MATTER OF NATURALIZATION OF 68 FILIPINO WAR VETS.

• Decision Date: 01 December 1975
• Docket Number: No. 186373.,186373.
• Court: U.S. District Court — Northern District of California
• Parties: In the Matter of Petitions for NATURALIZATION OF 68 FILIPINO WAR VETERANS Pursuant to Sections 701-702, Nationality Act of 1940.

406 F. Supp. 931

In the Matter of Petitions for NATURALIZATION OF 68 FILIPINO WAR VETERANS Pursuant to Sections 701-702, Nationality Act of 1940.

No. 186373.

United States District Court, N. D. California.

November 10, 1975.

Addendum December 1, 1975.

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Phelan, Simmons & Ungar, by Donald L. Ungar, Fallon, Hargreaves, Bixby & McVey, by Gerald L. McVey, Alan M. Kaufman, Joseph S. Hertogs, San Francisco, Cal., for various petitioners.

Byron B. Park, San Francisco, Cal., for Alejandro Acain Quijano.

Philip Leadbetter, Brian H. Simpson, San Francisco, Cal., for the Immigration and Naturalization Service.

Alexander Esclamado, Publisher, Philippine News, San Francisco, Cal., amicus curiae for petitioners.

MEMORANDUM OF OPINION

RENFREW, District Judge.

Petitioners are 68 Filipinos whose petitions for naturalization pursuant to Sections 701-705 of the Nationality Act of 1940, ch. 199, 56 Stat. 182 et seq., as amended, 8 U.S.C. §§ 1001-1005 (1940 ed. Supp. V), were denied by the Immigration and Naturalization Service (INS). Petitioners, who have lived in the United States for varying lengths of time, chiefly as "visitors," claim to have served honorably in the United States armed forces during the Second World War via service in the Commonwealth Army of the Philippines or the Philippine Scouts. They maintain that their petitions for naturalization should have been granted by the INS despite expiration of the law on which their eligibility is founded and now ask the Court to grant their petitions. The Court's jurisdiction is based on 8 U.S.C. § 1421(a).

This matter has a complex historical background, but the basic facts are generally undisputed.¹ On March 27, 1942, Sections 701-705 were added to the Nationality Act of 1940 by the Second War Powers Act of 1942, ch. 199, 56 Stat. 176 et seq., as amended. Section 701 exempted alien servicemen who served outside the continental limits of the United States from certain of the usual requirements for naturalization, including those of a period of residence in the United States and literacy in English. As amended by subsequent acts of Congress, it was ultimately specified that all petitions filed under Section 701 had to be filed no later than December 31, 1946. Section 702 provided for the naturalization overseas of persons eligible for naturalization under Section 701 who, while serving honorably in the military or naval forces of the United States, were not within the jurisdiction of any court authorized to naturalize aliens. Section 705 directed the Commissioner of Immigration and Naturalization, with the approval of the Attorney General, to make such rules and regulations as were necessary to carry into effect the provisions of the Act.²

Pursuant to the Act, officers of the INS were sent to overseas military posts to effect the naturalization of eligible members of the United States armed forces. Between 1943 and 1946, these officers traveled from post to post through England, Iceland, North Africa, and the islands of the Pacific, naturalizing thousands of foreign nationals. In the Philippines, of course, naturalization of alien servicemen was impossible during the Japanese occupation. However, with the liberation of the Philippines, implementation of the Act commenced, following resolution of two preliminary problems of statutory interpretation concerning the eligibility of Filipino servicemen under Sections 701-702.³ In early August of 1945 the INS designated Mr. George H. Ennis, Vice Consul of the United States at Manila, to naturalize aliens pursuant to Section 702.

Pursuant to Section 10(a) of the Philippine Independence Act of 1934, ch. 84, 48 Stat. 463, the Philippines were to become a fully independent, self-governing country on July 4, 1946. Apparently fearful that large numbers of Filipinos would be naturalized and emigrate to the United States on the eve of independence, an unidentified official of the Philippine Government conveyed to the United States Department of State the Philippine Government's concern that Filipinos who had always been domiciled in the Philippines were being naturalized by Vice Consul Ennis.⁴ Based on this concern, on September 13, 1945, the Commissioner of the INS wrote to the Attorney General requesting that the authority previously granted to Vice Consul Ennis to naturalize aliens be revoked, and that no new naturalization officer be named.⁵ The Attorney General approved this request on September 26, 1945, and the authority of Vice Consul Ennis was immediately revoked. However, notice of that revocation did not reach Ennis until late October, 1945, for he continued to naturalize aliens until October 26, 1945. It was not until August, 1946, that another naturalization agent, Mr. P. J. Phillips, was appointed for the Philippines. Approximately 4000 Filipinos were naturalized by Mr. Phillips under Section 702 between August and December 31, 1946, when the Act expired. Thus, contrary to the express intentions of Congress, Filipinos eligible for naturalization under Section 702 were denied the opportunity to take advantage of the Act for a period of approximately nine months.⁶

