Pangilinan v. I.N.S.

Citation809 F.2d 1449
Decision Date13 February 1987
Docket Number81-5427,Nos. 80-4543,s. 80-4543
PartiesRe Naturalization of Antolin Punsalan PANGILINAN, et al., Petitioners- Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. Re Naturalization of Mario Valderrama LITONJUA, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Simmons & Ungar and Donald I. Ungar, San Francisco, Cal., Baxley and Mautino and Robert A. Mautino, San Diego, Cal., for the petitioners-appellants.

Lauri Steven Filppu, John T. Bannon, Jr., Marshall Tamor Golding and Frank O. Bowman, III, Washington, D.C., for the respondent-appellee.

Before SCHROEDER, FLETCHER and NORRIS, Circuit Judges.

ORDER

The panel, as constituted above, has unanimously voted to deny the petition for rehearing and to reject the suggestion for a rehearing en banc.

The full court has been advised of the suggestion for en banc rehearing and upon the vote of the eligible judges in active service, a majority failed to vote for en banc rehearing.

The petition for rehearing is DENIED, and the suggestion for a rehearing en banc is REJECTED.

KOZINSKI, Circuit Judge, with whom Circuit Judges SNEED, KENNEDY, ANDERSON, HALL, WIGGINS, THOMPSON and O'SCANNLAIN join, dissenting from the order rejecting the suggestion for rehearing en banc.

No doubt moved by what it sees as an injustice, the panel in this case has granted United States citizenship to the petitioners under a statute that expired over 40 years ago. While the panel may have acted from the noblest of motives, its opinion disregards the clear teachings of the Supreme Court in INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), and on a separate issue creates a square and irreconcilable conflict with the opinion of the Second Circuit in Olegario v. United States, 629 F.2d 204 (2d Cir.1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). It also misconstrues the function of the federal courts in naturalization proceedings, seriously overstates their equity power and unsettles established law as to congressionally mandated time limitations. The court today bypasses the opportunity to correct this constellation of errors.

I.

Petitioners are Filipino nationals who served in the armed forces of the United States during World War II. Pursuant to the Nationality Act of 1940, Pub. L. No. 76-853, 54 Stat. 1137 (1940), as amended by the Second War Powers Act, Pub.L. No. 77-0507, Sec. 1001, 56 Stat. 182 (1942) (the Act or the 1940 Act), they were entitled to apply for U.S. citizenship under greatly liberalized conditions. The time to apply under the 1940 Act expired on December 31, 1946. None of the petitioners applied for citizenship within the time allowed.

The panel hearing this case nevertheless granted petitioners citizenship. The panel divined authority for this unusual action from the court's equity powers, justifying it as "the only effective remedy available" to rectify an "error" the Attorney General supposedly committed some 40 years ago. 796 F.2d 1091, 1103. This "error" was the Attorney General's failure to station an officer with naturalization authority in the Philippines during a nine-month period from October 1945 to August 1946. The Attorney General's action had come in response to concerns expressed to our State Department by the nascent Philippine government that a vigorous naturalization program on Philippine soil might result in a mass exodus of the new country's best young men.

II.
A. Conflict with the Second Circuit

The opinion's fulcrum is its determination that, by not stationing an immigration examiner in the Philippines for those nine months, "the Attorney General [denied] a class of eligible servicemen--in this case Filipinos--the benefits of the Act." 796 F.2d at 1098. But the Act did not give Filipino servicemen a right to citizenship. As the Second Circuit concluded in Olegario, "[a]t most, the statute provided [them] with an opportunity to become ... citizen[s]." Olegario, 629 F.2d at 224 (emphasis added).

The Act gave the INS and the Attorney General considerable discretion in implementing the naturalization program. 1940 Act Secs. 702-03. The question is whether the Attorney General abused this discretion in responding to the concerns of the soon-to-be-independent Philippine government. The Second Circuit carefully considered the question and concluded that he had not The executive decision at issue here was thus based on policy considerations traditionally, although not exclusively, associated with the executive branch. The authority granted to the Commissioner and the Attorney General, to implement the Act without specific guidelines or restrictions, was sufficient to permit the executive to exercise some discretion when confronted with a seemingly delicate foreign affairs matter.... The decision to withdraw the naturalization examiner from the Philippines was not clearly beyond the limits of the Attorney General's discretion or contrary to Congress's vision of the executive's role in implementing the Act.

