Opposition — Olegario v. United States

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No. 80-782

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In the Supreme Court of the Hnited States

OcToBER TERM, 1980

ANTONIO OLEGARIO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WaApDE H. McCREE, JR.

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

DaviD B. SMITH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

at Oe eee eee =

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-782

ANTONIO OLEGARIO, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the temporary withdrawal of naturalization

authority from the American Vice-Consul in Manila in

1945 deprived petitioner of any constitutional or statutory

right to apply for naturalization under the terms of the

Nationality Act of 1940, as amended by the Second War

Powers Act of 1942.

2. Whether petitioner is entitled to naturalization on the

ground that the Justice Department’s policy of not oppos-

ing petitions for naturalization submitted by similarly situ-

ated Filipino veterans before November 30, 1977, is

allegedly arbitrary and unfair to those, like himself, who

filed their petitions after that cut-off date.

TABLE OF CONTENTS

Page

GO 0 cos cs baey Cad ce bees s én eee be eee os I

POE ibe sk ese cess akbeked weds Sa eeenees I

eT Tey err err rey Te CTe Teer er eee eee l

SR ey aia ba Fires oo 000 8 'o-00 Vows ve ee ss yo eh alee es 4

Or er me re re kot eee et he 8

TABLE OF AUTHORITIES

Cases:

Automibile Club v. Commissioner,

i RG n 0k AS Ne be Ws eFC RRS 0 ane 8

Barrett v. United States, 423 U.S. 212 .......... 8

Confiscation Cases, 74 U.S. (7 Wall.) 454 ....... 8

ee ee er ee ee 7

Goldwater v. Carter, 444 U.S. 996 ........... 5-6

Harisiades v. Shaughnessy, 342 U.S. 580 ...... 5, 6

SEE Oe; GE ER Di awa ovb eee 8 Keer eee see 5

Kleindienst v. Mandel, 408 U.S. 753 .......... 6,7

Korematsu v. United States, 323 U.S. 214 ....... 7

Mackenzie v. Hare, 239 U.S. 299 ......ceeeeeee 5

Maitnews ¥. Diat, 426. U.S. G7 vesccccccccvecece 7

Narenji v. Civiletti, 617 F. 20 745... ccccccccces 6

Naturalization of Antolin Punsalan Pangiliman,

In re, No. (N.D. Cal. Sept. 22, 1980),

appeal pending, No. 80-4543 (9th Cir.) ........ 7

Naturalization of Munoz, In re,

ES TUE Rake renew eeneeenees caeanes 3

III

_ PREVIOUS PAGE WAS BLANK |

IV

Page

Cases—Continued:

Naturalization of 68 Filipino War Veterans,

SO, SET MG SFE io icc cede tscuttevesé 7,8

Rinaldi v. United States, 434 U.S. 22 ........... 8

United States v. Batchelder, 442 U.S. 114 ....... 8

United States v. Caceres, 440 U.S. 741 .......... 8

United States v. Lovasco, 431 U.S. 783 ......... 7

Constitution and statutes:

United States Constitution, Fifth Amendment,

3c Lo NE tnt eh Sere ae 6-7

Act of Dec. 28, 1945, ch. 590, Section 202(c)(1),

SP CE waded énd40eewckbs cbt 1-2

First Supplemental Surplus Appropriation of

ae OO ee eae 3

Second War Powers Act of 1942, ch. 199,

56 Stat. 176 et seq.:

wocteom 701, 5G Bent: 062 oocéc vbw clncaw ed 3

seeon Fea, Se ek: TE eo sv vv ck koe Ss

mecteas Fas, Be Bt. 008 aos oe vereickbiteess l

section 1001, 56 Stat. 162 ...vccccciccton 3

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 38a-100a)

is reported at 629 F. 2d 204. The opinion of the district

court (Pet. App. la-37a) is reported at 473 F. Supp. 185.

JURISDICTION

The judgment of the court of appeals was entered on

August 11, 1980. On October 16, 1980, Justice Marshall

extended the time for filing a petition for writ of certiorari

to November 12, 1980, and the petition was filed on that

day. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. On July 26, 1941, in response to the deteriorating

situation in the Pacific, President Roosevelt issued an order

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 (“the Act”) to provide for the naturalization of

noncitizens who served in the United States armed forces.

