizenship is that group covered by the provisions

of section 4(a) of the Selective Service Act of 1948. This section

provides that an alien who, not being deferrable or exempt from

training and service, applies for relief from such training and service prior to his induction is forever barred from applying for naturalization. The subcommittee feels that this provision is in line

with the general concept of the Nationality Act and will recommend that these provisions be incorporated in the proposed bill

so that all requirements for naturalization may be found in one

Act.

S. Rep. No. 1515, 725 (Apr. 20, 1950) (emphasis added). Thus, § 315’s

legislative history indicates Congress intended simply to incorporate existing naturalization provisions related to military service into the Immigration and Nationality Act of 1952. Congress did not appear to have

intended to expand the scope of a longstanding citizenship bar. 

GALLARDE v. INS 5535
of the term at the time of its enactment is determinative). Our

review of the 1917 Draft Act, the Selective Service Act of

1940, the Selective Service Act of 1948, and the Universal

Military Training and Service Act of 1951 leads us to the conclusion that the contemporary meaning of “training or service

in the Armed Forces,” as used in § 315(a), included only compulsory training or service in the Armed Forces pursuant to

the draft. 

As an initial matter, “liability” appears only in § 315(b), the

subsection of § 315 addressing means of proof. See 8 U.S.C.

§ 1426(b). “Liability” in § 315(b), however, is modified by

“such” and, therefore, refers to “training or service in the

Armed Forces” in § 315(a), the subsection of § 315 containing the citizenship bar at issue in this case. See 8 U.S.C.

§ 1426(a); see also Blacks Law Dictionary 1473 (8th ed.

2004) (defining “such” as “[t]hat or those; having just been

mentioned”). Accordingly, a “liability” requirement has properly been read into § 315(a). See 8 C.F.R. § 315.2(b)(1)

(excepting aliens not liable for military training or military

service from § 315’s citizenship bar); In re Wendt, 300

F.Supp. at 727 (excepting from § 315’s citizenship bar alien

who was not liable for the draft when he applied for a draft

exemption) (following McGrath v. Kristensen, 340 U.S. 162,

172 (1950) (“ ‘Such application’[, in Section 4(a) of the

Selective Service Act of 1948,] refers to an application to be

relieved from ‘such liability.’ As there was no ‘liability’ for

service, his act in applying for relief from a nonexistent duty

could not create the bar against naturalization.”)). 

The 1917 Draft Act distinguished between voluntary and

involuntary military service, using “liability to military service,” “liable,” “exempt,” and “exemption” when referring to

involuntary military service pursuant to the draft and “enlistment” or “voluntary enlistment” when referring to voluntary

military service. See 40 Stat. at 77-78. 

Likewise, the Selective Service Act of 1940 distinguished

between voluntary and involuntary military service, using the

5536 GALLARDE v. INS
language “liable for training and service” and “liability to

serve” when referring to involuntary military service. See

Selective Service Act of 1940, Pub. L. No. 783, §§ 3, 5, 54

Stat. 885, 887 (1940). 

The Selective Service Act of 1948 and the Universal Military Training and Service Act of 1951 also used similar language, distinguishing between voluntary and involuntary

military service by using “inducted” and “liability for training

and service” when referring to the draft and “enlist” when

referring to voluntary service and barred only aliens who

avoided the draft on the basis of their alienage from becoming

United States citizen. See Selective Service Act of 1948, Pub.

L. No. 758, §§ 4,6,8, 62 Stat. 604, 606, 609, 614 (1948); see

also The Universal Military Training and Service Act of

1951, Pub. L. No. 51, 65 Stat. 75-89 (1951) (amending the

Selective Service Act of 1948). 

Finally, 10 U.S.C. § 1 used “liable” and “liable to perform

military duty” to describe men subject to the draft: 

National Forces; persons liable to perform military duty. 

