Opposition Brief — Sanidad v. Immigration & Naturalization Service

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No. 94-1544

In the Supreme Court of the Unites States

OCTOBER TERM, 1994

LEONORA SANIDAD, ET AL., PETITIONERS

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREW S. DAYS, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

DAVID J. KLINE

CARL MCINTYRE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners are citizens of the United

States by virtue of their birth in the Philippine

Islands at a time when they constituted a territory of

the United States.

2. Whether Congress had the authority to classify

citizens of the Philippine Islands as “nationals” but

not citizens of the United States.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

American Ins. Co. vy. 356 Bales of Cotton, 26 U.S.

ROI ND pag iireriss cigs seleasencainmisacsetscnice, os. ce: ccs

Armstrong v. United States, 182 U.S. 243 (1901)...

Balzae vy. Porto Rico, 258 U.S. 298 (1922) ..................

De Lima vy. Bidwell, 182 U.S. 1 (1901) .........................

Dooley v. United States, 182 U.S. 222 (1901)

Dorr vy. United States, 195 U.S. 138 (1904)

Downes v. Bidwell, 182 U.S. 244 (1901) ................

Fourteen Diamond Rings v. United States, 183 US.

I RN pn Fass oc ties eccsasdescosdite ces dedas ics,

Hawaii vy. Mankichi, 190 U.S. 197 (1903)

Heff, In re, 197 U.S. 488 (1905) ........................... oeeeibeile

Hidemitsu Toyota vy. United States, 268 US. 402

UNUIND iaiPichsndticiict vinibeeuvddinandeicnenncch viens jandahdewievindabiedacwaks meine

Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945) ......

Kleindienst v. Mandel, 408 U.S. 753 (1972) ...................

Rabang v. Boyd, 353 U.S. 427 (1957) ................. spibesied

Rogers v. Bellei, 401 U.S. 815 (1971) ......0000.......-.---.

Summerfield v. INS, cert. denied, 115 S. Ct. 1427

Se irtlicienilecdbdiccasaabaSliccnds ales uecapuesubteets ukestsaiacsecessc. coos. ooo

United States v. Percheman, 32 U.S. (7 Pet.) 5]

RUN Situisetieanatabiekiniecdeomraepseiisénecssiacsdeesaacs ebadbthindinneniees

United States v. Verdugo-Urquidez, 494 U.S. 259

(1990)

1 -. x

IV

Constitution, treaties, and statutes: Page

U.S. Const. :

Art. I:

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§ 8, Cl. 18 (Necessary and Proper Clause) ........... 7

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SR. Fg es oe Oe scien esicdnteendbintarkaadadacmien abla daiaiieds 6

Amend. XIV, § 1, Cl. 1 (Citizenship Clause) ............. 3, 4,5

Treaty of Peace, Dec. 10, 1898, U.S.-Spain, 30 Stat.

1755:

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Fi ee x Ee sini snacinsinntcincanneksatetieminiinniaee 2

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Treaty of Apr. 30, 1808, U.S.-France, art. II], 8 Stat.

UN. ~ sksiiannbeeeaevhsbeamabicausdicbaxsanabtacenindiadddiaseasdanabeiammetn 7

Philippine Government Act, ch. 1369, 32 Stat. 691 .......... 2

§ 4, Stat. G82 ........... sosiaeebenachinhasssenkbuamnssneta shed ehiniedihassan 2

Philippine Independence Act, ch. 84, 48 Stat. 456 ........... 3

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re Is IEE Acuscensesisieaenebieiinabscinsbidlelineainbeciaadakiakiounaiies 3

ea I SI, HEIR oa cca dikiectenintlnras ielenaiskon daca Meena mle bia cha 3

Miscellaneous:

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Jn the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1544

LEONORA SANIDAD, ET AL., PETITIONERS

U.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 31-68)

is reported at 35 F.3d 1449. The opinion of the district

court (Pet. App. 73-81) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 20, 1994. A petition for rehearing was

denied on November 8, 1994. Pet. App. 71. The

petition for a writ of certiorari was filed on February

6, 1995. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. At the close of the Spanish-American War on

December 10, 1898, Spain ceded to the United States

the Philippine Islands, Puerto Rico and Guam. See

Treaty of Peace, Dec. 10, 1898, U.S.-Spain, arts. II,

Il{, 30 Stat. 1755 (Treaty of Paris). Article IX of

the Treaty provided that the inhabitants of the

Philippines could remain subjects of Spain by making

their intention to do so known within one year of the

Treaty. 30 Stat. 1759. Otherwise, they were deemed

“to have adopted the nationality of the territory in

which they * * * reside{d].” Jbid. The Treaty de-

clared that “[t]he civil rights and political status of

the native inhabitants of the territories hereby ceded

to the United States shall be determined by Con-

gress.” Ibid.; see Rabang v. Boyd, 353 U.S. 427, 429

(1957). The Senate passed a virtually contempo-

raneous resolution that “by the ratification of the

treaty of peace with Spain it is not intended to

incorporate the inhabitants of the Philippine Islands

into citizenship of the United States, nor is it

intended to permanently annex said islands as an

integral part of the territory of the United States.”