See Second War Powers Act of 1942, ch. 199, Section 1001,

56 Stat. 182. Section 701 of that Act, 56 Stat. 182exempted

certain noncitizen servicemen who served outside the con-

tinental United States from some of the usual naturaliza-

tion requirements, such as a period of residence in this

country and literacy in English. Section 702, 56 Stat. 182,

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, 56 Stat.

183,directed the Commissioner of Immigration and Natu-

ralization (“Commissioner”) to make rules and regulations

to implement the Act. As amended by subsequent statutes,

the 1940 Act specified that all naturalization petitions filed

2

under Section 701 had to be submitted by December 31,

1946. Act of Dec. 28, 1945, ch. 509, Section 202(c)(1), 59

Stat. 658 (Pet. App. 40a-42a, 47a).

Pursuant to the Act, Immigration and Naturalization

Service officers were sent to overseas military bases to

naturalize noncitizen members of the United States armed

forces. Although the Act could not be effectuated in the

Philippines during the Japanese occupation, approx-

imately 7000 Filipinos were naturalized in the United States

or at military posts outside the Philippines. In August 1945,

following the liberation of the Philippines, George H.

Ennis, Vice Consul of the United States at Manila, was

designated to naturalize aliens under the Act, and naturali-

zations in the Philippines began. !

The Philippines were scheduled to become an independ-

ent country on July 4, 1946. The Phillippine government

feared that a mass emigration of newly naturalized Filipi-

nos would deprive the country of much needed manpower

and thwart post-war reconstruction efforts. This concern

was conveyed to the State Department which passed on the

information to the Commissioner. The Commissioner, in

turn, recommended 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”

(Pet. App. 44a). Thereafter, the Attorney General revoked

Vice Counsel Ennis’s naturalization authority and Ennis

stopped naturalizing aliens after October 26, 1945 (Pet.

App. 43a-44a).

'There was a serious question as to whether service in the Army of the

Philippine Commonwealth pursuant to the President’s 1941 Order

qualified as service in the United States armed forces for purposes of the

Act. That issue was initially resolved by the government in favor of the

Philippine veterans, thus permitting the commencement of naturaliza-

tion proceedings in the Philippines (Pet. App. 43a & n.3).

3

Several months later, Congress enacted the First Sup-

plemental Surplus Appropriation Recision Act of 1946. See

ch. 30, 60 Stat. 14. In relevant part, this statute provided

that service in the Philippine Army pursuant to President

Roosevelt’s 1941 Order

shall not be deemed to be or to have been service in the

military or naval forces of the United States or any

component thereof for the purposes of any law of the

United States conferring rights, privileges, or benefits

upon any person by reason of the service of such per-

son or the service of any other person in the military or

naval forces of the United States * * * .

Pet. App. 45a n.4. Accordingly, in July 1946, INS reversed

its previous position and henceforth viewed Filipinos

inducted into the Commonwealth Army under the Presi-

dent’s 1941 Order as not eligible for naturalization under

the Act. See Pet. App. 43a & n.3, 46a & n.5.2 This new

interpretation of the Act greatly reduced the number of

Filipino servicemen who could qualify for citizenship under

Sections 701 and 702 (Pet. App. 46a-47a).3

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 on December 31, 1946, Phillips naturalized approx-

imately 4000 Filipinos pursuant to Sections 701 and 702.

?The INS maintained this new position until 1957. See In re Naturali-

zation of Munoz, 156 F. Supp. 184 (N.D, Cal. 1957).

‘It appears that only members of the Philippine Scouts, a United

States Army unit with relatively small enlistment, and Filipinos who

had individually enlisted in the regular United States armed forces,

remained eligible for administrative naturalization under the July 1946

interpretation of the law.

4

No INS official was present in the Philippines to implement

the Act during the nine month period after Ennis’s author-

ity was revoked and before Phillips was appointed.

2. Petitioner is a 61-year-old Philippine citizen who

served in the Army of the Commonwealth of the Philip-

pines from December 20, 1941 to December 2, 1945. Until

his discharge, he was deemed eligible for naturalization

under then governing regulations, and he had an actual

opportunity to apply during the two to three month period

that Ennis served as an INS representative in the Philip-

pines in 1945.4 But petitioner took no action. Nor is there

any suggestion that he attempted to assert his statutory

right during the ensuing five weeks preceding his discharge

on December 2, 1945, nor, indeed, thereafter, until 1978.

