432 F2d 438 Astrup v. Immigration & Naturalization Service

432 F.2d 438

Ib Otto ASTRUP, Petitioner and Appellant,
v.
IMMIGRATION & NATURALIZATION SERVICE, Appellee.

No. 23859.

United States Court of Appeals, Ninth Circuit.

July 8, 1970.

Certiorari Granted January 18, 1971.

See 91 S.Ct. 566.

Paul N. Halvonik (argued), San Francisco, Cal., for appellant.

David R. Urdan (argued), Cecil F. Poole, U. S. Atty., David N. Ilchert, Ass't. Director, I. & N. S., San Francisco, Cal., for appellee.

Before CHAMBERS, and TRASK, Circuit Judges, and PLUMMER, District Judge.

PER CURIAM:

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1

The decision and order of the district court denying citizenship to Astrup is affirmed. We believe that he is concluded by Lapenieks v. Immigration and Naturalization Service, 9 Cir., 389 F.2d 343, cert. den. 391 U.S. 951, 88 S.Ct. 1846, 20 L.Ed.2d 864.

2

He made a considered decision initially to claim his alienage as a ground for avoiding military service. We believe the situation should be tested as of the time his claim was made.

3

District Judge PLUMMER dissents for the reasons stated by Judge Duniway in his dissent in Lapenieks.