IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ANTOLIN PUNSALAN PANGILINAN, ET AL. IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. BONIFACIO LORENZANA MANZANO No. 86-1992, 86-2019 In The Supreme Court of the United States October Term, 1987 On Writs of Certiorari to the United States Court of Appeals For The Ninth Circuit Reply Brief For The Petitioner In our opening brief, we argued that the court of appeals erred in holding that respondents were entitled to citizenship under a statute that expired in 1946. First, we showed (Gov't Br. 24-29) that the court's opinion conflicts with this Court's decision in INS v Hibi, 414 U.S. 5 (1973). Second, we demonstrated (Gov't Br. 30-41) that the Attorney General acted properly in revoking the vice consul's naturalization authority. Third, we showed (Gov't Br. 41-50) that even if the Attorney General exceeded his authority, the court of appeals was not warranted in ordering citizenship as an equitable remedy. 1. Respondents make no attempt to answer our showing that they have merely utilized a different label to seek the same relief that was denied by the Court in Hibi (see Gov't Br. 24-29; see also Hibi Mem. in Opp. Cert. 15). Instead, they claim (Pang. Br. 12-14) /1/ that Hibi is distinguishable in two ways. First, they maintain that, unlike in Hibi, "respondents have consistently raised the constitutional arguments that the Attorney General's decision to prevent them from filing petitions for naturalization in 1945 deprived them of due process and the equal protection of the laws" (Pang. Br. 13). We fail to see the relevance of that argument as a way of supporting the court of appeals' decision. As we explained in our opening brief (Gov't Br. 15), the court below decided the case solely on statutory grounds specifically to "avoid deciding" the constitutional arguments raised by respondents (Pet. App. 20a). Respondents do not -- and cannot -- explain how the court's statutory analysis can be reconciled with Hibi. /2/ Second, respondents contend that, "(i)n contrast to the facts as characterized in Hibi, these respondents have consistently argued that the majroity's view of the 1945 events as neglect does not represent a full and fair description of what really happened" (Pang. Br. 14 (emphasis added)). According to respondents, the Attorney General's revocation of the vice counsul's naturalization authority was "a deliberate, unambiguous decision to prevent operation of the law by making naturalization impossible for the very people that the Attorney General himself had acknowledged to be among the law's intended beneficiaries" (ibid. (emphasis added)). That argument, far from distinguishing Hibi, only demonstrates that respondents are making the same assertions here that the Court rejected in Hibi. The respondent in Hibi -- who was represented by lead counsel for respondents in this case -- not only made the very same arguments but used virtually identical language (Hibi Mem. in Opp. Cert. 6): (T)his case involves the deliberate and calculated decision of the Commissioner of Immigration, with the consent of the Attorney General of the United States, to single out Filipino soldiers in the Philippines and to deny to all of them the opportunity to accept the offer of citizenship tendered them by Congress. ("all" emphasized in original; other emphasis added) /3/ Thus, neither ground offered by respondents for distinguishing Hibi is even arguably persuasive. Indeed, respondents' invitation to the Court to "reassess" its Hibi decision (Pang. Br. 14) -- an invitation this Court should decline -- is a virtual concession that the decision is dispositive. 2. a. Respondents have offered no convincing argument to support their contention that the Attorney General violated the the 1940 Act /4/ in revoking the vice consul's naturalization authority. As we explained(Gov't Br. 32-34), while the terms of that Act were ambiguous enough to allow the Attorney General to conclude that the offer of citizenship embraced servicemen who enlisted in the Philippines, including those serving in the Commonwealth Army, there is no evidence that Congress specifically intended to extend the offer to them. Respondent's entire case is based on the premise that the Attorney General contravened "the will of Congress" (Pang. Br. 1-2, 10), /5/ but in the end, all they can say is that "it was not likely" that Congress meant to "exclude" Philippine servicemen from the statute's benefits (id. at 8). The issue, however, is not whether Congress affirmatively intended to "exclude" Philippine servicemen, but rather whether a specific congressional intent to include them existed which precluded the Attorney General from suspending implementation of the statute in the Philippines (while still applying the