United States Immigration & Naturalization Serv. v. Hibi

Decision Date08 February 1973
Docket NumberNo. 72-1562.,72-1562.
Citation475 F.2d 7
PartiesUNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant, v. Marciano Haw HIBI, Petitioner-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Joseph Sureck, Regional Counsel (argued), I & NS, San Pedro, Cal., Stephen M. Suffin, I & NS, San Francisco, Cal., James L. Browning, Jr., U. S. Atty., William B. Spohn, Asst. U. S. Atty., San Francisco, Cal., Richard Kleindienst, Acting Atty. Gen., Dept. of Justice, Washington, D. C., for respondent-appellant.

Donald L. Ungar (argued), Milton T. Simmons, of Phelan, Simmons & Ungar, San Francisco, Cal., for petitioner-appellee.

Before BARNES and TRASK, Circuit Judges, and EAST,* District Judge.

TRASK, Circuit Judge:

This is an appeal from an order granting the petition for naturalization of Marciano Haw Hibi, a Philippine native, over the recommendation of the Naturalization Examiner of the Immigration and Naturalization Service that the petition be denied. The basis for the petition was Hibi's service in the Armed Forces of the United States during its war with Japan.

The issues on appeal involve the discretion, if any, invested in the Commissioner of Immigration and Naturalization and the Attorney General under section 705 of the Naturalization Act of 1940. Also, whether the Immigration Service failed in its duty to carry into effect the purposes of section 702 of the Act, and thus should be estopped from asserting delay in filing as a basis on which to reject this petition for naturalization.

Hibi, the petitioner, entered the United States on April 25, 1964, as a temporary business visitor. On September 13, 1967, he petitioned for naturalization under sections 701-705 of the Nationality Act of 1940,1 based upon his military service in the Armed Forces of the United States. The Naturalization Examiner found the petitioner to be ineligible under sections 701 and 702 of the Nationality Act of 1940.

The district court ordered that the petition be granted, finding the petitioner eligible under section 702 of the 1940 Act. The issue there, as here, concerned the timing of the filing of the petition, since it was filed long after the expiration of section 702 (December 31, 1946), and subsequent to the enactment of section 310(e) of the present Immigration and Nationality Act which precludes the naturalization of anyone except in accordance with present requirements.2

Section 702 was a measure which offered American citizenship to non-citizens serving in the Armed Forces of the United States overseas during World War II who, by reason of their overseas service, were not free to appear before a regular naturalization court in the United States. The district court expressly found that the petitioner had never been advised of his right to be naturalized while he was on active duty with the United States Army, the only time during which he could have qualified under section 702, and that he would have applied had he known of the opportunity and were the means available for him to apply. The trial court concluded that the Immigration Service failed in its duty to effectuate the provisions of section 702, and thus deprived the petitioner of a fair opportunity to apply for naturalization. Acting on principles of equity, the trial court held that the government should be estopped from alleging that the filing deadline in section 701 has passed or that 8 U.S.C. § 1421(e) precludes this petition, and that therefore, the petitioner should not be barred from citizenship by the late filing of this petition. We agree.

Petitioner, a native of the Philippines, enlisted in the United States Army, Philippine Scouts, in 1941. The Scouts were always a part of the Army of the United States, as contrasted with the army of the Commonwealth of the Philippines, a much larger group organized by and under the control of the Philippine Government. The Scouts were dispersed during the Japanese occupation of the islands, but when the United States Army returned, petitioner rejoined and served until his discharge on December 6, 1945. After spending some time at his mother's home in the outlying provinces, petitioner alleges that he first learned that he had missed any naturalization opportunity when he returned to Manila late in 1946 or early 1947. A letter of inquiry to the American Embassy produced a mimeographed answer informing him only that the quota on those born in the Philippines was heavily oversubscribed.

Due to the Japanese occupation of the island, naturalization under section 702 had been delayed until 1945. Following resolution of eligibility questions in early 1945, authorization was sent to an American vice-consul to commence naturalization proceedings. The Commissioner of Immigration, in a letter of September 13, 1945, indicated that this authority had not yet been exercised. Additionally, he noted political considerations that some officials of the Philippine Government were voicing in making objections to Filipino naturalizations. He suggested to the Attorney General that the situation might best be handled by revoking the authority of the then Naturalization Examiner and "omitting to designate" any successor. The result of this of course, was to render section 702 completely ineffective. Subsequently, revocation of authority was sent, and naturalizations ceased October 27, 1945. A naturalization examiner was later sent to the Philippines, in August of 1946, about a year after the war had ended and some eight months after petitioner's discharge. This decision appears to have had some basis in the Service's conclusion that members of the Philippine Commonwealth Army were no longer eligible for naturalization under section 702. The determination did not affect the much smaller number of Philippine Scouts, and many Scouts who had re-enlisted or who were still on active duty were then naturalized.

Petitioner alleges that at no time prior to his discharge was he ever made aware of his eligibility for naturalization under section 702. The Army had a regulation requiring that notice be given aliens, at the time of their induction or enlistment, of their rights to apply for naturalization, and requiring a notation to that effect in the alien's service record. Petitioner had enlisted before this regulation took effect; it is not clear whether this notice was required to have been given when he rejoined the Army upon its return to the islands in 1945. It is not disputed that at no time were notices posted on his unit's bulletin board, application forms distributed, announcements made to his unit, nor were any notations made in his service record to indicate that petitioner had been told about the law.3

Section 705 was not discretionary but imposed a legal duty upon the Commissioner of Immigration to make the benefits of sections 701 and 702 available to all qualified applicants. The duty to this petitioner was to make a representative available to naturalize non-citizen applicants while they were still serving in the armed forces. As the district court found, by revoking the authority of the only representative who could have naturalized the petitioner while he was still in the army, the Service failed in its duty to carry into effect the purposes of section 702, and thus denied petitioner of a fair opportunity to apply for naturalization during the only time he could apply.

The government argues that a broad amount of...

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10 cases
  • Santiago v. Immigration & Naturalization Service
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 31, 1975
    ...We find no "affirmative misconduct" on the facts now before us. In Hibi the Supreme Court reversed a decision of this circuit, 475 F.2d 7 (9th Cir. 1973), which had held the Government to be estopped from asserting delay in filing as a basis for rejecting a petition for naturalization. Hibi......
  • Omni Packaging, Inc. v. USINS
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 20, 1996
    ...generally or with respect to immigration matters. Plaintiffs' counsel even goes so far as to cite United States Immigration and Naturalization Serv. v. Hibi, 475 F.2d 7 (9th Cir.1973), on page nine of the motion for judgment (docket No. 25) — a case in which the Court of Appeals held that t......
  • Immigration and Naturalization Service v. Pangilinan Immigration and Naturalization Service v. Manzano
    • United States
    • U.S. Supreme Court
    • June 17, 1988
    ...provision. See Mendoza v. United States, 672 F.2d 1320 (CA9 1982), rev'd, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984); INS v. Hibi, 475 F.2d 7 (CA9), rev'd, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). In part because the decision below was in direct conflict with the Second Circuit......
  • Sun Il Yoo v. Immigration and Naturalization Service
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 2, 1976
    ...this court's earlier opinion in that case, we too noted that the government's conduct was "in derogation of (its) duty." INS v. Hibi, 475 F.2d 7, 11 (9th Cir. 1973). Despite this type of conduct on the part of the government, the Supreme Court refused to apply an estoppel against the Weighi......
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