Although conceding that he made no attempt to file a

timely naturalization petition, petitioner nonetheless con-

tended that his constitutional rights had been violated by

the revocation of Vice Consul Ennis’s naturalization author-

ity. The district court agreed with petitioner. Reversing a

decision rendered by an INS naturalization examiner, the

district court concluded that petitioner “had been denied

due process of law ina manner which could only be reme-

died by now admitting [him] to citizenship” (Pet. App. 48a)

and, accordingly, granted his petition for naturalization

(Pet. App. 29a-37a). The court of appeals reversed in an

extensive opinion upon which we rely (Pet. App. 38a-99a).

ARGUMENT

The exhaustive decision of the court of appeals is correct,

and does not conflict with any decision of this Court or of

any court of appeals. Moreover, the issues presented by

petitioner lack general and continuing significance. Accord-

ingly, further review by this Court is unwarranted.

4In this proceeding, the government has not challenged petitioner's

statutory eligibility because of his service in the Commonwealth Army,

rather than the United States Army. Pet. App. 46a n.5.

5

|. Petitioner first contends (Pet. 10-13) that the Attorney

General’s determination to suspend the post-war naturali-

zation process for nine months was an abuse of his discre-

tion under the Second War Powers Act. Although recogniz-

ing that the withdrawal of the Vice Consul’s naturalization

authority in 1945 temporarily frustrated Congress’s appar-

ent objective, the court of appeals correctly held that the

authority granted to the Executive to effectuate the Act

“necessarily included the right to exercise some discretion in

enforcing its provisions” (Pet. App. 83a). In the absence of

any statutory language to the contrary, the Act could not be

interpreted as reflecting an intent to deprive the Executive

of its traditional and inherent authority “to consider the

foreign affairs ramifications of a particular mode of enforce-

ment and to suspend implementation to avoid a confronta-

tion” with the Philippine government (id. at 84a). See Hari-

siades v. Shaughnessy, 342 U.S. 580, 589 (1952); Mackenzie

v. Hare, 239 U.S. 299, 311 (1915). Here, of course, the

Attorney General’s action was prompted by the strong

objections of the Philippine government concerning the

deleterious effects of a mass naturalization program on that

country’s war reconstruction efforts. Accordingly, the court

of appeals properly concluded (Pet App. 88a):

that the executive’s authority to implement the 1940

Act included the right to exercise discretion in the face

of a potential diplomatic conflict. The decision to

withdraw all naturalization authority from the Philip-

pine Islands for a nine month period was not a manifest

abuse of that discretion.

See also INS v. Hibi, 414 U.S. 5 (1973) (government’s

suspension of naturalization process in Philippines does not

give rise to estoppel).5

‘Indeed, in light of the foreign policy considerations underlying the

Attorney General's decision, it is questionable whether that determina-

tion is subject to judicial review at all. See Goldwater v. Carter, 444 U.S.

6

Petitioner’s constitutional claim is equally without merit.

Petitioner boldly suggests (Pet. 13-14) that the decision of

the Attorney General to suspend the naturalization of the

Filipinos was racially motivated. But, as we have outlined

above, history clearly shows that the Attorney General’s

action was prompted by considerations of international

diplomacy involving the unequivocal opposition of the Phi-

lippine government, and not racial animus (Pet. App. 43a-

47a).° In other words, the suspension of the naturalization

process was “justified in light of the express federal interest

in responding to the concerns voiced by the Philippine

Government” (id. at 98a), even though the Attorney Gener-

al’s decision may have adversely affected certain Filipino

servicemen. In light of these circumstances and the Execu-

tive’s broad discretion over issues of foreign policy and

national security, including immigration and naturalization

(see, e.g., Harisiades v. Shaughnessy, supra, 342 U.S. at

596; Kleindienst v. Mandel, 408 U.S. 753, 765-767 (1972)),

the court of appeals correctly concluded that petitioner,

who failed to file an application for citizenship for more

than 30 years, was not deprived of any rights under the Due

996, 1002-1006 (1979) (Rehnquist, J., concurring); Narenji v. Civiletti,

617 F. 2d 745 (D.C. Cir. 1979).

6Petitioner’s statement (Pet. 14-15) that the 35-year-old government

memoranda that form the bulk of the record in this case contain

“documented expressions of racial and ethnic prejudices” against Fil-

ipinos is unsubstantiated. Apart from the objections expressed by the

Philippine government, the only concerns reflected in any of the docu-

ments had to do with the enormous numbers of Filipinos who might

become eligible for admission to the United States, and the fiscal

problems that might ensue from paying military pensions and other

benefits to this large group of people. See Letter to Ugo Carusi, INS

Commissioner, from R. B. Shipley, Passport Division Chief, dated

April 17, 1946; Memorandum to T.B. Shoemaker from Edwin J.