statute to Filipinos elsewhere) in the exercise of his interpretive and foreign policy discretion. Respondents have cited nothing to show that Congress possessed such a conscious intent. /6/ b. Respondents' principal basis (Pang. Br. 1, 4-5) for claiming that the Attorney General acted unlawfully is a single sentence from this Court's decision in INS v. Miranda, 459 U.S. 14, 18 (1982), in which the Attorney General's action was referred to as "error." According to respondents (Pang. Br. 5), the government is "foreclosed (by Miranda) from arguing that the Attorney General's conduct was not error." As the dissenting judges below noted (Pet. App. 32a), however, "(i)t is conceivable that the Court (in Miranda) resolved this important and difficult question in such an off-hand manner in a case where it was not argued, briefed or even at issue." The dissenters' point is particularly strong in light of the fact that the Court in Miranda did not simply describe the "error" as "clear" in Hibi; rather, it used that characterization with respect to the governmental actions both in Hibi and in Montana v. Kennedy, 366 U.S. 308 (1961). See Gov't Br. 16 n.27 (quoting from 459 U.S. at 18). The Court in Montana, however, did not hold that the conduct involved there -- an alleged refusal of a consular offical to issue a passport to a pregnant woman to return to the United States -- was necessarily error. Rather, the Court suggested that the official may have simply given "well-meant advice" that the woman was in no condition to travel (366 U.S. at 314-315). /7/ Thus, it appears that the point of the statement in Miranda was simply to contrast the situation involved there -- mere delay in processing an application for adjustment of status -- with the specific, affirmative acts taken by the officials in Hibi and Montana, in order to point out that, since the latter acts were not affirmative misconduct giving rise to an estoppel, it followed a fortiori that the mere inaction involved in Miranda did not give rise to an estoppel. 3. a. Respondents provide no convincing basis for the court of appeals' invocation of equitable authority. Without really answering our submission that the court of appeals' decision conflicts with the terms of several statutes (Gov't Br. 39-42, 45), /8/ respondents nontheless assert that the remedy fashioned by the court "gives effect to Congress' purpose under the 1940 Act" (Pang. Br. 18-19). However, as noted, the 1940 Act did not reflect an express purpose to award citizenship to soldiers who enlisted or were inducted in the Philippines. Moreover, as the Court recognized in Hibi, the December 31, 1946, cutoff date under the 1940 Act reflected "the public policy established by Congress" (414 U.S. at 8). Since the court of appeals' remedy thus contravenes the public policy underlying the 1940 Act as well as the policies of several subsequent statutes, there is no basis for respondents' assertion that the court below was somehow carrying out Congress's intent. b. Respondents do not dispute our claim (Gov't Br. 46-48) that equitable relief is inappropriate in the absence of demonstrable injury. They contend, however, that they sustained injury as a result of the Attorney General's actions. Without identifying how they were injured, they state that "their injury does not depend on their knowledge because their knowledge was irrelevant to the availability of the benefits of the 1940 Act" (Pang. Br. 19 (footnote omitted)). That contention is unpersuasive; since respondents, by their own admissions, did not even know about the overseas naturalization program while they were on active duty (see Gov't Br. 12 n.17; Lodging 334, 463; Gov't C.A. Br. (Manzano) 2), they suffered no harm by the absence of an examiner. And in light of respondents' admissions, we fail to see how they are helped by their fallback argument (Pang. Br. 19 n.5) that, if knowledge is a prerequisite, "a naturalization court can inquire of each applicant under the 1940 Act whether he knew of opportunities under the Act in 1945-46." c. While respondents do not dispute our contentions that a court must balance the equities before ordering relief and that the court below failed to do so (Gov't Br. 45), they assert that the equities favor their position (Pang. Br. 18-21). What they overlook, however, is that if they prevail, the government will be faced with similar claims by potentially thousands of other alleged Philippine veterans (see Pet. 15 n.22). Because the facts at issue -- possession of the necessary qualifications for citizenship -- relate to events of more than 40 years ago, the naturalization courts will have great difficulty in making reliable assessments of applicants' claims that they qualified under the 1940 Act. In addition, contrary to