Petitioners urge that the foregoing events establish a violation of their right to due process of law and therefore the Court should now grant their petitions for naturalization. All parties are aware of the recent Supreme Court decision, INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), where the Court, in denying the petition for naturalization of a Filipino who had served in the Philippine Scouts, refused to estop the Government from relying on the December 31, 1946, expiration date of Sections 701-705. In the instant case petitioners seek to distinguish Hibi as a narrow holding, whereas the Government contends that Hibi is controlling and mandates denial of these petitions.

Originally the Court divided petitioners into four categories based on factual differences in their cases. Subsequently, Category II cases, in which there were claims of new evidence of affirmative misconduct on the part of the INS, see INS v. Hibi, supra, 414 U.S. at 8-9, 94 S.Ct. 19, were reassigned to the other categories, and Category II was eliminated. The three remaining categories, and the issues they present, are as follows:⁷

Category I. Eight petitioners argue that they did all they could in 1945 and 1946 to become naturalized under Section 702 and that they should be considered to have "constructively filed" petitions for naturalization pursuant to the statutory requirements. They further argue that the action of the INS in their cases constitutes affirmative misconduct which estops the Government from relying on the expiration date of Sections 701-705.

Category II. Fifty-three petitioners did not take any timely steps to be naturalized before December 31, 1946, while in the American armed forces. However, these petitioners contend that they were denied due process of law by the failure of the INS to make naturalization under Section 702 available to them when it was available to other servicemen similarly situated around the world.

Category III. Seven petitioners are in the same position as those in Category II, except that they have not shown that they have served in the United States armed forces as required by Section 701. These petitioners argue that proof of service requirements should be liberally construed to allow alternatives to the statutory requirements.

CATEGORY I

The petitioner for naturalization in INS v. Hibi, supra, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7, served in the Philippine Scouts during World War II and was discharged in December, 1945. At no time during his service in the United States armed forces did Hibi attempt to avail himself of the opportunity to become naturalized under the expedited procedures of Section 702. He entered the United States for the first and only time on April 25, 1964, on a visitor-for-business visa and subsequently filed a petition for naturalization based on Section 702. Hibi argued that the Government was estopped from relying on the statutory time limit because it failed to advise him, during the time he was eligible of his right to naturalization and failed to provide a naturalization representative in the Philippines during all the time he was eligible for naturalization.

The Supreme Court held that, although Montana v. Kennedy, 366 U.S. 308, 314-315, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961), had left open the question whether "affirmative misconduct" (rather than mere neglect) on the part of the Government might estop it from denying citizenship, the Government conduct complained of in Hibi did not rise to the level of affirmative misconduct. 414 U.S. at 8-9, 94 S.Ct. 19. It is clear then that, as the Court of Appeals for the Ninth Circuit concluded in construing Hibi, since no such conduct was involved in that case, "the Court did not preclude invoking estoppel against the government." United States v. Wharton, 514 F.2d 406, 410 (9 Cir. 1975).⁸

Other courts have provided this Court with little guidance in deciding what constitutes "affirmative misconduct" on the part of the Government sufficient to give rise to estoppel. In Montana v. Kennedy, supra, 366 U.S. at 314-315, 81 S.Ct. 1336, the Supreme Court suggested, without deciding, that estoppel might lie against the Government under the circumstances presented in Lee You Fee v. Dulles, 236 F.2d 885 (7 Cir. 1956), rev'd 355 U.S. 61, 78 S.Ct. 138, 2 L.Ed.2d 106 (1957) (tardiness or unnecessary delay by Government officials in enabling alien to comply with condition of citizenship; dicta), and Podea v. Acheson, 179 F.2d 306 (2 Cir. 1950) (erroneous advice by State Department). More recently, the Court of Appeals for this Circuit distinguished Hibi on the grounds that that case concerned governmental "nonfeasance" as opposed to governmental "misfeasance":

"`Nonfeasance' and `misfeasance' are indeed

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