32 Cong. Rec. 1846 (1899).

In 1902, after a period of military rule, Congress

enacted the Philippine Government Act, ch. 1369, 32

Stat. 691. That Act provided, in pertinent part, that

“inhabitants of the Philippine Islands” and their

“children born subsequent” to April 11, 1899, were

deemed “citizens of the Philippine Islands and as such

[were] entitled to the protection of the United

States.” § 4, 32 Stat. 692. During that period, citizens

of the Philippine Islands were commonly known as

5)

“nationals” of the United States. Pet. App. 38 n.5;

Rabang v. Boyd, 353 U.S. at 429-432.

In 1934, Congress adopted the Philippine Indepen-

dence Act, ch. 84, 48 Stat. 456 (Independence Act),

which provided for complete withdrawal of United

States sovereignty ten years after the adoption of a

Philippine constitution. § 10(a), 48 Stat. 463. The

Independence Act also declared that for immigration

purposes the Philippine Islands were to be

“considered to be a foreign country” and its citizens

were to be treated “as if they were aliens.” —§ 8(a)(4)

and (1), 48 Stat. 462. On July 4, 1946, the United

States relinquished control over the Philippine

Islands and declared them to be an independent

sovereign, thus triggering a provision of the

Independence Act that “the immigration laws of the

United States * * * shall apply to persons who were

born in the Philippine Islands to the same extent as in

the case of other foreign countries.” § 14, 48 Stat.

464; see Rabang v. Boyd, 353 U.S. at 429-430.

2. Petitioners, individuals born in the Philippines

during the period of United States’ control (or whose

parents were born there during that period), brought

declaratory judgment actions in the United States

District Court for the District of Hawaii claiming

that they are United States citizens by virtue of the

Citizenship Clause in Section 1 of the Fourteenth

Amendment. Pet. App. 37.’ They argued that at the

time that they (or their parents) were born, the

Philippines were “in the United States” and thus that

! The Citizenship Clause provides:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside.

4

they are constitutionally entitled to citizenship. Jbid.

The district court dismissed petitioners’ claims on

the merits, stating that it was not willing “to rewrite

the law on the citizenship status of people born in the

Philippines and their children.” Pet. App. 80.

3. The court of appeals affirmed. Pet. App. 31-68.

The court held that petitioners’ (or their parents’)

births in the Philippines during the period of the

United States’ control was not sufficient to qualify

them for citizenship under the Citizenship Clause of

the Fourteenth Amendment /d. at 38-40. The court

noted that this Court, in Downes v. Bidwell, 182 U.S.

244 (1901), and its companion cases,’ decided that the

territorial scope of “the United States” as used in the

Constitution is limited to the States of the Union and

that it thus “does not include all territories subject to

the jurisdiction of the United States government.”

Pet. App. 40. Judge Pregerson dissented. Jd. at 43-68.

ARGUMENT

The court of appeals correctly held that persons

born in the Philippines were not born “in the United

States,” and therefore did not acquire citizenship at

birth under the Fourteenth Amendment. That ruling

does not conflict with any decision of this Court or

any other court of appeals. Further review is there-

fore not warranted.

* Downes was one of a series of cases (collectively referred

to as the Insular Cases) involving constitutional questions

about newly acquired island territories. See also De Lima v.

Bidwell, 182 U.S. 1 (1901); Dooley v. United States, 182 U.S.

222 (1901); Armstrong v. United States, 182 U.S. 243 (1901);

Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United

States, 195 U.S. 138 (1904).

5

This Court recently denied a petition for a writ of

certiorari in Summerfield v. INS, 115 S. Ct. 1427

(1995) (No. 94-1208), a case presenting identical iegal

claims that was consolidated with petitioners’ case

for argument in the court of appeals and was decided

on the same day by that court. In light of the recent

denial of review in Summerfield, the Court should

also deny the petition in the instant case.

1. Petitioners’ first contention (Pet. 21-22) is that

they are United States citizens by operation of the

Citizenship Clause of the Fourteenth Amendment,

§$ 1, Cl. 1, which provides: “All persons born or natur-

alized in the United States, and subject to the juris-

diction thereof, are citizens of the United States and

of the State wherein they reside.”