respondents' assertion that the "spillover" effect on the immigation system would be minimal (Pang. Br. 21), the fact is that it could be quite substantial (see Gov't Br. 48-50). Most fundamentally, respondents do not show how the equities weigh in their favor when they did not apply for citizenship under the 1940 Act until more than three decades after the statute's expiration date. 4. Finally, respondents maintain (Pang. Br. 22-31) that the Attorney General's actions violated their constitutional rights, a claim not reached by the court below (see Pet. App. 20a). However, the reasons why their statutory arguments must fail, as discussed in our opening brief (Gov't Br. 23-50), also demonstrate the lack of merit to their constitutional claims. a. To begin with, the constitutional "due process" and "equal protection" claims raised by respondents are nothing more than different labels for identical arguments made and rejected in Hibi. As we indicated (page 3, supra), the arguments made in Hibi were not only in substance the same as those made here but even involved virtually identical language. /9/ Had the Court in Hibi believed that the Attorney General's conduct violated the constitutional rights of Philippine servicemen, it is highly unlikely that it would have concluded that such conduct did not rise to the level of "affirmative misconduct" (414 U.S. at 8). Moreover, respondents cannot prevail unless they meet the requirements for equitable relief. And as we demonstrated (Gov't Br. 45-50), under a balancing of the equities, respondents are not entitled to such relief. They cannot ignore the requirements for equitable relief merely by labeling their claims as constitutional challenges. See generally Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 12, 15-16 (1971); Eccles v. Peoples Bank, 333 U.S. 426, 431 (1948) ("It is always the duty of a court of equity to strike a proper balance between the needs of the plaintiff and the consequences of giving the desired relief" (emphasis added)). b. In an event, even if Hibi and principles of equity did not foreclose their claim, respondents' constitutional arguments are totally without merit. Due process interests are implicated only when a governmental decision deprives a person of something to which he has "'a legitimate claim of entitlement.'" Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). An "'abstract need or desire'" or "'a unilateral expectation'" does not suffice (ibid.). Respondents assert that the revocation of the vice consul's naturalization authority deprived them of a property interest (Pang. Br. 22-28), but they fail to identify any legally cognizable interest that was denied to them. Since respondents did not attempt to submit timely applications for naturalization, they cannot claim that they were deprived of a right to have their applications acted on and approved if they met the necessary qualifications. Their claim can only be that the revocation of the vice consul's authority deprived them of an opportunity to submit their applications. /10/ But since the vice consul possessed naturalization authority for three months while respondents were on active duty in the Philippines (Gov't Br. 47), they cannot claim total deprivation of that opportunity. Thus, the real essence of their claim must necessarily be that the statute vested them with a right to personal notice of citizenship program and to the continuous availability of an examiner to whom they could submit their applications. As we have shown (Gov't Br. 31, 47 n.52), however, no such rights can be found in the terms of the statute; to the contrary, the statute contained no notice provision, and it left all decisions concerning the designation of overseas examiners entirely to the discretion of the Attorney General and the Commissioner of Immigration and Naturalization. If the statute imposed a duty upon the Attorney General to make an examiner continuously available to every eligible alien serviceman, it would logically follow that every overseas soldier who did not have convenient and uninterrupted access to an examiner during the entire time the citizenship program was in effect could make out a due process claim and seek present day citizenship as an equitable remedy. Such a result would render meaningless the December 31, 1946, statutory cutoff. Respondents' equal protection claim is similarly without substance. As they in essence concede (Pang. Br. 20), the three-month presence of an examiner in the Philippines compared favorably to the merely periodic presence of an examiner elsewhere in the world. The continuous presence of a naturalization examiner in the Philippines would have given them a greater opportunity to apply for citizenship than alien servicemen elsewhere were afforded. The