IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ANTOLIN PUNSALAN PANGILINAN, ET AL. No. 86-1992 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Memorandum for the Immigration and Naturalization Service The court of appeals held that respondents, 15 Philippine veterans of World War II, were entitled to citizenship under a statute /1/ that expired more than 40 years ago. The court reasoned that the Attorney General violated the 1940 Act by revoking the vice consul's naturalization authority and that respondents were therefore entitled to citizenship now as an equitable remedy (Pet. App. 1a-24a). As we explained (Pet. 16-21), the Attorney General's actions were entirely permissible and did not violate the 1940 Act. More fundamentally, the court of appeals should not have even considered the legality of the Attorney General's conduct back in 1945. Our petition demonstrates (id. at 21-28) that the court below had no authority to order relief because, even if the 1940 Act gave respondents a right to citizenship, that right expired in 1946, and respondents did not apply for citizenship until more than three decades later (see Pet. App. 60a, 130a). 1. a. Respondents contend that the issues in this case are unimportant because the court of appeals' decision "will not affect a large number of persons" (Pang. Opp. 5). /2/ That claim is erroneous; as we have explained (Pet. 15 & n.22; see also Pet. in INS v. Hibi, No. 72-1652, at 9), granting citizenship to Filipino veterans under the 1940 Act will directly affect thousands of Philippine veterans and their families. It will also indirectly affect many other Filipino nationals waiting for immigrant visas because of the likely increase in first preference visa applications. /3/ Respondents do not -- and cannot -- dispute our statement (Pet. 14) that the decision below conflicts with the Second Circuit's opinion in Olegario v. United States, 629 F.2d 204 (1980), cert. denied, 450 U.S. 980 (1981). And, as the dissenting judges below suggested (Pet. App. 40a), the seriousness of that conflict is enhanced, not undermined (as respondents maintain (Pang, Opp. 8)), by the fact that no reasonable Filipino veteran would seek naturalization in the Second Circuit in light of the inter-circuit conflict. Respondents challenge our contention (Pet. 14, 23-25) that the court of appeals' decision conflicts with this Court's decision in INS v. Hibi, 414 U.S. 5 (1973) (Pang Opp. 9-10). They point out that unlike the veteran in Hibi, they are challenging the constitutionality of the Attorney General's actions (id. at 10). But the court below did not reach the constitutional issue (Pet. App. 20a); rather, it held that the Attorney General denied them the right to apply for naturalization to which they were entitled by statute. That analysis is identical to that in the Ninth Circuit's Hibi opinion, which this Court reversed (414 U.S. 5, rev'g 475 F.2d 7 (1973)). See Pet. 25 n.31 (quoting Ninth Circuit's Hibi decision). In the end, as the dissenting judges below recognized (Pet. App. 33a), the result reached by the court below "is precisely that rejected by the Supreme Court in Hibi." /4/ b. Respondents make little effort to defend the court's invocation of equitable authority. They do not explain, for example, how they were denied any "right" when they never attempted to avail themselves of the opportunity for citizenship while they were still eligible for overseas naturalization under the 1940 Act. Nor do they explain how a court can properly overlook their failure to apply for citizenship until more than three decades after the expiration of the 1940 Act. Cf. 8 U.S.C. 1440(d) (even timely applications under Section 701 of the 1940 Act, i.e., those filed by December 31, 1946, must be decided under the 1952 immigration statute). And they provide no explanation of how, in light of the teachings of this Court (see Pet. 22-23 (citing cases)), the court of appeals had authority to ignore the current statutory requirements for citizenship. /5/ To justify the court of appeals' ruling, respondents rely heavily (Pang. Opp. 21-22) on this Court's decision in Leedom v. Kyne, 358 U.S. 184 (1958). That case, however, only underscores the flaw in respondents' position. In Kyne, the Court held that a district court had jurisdiction over a suit to vacate a decision of the National Labor Relations Board (NLRB), where the plaintiff claimed that the NLRB exceeded its statutory powers in violation of Section 9(b)(1) of the National Labor Relations Act, 29 U.S.C. 159(b)(1). The plaintiff in Kyne, after unsuccessfully asserting its position before the NLRB, filed suit in district court almost immediately after the NLRB rendered its decision in 1956, and it asserted rights under a statute that was still in effect. See Kyne v. Leedom, 148 F. Supp. 597 (D.D.C. 1956), aff'd, 249 F.2d 490 (D.C. Cir. 1957), aff'd, 358 U.S. 184 (1958). It is inconceivable that this Court would have authorized the suit in Kyne had the plaintiff waited decades before seeking relief and had he sued under an expired statute. Cf. Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964) (describing Kyne as a case having "narrow limits"). The fact that Kyne is the most "analogous" decision that respondents could find (see Pang. Opp. 21) thus only corroborates the dissenting judges' observation that the court below "stretche(d its) equity powers far beyond previously accepted limits" (Pet. App. 41a). Nor are respondents persuasive in attempting to discount the disruption and distortion of the immigration and naturalization system that would result if they prevail in this case (see Pet. 15 & n.22). Naturalization examiners and courts, they suggest, "should have no more difficulty assessing the credibility of a veteran's claim than they have in judging any other issue of fact" (Pang. Opp. 22). Yet they fail to recognize that the facts at issue -- possession of the necessary qualifications under the 1940 Act -- are at this point more than 40 years old. They describe the spillover effect of immigration rights accorded the spouses and children of naturalized veterans as "gradual and orderly" (ibid.), even though the visas obtained by the veterans' families will lengthen the wait of other Philippine nationals who wish to immigrate to this country. In short, respondents fail to show that a balancing of the equities supports them, let alone that the scales tip decidedly in their favor, as they must before equitable relief will be ordered against the government (see Pet. 26). c. Respondents provide no valid basis to undermine the holding of the Second Circuit in Olegario, 629 F.2d at 227, that the authority granted to the Executive Branch to implement the 1940 Act "was sufficient to permit the executive to exercise discretion when confronted with a seemingly delicate foreign affairs matter." Indeed, respondents themselves concede (Pang. Opp. 18) that the statute "was broad enough to allow the INS some discretion with respect to the allocation of limited naturalization personnel." It is difficult to understand the statutory basis for respondents' position that the Executive Branch could make discretionary decisions for some purposes but had no authority to act in the face of a difficult foreign policy concern. 