IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. BONIFACIO LORENZANA MANZANO No. 86-2019 In the Supreme Court of the United States October Term, 1986 The Solicitor General, on behalf of the Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-3a) is unreported. The opinion of the district court (App., infra, 8a-10a) is also unreported. The findings and recommendations of the designated naturalization examiner (App., infra, 11a-38a) are likewise unreported. JURISDICTION The judgment of the court of appeals (App., infra, 4a) was entered on September 26, 1986. A petition for rehearing was denied on February 19, 1987 (App., infra, 5a). On May 5, 1987, Justice O'Connor extended the time within which to file a petition for a writ of certiorari to and including June 19, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 1. Sections 701, 702, and 705 of the Nationality Act of 1940, as amended by the Second War Powers Act, 1942, ch. 199, Section 1001, 56 Stat. 182-183, 8 U.S.C. (Supp. V 1945) 1001, 1002 and 1005, provided in pertinent part: /1/ Section 701. * * * (A)ny person not a citizen, regardless of age, who has served or hereafter serves honorably in the military or naval forces of the United States during the present war and Who shall have been at the time of his enlistment or induction a resident thereof and who (a) was lawfully admitted into the United States, including its Territories and possessions, or (b) having entered the United States, including its Territories and possessions, prior to September 1, 1943, being unable to establish lawful admission into the United States serves honorably in such forces beyond the continental limits of the United States or has so served may be naturalized upon compliance with all the requirements of the naturalization laws except that (1) no declaration of intention, no certificate of arrival for those described in group (b) hereof, and no period of residence within the United States or any State shall be required; (2) the petition for naturalization may be filed in any court having naturalization jurisdiction regardless of the residence of the petitioner; (3) the petitioner shall not be required to speak the English language, sign his petition in his own handwriting, or meet any educational test; * * * . Provided, however, That * * * (3) the petition shall be filed not later than December 31, 1946. * * * (emphasis in original). Section 702. During the present war, any person entitled to naturalization under section 701 of this Act, who while serving honorably in the military * * * forces of the United States is not within the jurisdiction of any court authorized to naturalize aliens, may be naturalized in accordance with all the applicable provisions of section 701 without appearing before a naturalization court. 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, which designated representative is hereby authorized to receive such petition in behalf of the Service, to conduct hearings thereon, to take testimony concerning any matter touching or in any way affecting the admissibility of any such petitioner for naturalization, to call witnesses, to administer oaths, including the oath of the petitioner and his witnesses to the petition for naturalization and the oath of renunciation and allegiance prescribed by section 335 of this Act, and to grant naturalization, and to issue certificates of citizenship; * * * . Section 705. The Commissioner, with the approval of the Attorney General, shall prescribe and furnish such forms and shall make such rules and regulations, as may be necessary to carry into effect the provisions of this Act. 2. Section 310(e) of the Immigration and Nationality Act of 1952, as added, Act of Sept. 26, 1961, Pub. L. No. 87-301, Section 17, 75 Stat. 656, 8 U.S.C. 1421(e) provides: Notwithstanding the provisions of section 405(a) /2/ any petition for naturalization filed on or after September 12, 1961, shall be heard and determined in accordance with the requirements of this subchapter. QUESTION PRESENTED Whether a Philippine veteran of World War II, whose opportunity to apply for American citizenship under greatly liberalized conditions expired in December 1946, is nonetheless currently entitled to citizenship because, during a nine-month period between October 1945 and August 1946, there was no designated examiner stationed in the Philippines to whom he could have applied for naturalization. STATEMENT 1. Respondent is a Philippine veteran of World War II who, on April 14, 1983, filed a petition for naturalization under Section 701 of the Nationality Act of 1940 (the 1940 Act or the Act), 8 U.S.C. (Supp. V 1945) 1001, as added by the Second War Powers Act, 1942, ch. 199, Section 1001, 56 Stat. 182 (repealed by Section 403(a)(42) of the 1952 Act, 66 Stat. 280) (App., infra, 2a, 8a, 11a). Under this Section, aliens who served in the American Armed Forces during World War II were permitted to apply for citizenship under greatly liberalized conditions. As part of the program, servicemen on active duty outside the United States were allowed under Section 702 of the Act to obtain naturalization overseas by applying to special examiners designated by the Commissioner of Immigration and Naturalization. As amended by Section 1(c)(1) of the Act of Dec. 28, 1945, ch. 590, 59 Stat. 658, Section 701 specified that any petition submitted thereunder had to be filed no later than December 31, 1946. /3/ Respondent made no effort to apply for overseas naturalization while on active duty in the Philippines (App., infra, 8a, 12a, 37a). In July 1946, after completing his service, he inquired at the American Embassy in the Philippines about the possibility of obtaining citizenship but was told that there was no longer anyone present to assist him (id. at 12a). Respondent then waited 37 years before applying for citizenship under the 1940 Act. Notwithstanding this delay, he contends that he should now be granted citizenship because, during a nine-month period between October 1945 and August 1946, there was no designated official in the Philippines to whom he could have applied for naturalization. 