As we explained in greater detail in our brief in

opposition in Summerfield,’ this Court has con-

sistently rejected a reading of the term “United

States” as used in the Constitution to include over-

seas territories that were acquired for a limited

duration. See, e.g., Downes v. Bidwell, 182 U.S. 244,

287 (1901) (opinion of Brown, J.); id. at 342 (White, J.,

concurring in the judgment); Hooven & Allison Co. v.

Evatt, 324 U.S. 652, 673, 674 (1945) (Philippines “are

territories belonging to, but not a part of, the Union

of states under the Constitution,” and for that reason

imports “brought from the Philippines into the

United States * * * are brought from territory,

which is not a part of the United States, into the

territory of the United States”); Rabang v. Boyd, 353

U.S. at 482 (“This Court has held that ‘the power to

acquire territory by treaty implies not only the

3 We have furnished counsel for petitioners with a copy of

our brief in opposition in Summerfield.

6

power to govern such territory, but to prescribe upon

what terms the United States will receive its

inhabitants, and what their status shall be.’”); id. at

432 n.12 (“The inhabitants of the islands acquired by

the United States during the late war with Spain, not

being citizens of the United States, do not possess the

right of free entry in the United States.”) (emphasis

added). Because the Philippines were never “in the

United States,” petitioners’ citizenship was not

governed by the Citizenship Clause, and petitioners

were not citizens by birth. See Rogers v. Bellei, 401

U.S. 815, 827 (1971).

2. Petitioners also err in contending (Pet. 22-26)

that the United States was without authority to

classify citizens of the Philippines as “nationals” but

not citizens of the United States. The United States’

power to define the status of inhabitants of the

Philippines derived from three sources. Congress had

authority under the Constitution to “make all need-

ful Rules and Regulations respecting the Territory

* * * belonging to the United States,” Art. IV, § 3,

Cl. 2, and “[t]o establish an uniform Rule of Natural-

ization,” Art. I, § 8, Cl. 4. In addition, because the

formal transfer of the Philippines to the United

States was achieved through the Treaty of Paris, the

United States’ authority derived as well from Article

IT, § 2, Cl. 2 (the President “shall have Power, by and

with the Advice and Consent of the Senate, to make

1 Petitioners suggest (Pet. 26-27) that the decision in

Downes v. Bidwell was tainted by racial bias. This Court,

however, has continued to rely on Downes v. Bidwell and the

other Insular Cases in determining the constitutional rights of

individuals outside the United States. See, e.g., United States

v. Verdugo-Urquidez, 494 U.S. 259, 268-269 (1990).

7

Treaties, provided two thirds of the Senators present

concur”), as augmented by the Necessary and Proper

Clause, Art. I, § 8, Cl. 18. These fonts of constitu-

tional authority were sufficient to permit Congress

to legislate with regard to a category of persons

subject to, and protected by, the sovereignty of the

United States, without making them citizens. Cf.

Kleindienst v. Mandel, 408 U.S. 753, 765-766 (1972).°

The history of the Louisiana Territory referred to

by petitioners (Pet. 22) provides a clear contrast. The

treaty conveying that territory to the United States

provided that “(t]he inhabitants of the ceded territory

shall be incorporated in the Union of the United

States, and admitted as soon as possible * * * to

the enjoyment of all the rights, advantages and

immunities of citizens of the United States.” Treaty

of Apr. 30, 1803, U.S.-France, art. III, 8 Stat. 202.

That language manifested an intent to incorporate

the territory into the Union and expressly con-

templated United States citizenship for its inhabi-

tants. See United States v. Percheman, 32 U.S. (7

Pet.) 51, 68 (1833); American Ins. Co. v. 356 Bales of

Cotton, 26 U.S. (1 Pet.) 511, 542 (1828). In contrast,

the Treaty of Paris and contemporaneous con-

gressiconal actions evidenced an intent not to vest

® Article IX of the Treaty of Paris provided that the

inhabitants of the Philippines would adopt the “nationality of

the territory in which they may reside” and that “[(t]he civil

rights and political status of the native inhabitants * * * shall

be determined by the Congress.” 30 Stat. 1759. Petitioners

suggest (Pet. 24-25) that “political status” does not include

citizenship status, but the equivalence of these terms is well

established. See, e.g., Hidemitsu Toyota v. United States, 268

U.S. 402, 411 (1925); Balzac v. Porto Rico, 258 U.S. 298, 302 n.1

(1922); In re Heff, 197 U.S. 488, 503 (1905).

8

citizens of the Philippines with United States

citizenship or to admit the Philippines into the Union

as a State. See Balzac v. Porto Rico, 258 U.S. 298, 308

(1922); Fourteen Diamond Rings v. United States,

183 U.S. 176, 179-180 (1901).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Scag see ot aA

Respectfully submitted.

DREW'S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

DAVID J. KLINE

CARL MCINTYRE

Attorneys

MAY 1995

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