All able-bodied male citizens of the United States,

and persons of foreign birth who have declared their

intention to become citizens of the United States

under and in pursuance of the laws thereof, between

the ages of eighteen and forty-five years, are

declared to constitute the national forces, and, with

such exceptions and under such conditions as may

be prescribed by law, shall be liable to perform military duty in the service of the United States. 

10 U.S.C. § 1 (1950) (italics added) (Apr. 22, 1898, ch. 187,

§ 1, 30 Stat. 361). “Such conditions,” thereunder, were proscribed by the Universal Military Service and Training Act of

GALLARDE v. INS 5537
1951, which defined liability for the draft. See 50 U.S.C. app.

§ 454 (a) (1951). 

Accordingly, when tied to the concept of liability, the contemporaneous statutory meaning of “training or service in the

Armed Forces” included only compulsory training and service

pursuant to the draft. 

C. Congress’s Narrowing Of The 1917 Draft Act’s

Citizenship Bar 

Under the 1917 Draft Act, aliens were not required to exercise their right to exemption from the draft “prior to induction.” See 40 Stat. at 76. Accordingly, the 1917 Draft Act’s

citizenship bar applied to aliens exempted or discharged14

from liability for the draft at any time. Id.

On September 16, 1940, Congress replaced the 1917 Draft

Act with the Selective Service Act of 1940. See 54 Stat. 885.

As initially enacted, the Selective Service Act of 1940 did not

grant aliens a right to exemption from liability for the draft or

contain a citizenship bar. Id.

On October 14, 1940, Congress enacted the Nationality Act

of 1940, providing therein for accelerated naturalization on

the basis of a three-year period of honorable military service.

See The Nationality Act of 1940, Pub. L. No. 853, § 324, 64

Stat. 1137, 1149 (1940). Nothing in the Nationality Act of

1940 deprives an alien discharged under honorable conditions

on the basis of alienage from pursuing accelerated naturalization thereunder. 

14The Draft Act of 1917 used “discharge” and “discharging” when

referring to relief from liability for the draft. Id. (“[T]he President is

hereby authorized to exclude or discharge from said selective service draft

. . . persons of the following classes: . . . discharging individuals or classes

of individuals from the selective draft[.]”) (emphasis added). 

5538 GALLARDE v. INS
On December 20, 1941, Congress amended the Selective

Service Act of 1940 to permit an alien to avoid the draft by

applying for an exemption “prior to induction” and to impose

a citizenship bar upon any alien making such an application.

See 55 Stat. at 845. By limiting the Selective Service Act of

1940’s citizenship bar to aliens who apply for exemption

“prior to induction,” Congress preserved accelerated naturalization under the Nationality Act of 1940 for aliens who

entered the Armed Forces, later to be separated from military

service under honorable conditions on the basis of alienage.15

Three months after the attack on Pearl Harbor, Congress

amended the Nationality Act of 1940 to provide for accelerated naturalization on the basis of even one day of honorable

wartime military service. See War Powers Act of 1942, Pub.

L. No. 507, § 701, 56 Stat. 176, 182 (1942). Congress, however, expressly denied this form of accelerated naturalization

to any alien discharged on the basis of his alienage by stating

therein that: “The provisions of this title[, the War Powers Act

of 1942,] shall not apply to . . . any person who . . . is discharged therefrom on account of alienage[.]” 56 Stat. at 183

(emphasis added). Significantly, because this disqualification

was limited to the loss of eligibility under “provisions of this

title,” an alien discharged on the basis of alienage could still

seek accelerated naturalization under the Nationality Act of

1940 on the basis of a three-year period of honorable military

service or, if a legal permanent resident, on the basis of fiveyears of continuous residence. In short, Congress created a

two-tiered system rewarding honorable military service with

accelerated naturalization depending on the length of such

service, the peace or war time nature of such service, and

whether such service was terminated on the basis of alienage.

15The Selective Service Act of 1948 and the Universal Military Training

and Service Act of 1951 likewise barred from citizenship only those aliens

who applied for an exemption “prior to induction.” See 62 Stat. 604; 65

Stat. 75. 