629 F.2d at 227. See also id. at 228 ("[t]he decision to withdraw all naturalization authority from the Philippine Islands for a nine month period was not a manifest abuse of ... discretion").

Our panel's contrary conclusion is based on its assertion that "there is little room for doubt that the Attorney General's revocation of ... authority [to perform naturalizations in the Philippines] was 'incompatible with the expressed will of Congress.' " 796 F.2d at 1099 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring)). The panel errs; there is plenty of room for doubt.

Section 702 of the Act speaks in mandatory terms only in describing the steps the naturalization petitioner must take in applying for citizenship: "The petition for naturalization of any petitioner under this section shall be made and sworn to before, and filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner or a Deputy Commissioner...." 1940 Act Sec. 702. In all other respects the statute speaks in the permissive, leaving it to the "Commissioner, with the approval of the Attorney General," to establish the procedures for implementing the Act. Id. Sec. 705.

The panel's conclusion that the Attorney General's action was contrary to the will of Congress, and therefore represented the "lowest ebb" of executive power, is simply wrong. Nothing in the Act compelled the Attorney General to place immigration examiners in any one place at any one time. The panel's focus on snippets from the statute, generously punctuated with emphasis, 796 F.2d 1099-1100, cannot nullify the very broad discretion that the statute gave the Attorney General in implementing the naturalization program. So long as he acted out of a proper motive, and foreign relations surely is a proper concern of the executive branch, "[t]he decision to withdraw the naturalization examiner from the Philippines was not clearly beyond the limits of the Attorney General's discretion or contrary to Congress's vision of the executive's role in implementing the Act." Olegario, 629 F.2d at 227.

The panel derives much comfort from a statement in INS v. Miranda, 459 U.S. 14, 18, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982), that the Attorney General's decision to withdraw naturalization authority from the Philippines was clear error. 796 F.2d at 1099, 1102 & n. 15. But such heavy reliance on a stray remark made by the Court in an unrelated context by way of illustrating an entirely different point is misplaced. It is inconceivable that the Court resolved this important and difficult question in such an off-hand manner in a case where it was not argued, briefed or even at issue.

B. Disregard of Controlling Supreme Court Authority

Some 13 years ago the Supreme Court summarily reversed our ruling that the Attorney General was estopped from denying these Filipino servicemen citizenship. In so doing the Court noted the twin public policies of the 1940 Act:

Here the petitioner has been charged by Congress with administering an Act which both made available benefits of naturalization to persons in respondent's class and established a cutoff date for the claiming of such benefits. Petitioner, in enforcing the cutoff date established by Congress, as well as in recognizing claims for the benefits conferred by the Act, is enforcing the public policy established by Congress.

Hibi, 414 U.S. at 8, 94 S.Ct. at 21 (emphasis added). Hibi concluded that the Attorney General's withdrawal of naturalization authority from the Philippines did not amount to affirmative misconduct; it therefore held that the government could not be equitably estopped from enforcing the congressional policy embodied in the Act's expiration date.

The panel's decision here uses somewhat different language but the result it reaches is precisely that rejected by the Supreme Court in Hibi: There is no meaningful difference between saying that the government is equitably estopped from raising the statutory cutoff date and disregarding the cutoff date as a matter of equity. The panel substitutes words for concepts.

While the panel seeks to distinguish Hibi, unsuccessfully in my view, one aspect of the Court's ruling is beyond cavil: the determination that the December 31, 1946, cutoff date is one of the public policies of the 1940 Act. "[E]quity," wrote Justice Douglas, is "the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. v. Bowles, 321 U.S. 321, 329-30, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944). One searches the panel's opinion in vain for weighing, consideration, acknowledgment or even recognition of the "public policy established by Congress" in the December 31, 1946, cutoff date. H...

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