failure to afford them an even more favorable position can hardly be deemed a denial of "equal" protection. In any event, our showing that the Attorney General's actions were within his statutory authority (Gov't Br. 29-41) disposes of respondents' equal protection claim. In the area of immigration and naturalization, classifications made by Congress or the President, such as those based on nationality, must be upheld unless they are wholly irrational or lacking in facial legitimacy. See generally Fiallo v. Bell, 430 U.S. 787, 792 (1977); Mathews v. Diaz, 426 U.S. 67, 79-83 (1976); Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979), cert. denied, 446 U.S. 957 (1980). Here, the Attorney General's actions were a rational and legitimate response to substantial concerns raised by Philippine officials. See note 9, supra. As the Second Circuit stated in Olegario v. United States, 629 F.2d 204, 233 (1980), cert. denied, 450 U.S. 980 (1981), in rejecting an identical equal protection argument, the revocation of the vice consul's authority "was justified in light of the express federal interest in responding to the concerns voiced by the Philippine government." /11/ For the foregoing reasons and the reasons stated in our opening brief, it is respectfully submitted that the judgment of the court of of appeals should be reversed. CHARLES FRIED Soliciter General FEBRUARY 1988 /1/ "Pang. Br." refers to the brief filed on behalf of all sixteen respondents; "Lit. Br." and "Manz. Br." refer respectively to the separate briefs filed by respondents Litonjua and Manzano containing additional arguments applicable only in their individual cases. /2/ In any event, as we show infra, respondents' constitutional arguements -- which are themselves nothing more than new labels for the same arguments made and rejected in Hibi -- are also foreclosed by that decision. /3/ See also Hibi Mem. in Opp. Cert. 3 (arguing that the "(d)eliberate (r)efusal" of the Commissioner of Immigration to implement the citizenship program violated principles of separation of powers); id. at 6 (asserting that the Commissioner of Immigration "deliberately refus(ed) to do what Congress plainly wanted done"); id. at 8 ("the benefits of (the statute) were deliberately and specifically denied to Filipinos exclusively"); id. at 12 ("the naturalization representative was withdrawn for the express purpose of preventing the naturalization of Mr. Hibi and other Filipino soldiers"); Hibi Pet. for Reh'g 3 (characterizing case as involving "the commission of an intentional act on the part of a high administrative official"); id. at 7 (describing the revocation of the vice consul's authority as a "conscious, intentional, deliberate and affirmative act"). /4/ 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. /5/ Respondents offer four unconvincing reasons for their assertion that the will of Congress was violated. First, they state (Pang. Br. 7) that the legislation was enacted at the time the battles of Bataan and Corregidor were being fought. Yet they cite nothing to show that the 1940 Act was passed to reward Filipino servicemen for their role in such battles. Second, they state (ibid.) that "Congress obviously knew" when it passed the 1940 Act that "large numbers of Filipino soldiers had been inducted into the army of the United States by President Roosevelt's executive order." Again, however, respondents cite nothing to show that Congress contemplated that the program would apply to thousands of Filipino servicemen who did not enlist directly in the United States Armed Forces but who instead were members of their own national army which, as a unit, was "call(ed) and order(ed) into the armed forces of the United States" pursuant to a presidential order (Lodging 482). Indeed, the House initially rejected the proposed citizenship program after fears were expressed that thousands of aliens who had never been in the United States would become citizens through service in our armed forces (88 Cong. Rec. 1790-1791, 1794-1799 (1942)). Apparently to allay those concerns, the Conference Committee added language requiring that the soldier be lawfully admitted to the United States, including its territories and possessions (H.R. Conf. Rep. 1896, 77th Cong., 2d Sess. 3 (1942)). In light of these concerns, it is doubtful that Congress contemplated, without specific mention, that it was authorizing citizenship for the many thousands of soldiers in the Philippine Commonwealth Army. Third, respondents point out (Pang. Br. 7) that the 1940 Act, by its terms, applied to any member of the armed forces who was "not a citizen." The use of that language (rather than the term "alien"), they suggest, must have been in contemplation of Philippine soldiers. In fact, however, the same language