GALLARDE v. INS 5539
[7] We discern nothing in the Immigration and Nationality

Act of 1952 suggesting Congress intended to disturb this system. Indeed, we conclude that in enacting §§ 315, 328 and

329 of the Immigration and Nationality Act of 1952, Congress

intended to continue that system. 

IV. No Risk Of An Exodus of Aliens From The Armed

Forces 

The Government contended at oral argument that adopting

the interpretation of § 315 advanced by Gallarde would have

grave consequences. Specifically, the Government contended

that interpreting § 315’s citizenship bar not to apply to aliens

exempted or discharged from voluntary military service

would permit aliens unilaterally to terminate their enlistment

contracts without consequence. Not so. Aliens do not possess

a right to a discharge, based on alienage, from voluntary military service.16 Rather, certain aliens may apply for a discretionary administrative discharge on the basis of alienage. 

[8] Congress granted the Secretary of Defense authority

over the administrative separation of enlisted service members. See 10 U.S.C. § 1169. The Secretary of Defense delegated this authority to the Secretaries of the individual

military services. See Department of Defense Directive

1332.14 (November 21, 2003). Presently, only the United

States Navy provides for separation on the basis of alienage.

Compare Naval Military Personnel Manual 1910 (April 1,

2004), with Army Regulation 635-200; Marine Corps Order

P1900.16F Ch 1; and Air Force Instruction 36-3208 (July 9,

2004).17 Although an alien serving in the United States Navy

16As previously noted, § 315 merely imposes a bar for the exercise of

such a right, it does not confer that right. 

17These regulations include numerous grounds for administrative separation from military service that are not dependent upon citizenship,

including hardship, pregnancy, and early release to pursue education. See,

e.g., MILPERSMAN 1900-100. 

5540 GALLARDE v. INS
may apply for an administrative discharge on the basis of

alienage, he has no right to such a discharge. See Naval Military Personnel Manual 1910-127.18 Indeed, the Navy denied

Gallarde’s first request for an early discharge under what is

now Naval Military Personnel Manual 1910-127 (3)(b)(3).

Accordingly, contrary to the Government’s fears, our holding

today does not give alien servicemen the unilateral right to

terminate voluntary enlistment contracts. Rather, an alien’s

request for an administrative discharge on the basis of alienage, like the request of a citizen applying for a hardship or

pregnancy discharge, may be denied.19

18In relevant part, Naval Military Personnel Manual 1910-127 states: 

3. Policy 

a. A member who is an alien may be separated upon member’s request. 

b. The request will normally be denied when a member 

* *

(3) is serving in a rating, Navy enlisted code, occupational field, or military occupational specialty determined to have significant personnel shortages. 

* * *

c. Exceptions to the conditions described above may be made

. . . if the request demonstrates overriding and compelling

factors of a personal need justifying separation. 

Naval Military Personnel Manual 1910-127 (April 1, 2004).

19Judicial review of the denial of an administrative discharge is “the

narrowest review known to law.” Taylor v. Claytor, 601 F.2d 1102, 1103

(9th Cir. 1979) (quoting Sanger v. Seamans, 507 F.2d 814, 816 (9th Cir.

1974); see also Roby v. Dep’t of the Navy, 76 F.3d 1052, 1056 (9th Cir.

1996) (“The military’s considered professional judgment is not lightly to

be overruled by the judiciary. Our review, therefore, is as deferential as

our constitutional responsibilities permit.” (internal quotation marks, citations, and ellipsis omitted)). 

GALLARDE v. INS 5541
Conclusion

For the foregoing reasons, we hold that, when read with a

view to its place in the statutory scheme and in its historical

context, § 315 applies only to aliens exempted or discharged

on the basis of alienage from compulsory training and service

in the Armed Forces. Under Chevron, such a determination

ends our inquiry; we “must give effect to the unambiguously

expressed intent of Congress.” Brown & Williamson Tobacco,

529 U.S. at 132. Accordingly, we REVERSE and REMAND

for further proceedings consistent with this opinion. 

5542 GALLARDE v. INS