Discharged from military for alienage means no naturalization under section 329

Sakarapanee v. DHS, http://www.ca6.uscourts.gov/opinions.pdf/10a0251p-06.pdf

Having lived in the U.S. since he was one, the LPR enlisted in the Navy in 1990.  Having problems, he eventually sought and obtained a discharge.   It was an honorable discharge, but on the basis of alienage.

He applied for regular naturalization under INA 316, but it was denied because of the bar in INA 315(a).  Later, he reapplied but under INA 329 because he served in the military during a time of conflict.  It was again denied and he appealed to the district court.  On review, the Sixth Circuit affirmed the denial.

Addressing INA 315(a), the Ninth Circuit held that it did not apply to aliens who voluntarily enlisted and were then discharged on the basis of alienage.  Gallarde v. INS, 486 F.3d 1136 (9th Cir. 2007).  The Sixth Circuit sidestepped whether Gallarde was good law in this circuit because INA 329 differs from INA 315 in material respects.  Notably, section 329 specifically applies to both enlisted service members and draftees, while section 315 is more ambiguous about its scope.