2. Respondent Litonjua raises three additional arguments unique to his case, all of which lack merit. First, he claims (Lit. Opp. 13-15) that he is different from the other 14 respondents because he made specific inquiries in Seattle, Washington, in July or August of 1946, while the 1940 Act was still in effect (see Pet. 9-10 & n.16). However, those inquiries have no bearing on the issues involved here. This case involves whether respondents were denied a right to overseas naturalization. At the time Litonjua made inquiry, he was ineligible for overseas naturalization under Section 702 of the 1940 Act because he was no longer serving in the armed forces (see Pet. 9). Moreover, as we noted (Pet. 9-10 n.16), he ignored the instructions of the immigration officials and did not follow through with the application process while the statute was still in effect. In any event, he was treated by both the district court (Pet. App. 55a) and the court of appeals (Pet. App. 6a n.3) as a Category II veteran, and the court of appeals ordered his naturalization on the same theory that it ordered the naturalization of the other respondents. /6/ Thus, the legal issues raised in this case are fully applicable to Litonjua. Second, Litonjua erroneously argues (Lit. Opp. 4-5) that, in his case, a court could not properly find that foreign policy considerations were the basis for the withdrawal of naturalization authority from the Philippines, since the government offered no evidence on the subject at his naturalization hearing. The evidence that he claims was necessary concerned only the historical facts involving the administration of the 1940 Act, which are well settled and are recounted in numerous court decisions. /7/ Finally, Litonjua contends (Lit. Opp. 18-19) that this Court should deny review in his case because he has already been naturalized. But as we explained in our prior decision in this case (INS v. Litonjua, No. 82-1877, at 9 n.9 (involving issue of collateral estoppel)), Litonjua's naturalization occurred because of a delay by the court of appeals in recalling its mandate. As we indicated (ibid.), his case is not moot as a result of his having been naturalized, since reversal of the judgment of the court of appeals would enable the government to have his naturalization decree vacated pursuant to 8 U.S.C. 1451(j) and Fed. R. Civ. P. 60(b)(5). Cf. INS v. Litonjua, 465 U.S. 1001 (1984) (vacating and remanding court of appeals' judgment as to Litonjua as well as the other respondents, thereby treating him no differently even though he had already been naturalized). In short, all of the reasons we have given that show why the court of appeals erred in granting citizenship to respondents under the 1940 Act are fully applicable to Litonjua. For the foregoing reasons and those given in the petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Solicitor General SEPTEMBER 1987 /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, 1005 (hereinafter the 1940 Act). /2/ "Pang. Opp." refers to the brief in opposition filed by the 14 respondents in Pangilinan, et al. v. INS (caption below); "Lit. Opp." refers to the brief in opposition filed by the respondent in Litonjua v. INS (caption below). Litonjua makes various arguments applicable only to his case. In addition, he joins the arguments made by the Pangilinan respondents (see Lit. Opp. 3-4). /3/ Respondents quarrel with the government's figures (Pang. Opp. 6) -- which are based upon Immigration and Naturalization Service statistics and actual naturalization petitions filed -- but fail to provide any figures of their own. In the alternative, they claim that the numbers stated by the government are "insignificant" in comparison to the "millions" of aliens who will be legalized under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (Pang. Opp. 8). That argument is all but frivolous. Under that theory, the INS should no longer contest any immigration or naturalization cases and should simply discontinue its congressionally mandated tasks. Cf. INS v. Cardoza-Fonseca, No. 85-782 (Mar. 9, 1987), slip op. 4-5 n.3 (holding that, notwithstanding the legalization program, it was inappropriate to reach the asylum issue presented here because it "will arise, and has arisen, in hosts of other asylum proceedings"). /4/ Respondents also contend (Pang. Opp. 11 n.3) that, because of the government's withdrawal of its appeal from In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975), and its subsequent accedence, on "grandfather" grounds, to the naturalization of veterans who filed petitions prior to that withdrawal, the application of Hibi to this case "would perpetuate an anomalous and unjust discrimination between two groups of veterans that do not differ from each other in any significant way." That argument merely restates, in a different form, the "collateral estoppel" theory that was rejected by this Court in United States v. Mendoza, 464 U.S. 154 (1984). /5/ Respondents concede that they are ineligible for citizenship under the current immigration statute (Pang. Opp. 12-13). /6/ The court of appeals did not reach Litonjua's claim that he should be treated as a Category I veteran (Pet. App. 6a n.3). /7/ See, e.g., Pet. App. 2a-4a; Hibi, 414 U.S. at 9-11 (Douglas, J., dissenting); Olegario, 629 F.2d at 207-214; In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. at 934-936.