2. In May 1984, the naturalization examiner submitted to the district court his recommendation that respondent's petition for naturalization be denied (App., infra, 11a-38a). /4/ The district court agreed with that recommendation and denied the petition (id. at 8a-10a). /5/ Respondent appealed the district court's order. On December 11, 1984, the court of appeals ordered that the submission of the appeal be withheld pending the decision of that court in Pangilinan v. INS, C.A. No. 80-4543, a case raising the same issue (App., infra, 7a). /6/ On August 11, 1986, the court ruled in Pangilinan that the government had violated the 1940 Act by withdrawing naturalization authority from the Philippines for nine months and that the Filipino veterans in the case were entitled to citizenship as an equitable remedy (796 F.2d 1091). On the same date, the appeal in the present case was submitted. Characterizing the present case as "nearly identical" to Pangilinan (App., infra, 2a), the court reversed the district court and remanded "for reconsideration consistent with" that case (id. at 1a-3a). The government subsequently filed for rehearing en banc in Pangilinan, and it also filed a protective petition for rehearing in the present case. The panel in this case stayed the disposition of the rehearing petition pending the resolution of the petition in Pangilinan (App., infra, 6a). On February 13, 1987, the court denied the petition in Pangilinan (Pangilinan Pet. App. 28a-29a). Six days later, it denied rehearing in this case (App., infra, 5a). REASONS FOR GRANTING THE PETITION The question presented in this case is identical to the one presented in INS v. Pangilinan, petition for cert. pending, No. 86-1992, i.e., whether Philippine veterans of World War II are entitled to citizenship because of the nine-month absence of a designated examiner in the Philippines during 1945 and 1946. In Pangilinan, the court of appeals ordered that the Philippine veterans in the case be granted citizenship as an equitable remedy for the government's withdrawal of naturalization authority in the Philippines (Pangilinan Pet. App. 1a-21a). As we argue in our Pangilinan petition (at 17-21), the revocation of the naturalization examiner's authority was a permissible exercise of Executive Branch discretion and did not violate the 1940 Act. In any event, we explain (id. at 21-28), Philippine veterans who did not apply for citizenship while on active duty overseas are not entitled to equitable relief under a statute that expired more than 40 years ago. Because the Court's disposition of the petition in Pangilinan should control the present case, it would be appropriate for the Court to hold this case pending its decision in Pangilinan. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the disposition of the petition in INS v. Pangilinan, No. 86-1992. Respectfully submitted. CHARLES FRIED Solicitor General JUNE 1987 /1/ The Nationality Act of 1940 was repealed by Section 403(a)(42) of the Immigration and Nationality Act of 1952 (the 1952 Act), ch. 477, 66 Stat. 280. /2/ Section 405(a) of the 1952 Act (66 Stat. 280) was a general savings clause that preserved the legal effectiveness of certain acts taken under provisions of prior law that were in other respects superseded by that Act. /3/ A detailed discussion of Sections 701-702, including prior litigation by Filipino veterans seeking citizenship under those provisions, is contained in our petition for a writ of certiorari (at 3-7) in INS v. Pangilinan, No. 86-1992, a copy of which has been provided to respondent. /4/ The examiner concluded that (1) respondent's claim is barred by Section 310(e) of the 1952 Act, 8 U.S.C. 1421(e), which precludes naturalization under expired or superseded statutory provisions; (2) the claim is barred by laches; (3) the claim is nonjusticiable because the withdrawal of naturalization authority from the Philippines was an exercise of the Executive Branch's exclusive authority in the field of foreign policy; (4) respondent's loss of an opportunity for naturalization was not the result of intentional, unjustified, or invidious discrimination by the United States government and therefore did not constitute a denial of due process; and (5) the claim is barred by this Court's decision in INS v. Hibi, 414 U.S. 5 (1973). /5/ The court rejected the government's argument that respondent's claim is barred by laches (App., infra, 9a). Nonetheless, relying on the Second Circuit's decision in Olegario v. United States, 629 F.2d 204 (1980), cert. denied, 450 U.S. 980 (1981), it held that the Attorney General, in withdrawing naturalization authority from the Philippines for nine months in response to concerns voiced by Philippine officials about a manpower drain, had acted within the scope of the 1940 Act (App., infra, 8a-9a). /6/ The order stated that submission was withheld "pending decision in Barretto v. United States, No. 80-4543." No. 80-4543 is the court's docket number for Pangilinan; Barretto is the name under which a prior consolidated decision was issued and reported. See Pangilinan Pet. 10 n.18. APPENDIX