Olegario v. U.S.

Decision Date16 July 1980
Docket NumberD,No. 717,717
Citation629 F.2d 204
PartiesPetition for Naturalization of Antonio OLEGARIO, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. ocket 79-6179.
CourtU.S. Court of Appeals — Second Circuit

Daniel M. Gillen, New York City (Glassman & Elias, Steven Elias and Edward Bernstein, New York City, of counsel), for petitioner-appellee.

Robert S. Groban, Jr., Sp. Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty. for the Southern District of New York, Michael H. Dolinger, Asst. U. S. Atty., New York City, of counsel), for respondent-appellant.

Association of Immigration and Nationality Lawyers (Jack Wasserman, Washington, D. C., and Donald L. Ungar, San Francisco, Calif., of counsel), amicus curiae.

Before OAKES, Van GRAAFEILAND, Circuit Judges, and TENNEY, District Judge. *

TENNEY, District Judge:

The historical and political events giving rise to this appeal began almost four decades ago at the beginning of the United States' involvement in World War II. In response to the deteriorating situation in the Pacific, President Roosevelt issued an order on July 26, 1941 calling all organized military units of the Commonwealth of the Philippines into the armed forces of the United States. On March 27, 1942, Congress amended the Nationality Act of 1940, Pub.L. No. 76-853, 54 Stat. 1137 ("the 1940 Act"), to provide for the naturalization of non-citizens who served in the United States armed forces, Second War Powers Act, Pub.L. No. 77-507, § 1001, 56 Stat. 182. 1 Section 701 exempted certain noncitizen servicemen who served outside the continental United States from some of the usual naturalization requirements, such as a period of residence in this country and literacy in English. Section 702 provided for the overseas naturalization of persons eligible under section 701 who were in active service in the United States military and were not within the jurisdiction of any court authorized to naturalize aliens. Section 705 directed the Commissioner of Immigration and Naturalization ("Commissioner"), with the approval of the Attorney General, to prescribe and furnish forms and make such rules and regulations as were necessary to implement the Act. As amended by subsequent statutes, the 1940 Act ultimately specified that all naturalization petitions filed under section 701 had to be submitted by December 31, 1946. Act of Dec. 28, 1945, Pub.L. No. 79-270, § 202(c)(1), 59 Stat. 658. 2

Pursuant to the Act, Immigration and Naturalization Service (INS) officers were sent to overseas military posts to naturalize noncitizen 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 Pacific naturalizing thousands of foreigners. Matter of Naturalization of 68 Filipino War Veterans, 406 F.Supp. 931, 935 (N.D.Cal.1975) (hereinafter cited as 68 Veterans). Although the Act could not be effectuated in the Philippines during the Japanese occupation, from 1942 to 1945, approximately 7,000 Filipinos were naturalized in the United States or at military posts outside the Philippines. Memorandum for the Attorney General from Assistant Solicitor General Hugh B. Cox, dated June 23, 1945 ("Cox Memorandum"), at 2. Implementation of the Act commenced there following the liberation of the Philippines and the resolution of statutory interpretation questions concerning the eligibility of Filipino servicemen under section 701-702. 3 In August 1945, George H. Ennis, Vice Consul of the United States at Manila, was designated to naturalize aliens under the Act and naturalizations in the Philippines began.

The Philippines were scheduled to become an independent, self-governing country on July 4, 1946, less than one year after Vice Consul Ennis began naturalizing eligible Filipinos. See Philippine Independence Act of 1934, Pub.L. No. 73-127, § 10(a), 48 Stat. 463. Apparently, the Philippine government feared that a mass emigration of newly naturalized Filipinos to the United States would drain the country of much needed manpower and thwart post-war reconstructive efforts. See Memorandum to Ugo Carusi, INS Commissioner, from Edward J. Shaughnessy, Special Assistant to the Commissioner, dated October 19, 1945 ("Shaughnessy Memorandum I"), at 1. This concern was conveyed to the United States Department of State which passed the information on to the Commissioner. On September 13, 1945, the Commissioner wrote to the Attorney General:

The Philippine Government again has expressed to the Department of State its concern because Filipino members of the armed forces of the United States are being naturalized even though they have always been domiciled in the Philippine Islands. . . . In view of the concern expressed by the Philippine Government, it is my belief that the situation might best be handled by revoking the authority previously granted to Mr. Ennis and by omitting to designate any representative authorized to confer citizenship in the Philippine Islands. This course would eliminate a source of possible embarrassment in our dealings with the Philippine people, who probably will be awarded independence in the near future.