Shaughnessy, Special Assistant to the Commissioner, dated April 26,

1946; Memorandum to Ugo Carusi, INS Commissioner, from Edwin J.

Shaughnessy, dated October 19, 1945.

7

Process Clause of the Fifth Amendment. See, e.g., Fiallo v.

Bell, 430 U.S. 787, 792-799 (1977); Mathews v. Diaz, 426

U.S. 67, 77-84 (1976); Korematsu v. United States, 323

U.S. 214 (1944). See also Kleindienst v. Mandel, 408 U.S.

753 (1972).?

2. Following the decision in Jn re Naturalization of 68

Filipino War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975),

the Department of Justice as a matter of internal litigation

policy determined not to oppose naturalization petitions

submitted by Filipino veterans before November 30, 1977—

the date on which the government decided not to pursue an

appeal in the 68 Filipino War Veterans case. Petitioner

argues (Pet. 18-22) that this policy is arbitrary and unfair to

those like himself who filed their petitions after the

November 30 cut-off date. At the outset we note that peti-

tioner failed to raise this claim in the court of appeals, and

thus it is not properly before the Court. See, e.g., United

States v. Lovasco, 431 U.S. 783, 788 n.7 (1977).8

’Petitioner relies (Pet. 7, 10-20) on In re Naturalization of 68 Filipino

War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975). But that case is

inconsistent with the thrust of this Court's decision in /NS v. Hibi,

supra. In Hibi, the Court rejected the claim that the government could

be equitably estopped from denying citizenship to another Filipino

serviceman, who, like petitioner, may have been disadvantaged by the

government's policy decision regarding waturalization in the Philip-

pines. Moreover, as the court of appeals observed (Pet. App. 93a), 68

Filipino War Veterans erroneously applied a strict scrutiny equal pro-

tection analysis rather than the rational relationship test that this Court

has applied in cases involving equal protection claims by aliens against

the federal government. See, e.g., Mathews Vv. Diaz, supra, 426 U.S. at

81-87. Finally, we note that subsequent to the decision in this case, the

Northern District of California has rejected its prior decision in 68

Filipino War Veterans and adopted the approach of the court of

appeals in this case. See /n re Naturalization of Antolin Punsalan

Pangilinan(N.D. Cal. Sept. 22, 1980), appeal pending, No. 80-4543 (9th

Cir.).

’The issue was raised in the brief of amici curiae.

8

In any event, the court of appeals correctly held that the

“government’s decision to pursue this appeal while not

contesting the petitions of other * * * applicants does not

deprive [petitioner] of due process of law” (Pet. App. 59a).

It is well setled that the government has broad discretion in

determining when to file cases or pursue appeals (see, e.g.,

United States v. Batchelder, 442 U.S. 114, 123-125 (1979);

Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868)), and is not

required to maintain a consistent stance in its litigation (see,

e.g., Barrett v. United States, 423 U.S. 212, 222 n.6 (1976);

Automobile Club v. Commissioner, 353 U.S. 180, 183

(1957)). Moreover, here, the Department’s prosecutorial

decision was predicated on considerations of fairness to

Filipino veterans who were then litigating their cases, and

not on invidious or improper grounds. Particularly since

petitioner was not then litigating his naturalization claim

and thus had no expectation that his belated claim would be

treated in the same manner as the 68 Filipino War Veterans

case, the Department’s internal litigation decision did not

trench on any protected right of petitioner’s. See United

States v. Caceres, 440 U.S. 741 (1979); cf. Rinaldiv. United

States, 434 U.S. 22 (1979) ( Petite policy).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

DAVID B. SMITH

Attorney

FEBRUARY 198]

DOJ-1981-02