Memorandum to Tom C. Clark, Attorney General, from Ugo Carusi, INS Commissioner, dated September 13, 1945 ("Carusi Memorandum"), at 2. The Attorney General adopted the Commissioner's recommendation on September 26, 1945 and revoked Vice Consul Ennis's naturalization authority. Notice of the revocation did not reach him for several weeks, however, and Ennis continued to naturalize aliens until October 26, 1945. 68 Veterans, supra, 406 F.Supp. at 936. As succinctly stated in an internal INS memorandum, the revocation of the Vice Consul's naturalization authority created "the rather anomalous situation that while we recognize in law the legal right of these persons to the benefits under the Act we have, from an administrative standpoint, made it impossible for such persons to acquire these benefits." Shaughnessy Memorandum I, at 1.

Several months after the Philippines lost its naturalization representative, Congress enacted a statute that appropriated funds for the Philippine Army and provided that service in that Army, pursuant to President Roosevelt's 1941 order, was not to be deemed service in the United States armed forces. First Supplemental Surplus Appropriation Rescission Act of February 18, 1946, Pub.L. No. 79-301, 60 Stat. 14. 4 The INS had previously concluded that service in the Philippine Army satisfied the section 701 naturalization requirement of active service in the United States armed forces. In response to this new piece of legislation, the INS reversed its earlier position and adopted the view that Filipinos inducted into the Commonwealth Army under the President's military order were not eligible for naturalization under the 1940 Act because they had not served in the United States military. Memorandum to T. B. Shoemaker, Acting INS Commissioner, from L. Paul Winings, General Counsel, dated July 10, 1946. 5 This statute presumably did not affect the eligibility of Filipinos who individually joined the United States military subsequent to the "mass enrollment" provoked by the President's order. See Memorandum to Ugo Carusi, INS Commissioner, from L. Paul Winings, General Counsel, dated February 5, 1945 (discussing eligibility of each group of servicemen prior to enactment of the appropriations statute). However, the INS's interpretation of this provision greatly reduced the number of Filipino servicemen who could qualify for citizenship under sections 701-702. Government's Brief at 8.

The INS appointed a new naturalization representative for the Philippines, P. J. Phillips, who began processing petitions in August 1946. From that time until the Act expired (December 31, 1946), Phillips naturalized approximately 4,000 Filipinos pursuant to section 702. 68 Veterans, supra, 406 F.Supp. at 936. No INS official was present in the Philippines to implement the Act during the nine month period after Ennis's naturalization authority was revoked and before Phillips was appointed.

Petitioner Antonio Olegario, a sixty-one year old Philippine citizen, served in the Army of the Commonwealth of the Philippines from December 20, 1941 to December 2, 1945. 6 Although Olegario was eligible to apply for naturalization during the brief two to three month period that Ennis served as an INS representative in the Philippines, he did not take any action in this matter. Of course, his inaction is not surprising since many Filipino soldiers, isolated and imprisoned during the Japanese occupation, were unaware of the opportunity to apply for naturalization. See In Re Petition for Naturalization of Neria, No. 67485, slip op. at 25-26 (Aug. 29, 1979) (hereinafter, Petition of Neria ). Ennis's naturalization authority was effectively revoked on October 26, 1945. The petitioner remained eligible for naturalization under the 1940 Act until December 2, 1945 when his service in the Philippine Army ended. Therefore, for about five weeks from October 26th to December 2d, Olegario apparently qualified for United States citizenship, but no INS representative was present in the Philippines to accept his petition.

Olegario concedes that he neither filed a timely naturalization petition nor made any attempt to do so. He contends, however, that his constitutional rights were violated by "the arbitrary action of the Commissioner . . ., with the approval of the Attorney General, which resulted in the removal of the Vice Consul from the Philippines during 1945-46 . . . and precluded petitioner, and Filipino servicemen similarly situated, from exercising the opportunity to become naturalized pursuant to Sections 701-702 of the (Act)." Brief of Petitioner-Appellee ("Petitioner's Brief"), at 25. The district court agreed with this contention and, reversing a decision rendered...

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