was used in a subsequent statute dealing with citizenship for members of the armed forces. See Act of June 1, 1948, ch. 360, 62 Stat. 281. As we explained (Gov't Br. 40-41, 42), the latter statute specifically excluded servicemen who enlisted in the Philippines unless they later become lawful permanent residents of the United States. Clearly, the language "not a citizen" is not synonymous with "Philippine national." Finally, respondents point out (Pang. Br. 8) that the statute applied to veterans who were lawfully admitted to the United States or its "territories or possessions." As noted, however, this language was apparently added to limit the coverage of the program. Since the Philippines had certain highly relevant characteristics of a foreign country (see Philippine Independence Act of 1934, ch. 84, Section 8(a)(1), 48 Stat. 462 (citizens of the Philippines treated as aliens for immigration purposes)) and their independence was imminent (id. Section 10(a), 48 Stat. 463), it is questionable whether Congress thought that the islands were embraced within the term "territories and possessions." /6/ In addition, respondents essentially ignore our submission that the 1940 Act gave the Attorney General broad discretion in carrying out the citizenship program (Gov't Br. 31). They merely assert (Pang. Br. 6 (footnote omitted)), without analysis, that the Attorney General had no discretion in carrying out the statute but was under a "plain duty" to "mak(e) the services of naturalization representative (sic) available to qualified veterans on the scene." The 1940 Act simply does not support this contention (see Gov't Br. 31). /7/ Indeed, lead counsel for respondents in discussing Montana in a petition for rehearing filed with this Court in Hibi, noted that the conduct at issue there was "ambiguous" and that it therefore could not "be said (that) the government official was guilty of a consciously wrongful act" (Hibi Pet. for Reh'g 5). /8/ Respondents assert that they do not fall within the purposes of 8 U.S.C. 1421(e) (Pang. Br. 15-16), but they essentially ignore the two statutes expressly applicable to Philippine servicemen (Act of June 1, 1948, ch. 360, 62 Stat. 281; First Suplemental Surplus Appropriation Rescission Act, 1946, ch. 30, 60 Stat. 6) as well as a third statute (8 U.S.C. 1440(d)) that specifically requires all pending citizenship applictions under Section 701 of the 1940 Act to be reviewed under the Immigration and Nationality Act of 1952, 8 U.S.C. (& Supp. IV) 1101 et seq. See Gov't Br. 39-42. The only argument they make as to why the latter three statutes are not dispositive is that Congress did not explicitly ratify the Attorney General's actions (Pang. Br. 10-11, 18). But in fact, the statutes are far broader than the mere ratifiction of the revocation of the vice consul's naturalization authority. As we explained (Gov't Br. 39-41), those statutes make clear that servicemen who enlisted or were inducted in the Philippines were not eligible for citizenship under liberalized conditions, even if they had pending applications under the 1940 Act. If Congress was willing to cut off benefits of the program to servicemen in the Phillipines who submitted timely applications that had not been ruled upon, it could not possibly have intended that individuals such as respondents, who did not even know about the program while they were on active duty (see infra), could claim its benefits 40 years later. /9/ The only new argument made by respondents is an unfounded accusation that the Attorney General's actions were motivated by racial animus rather than foreign policy concerns (Pang. Br. 31; but see id. at 7 (suggesting that the Attorney General's acts were based on "the objections of Philippine officials")). Yet even the court below acknowledged that the Attorney General's actions were in response to concerns of Philippine officials that their newly emerging nation would suffer a manpower drain (see Pet. App. 3a, 44a). See also Hibi, 414 U.S. at 10-11 (Douglas, J., dissenting) (noting that the revocation of the vice counsul's authority was in response to concerns expressed by the Philippine government); Olegario v. United States, 629 F.2d 204, 209-210 (2d Cir. 1980) (same), cert. denied, 450 U.S. 980 (1981); In re Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931, 935-936 (N.D. Cal. 1975) (same). Indeed, respondents' charge of racism is frivolous in light of the facts that (1) the Attorney General initially applied the 1940 Act in the Philippines even though the statute did not explicitly so require (Gov't Br. 32-34 & n.36); (2) several thousand Filipinos were naturalized outside the Philippines, where Filipinos were continously eligible for naturalization while the 1940 Act was in effect (id. at 6); and (3) the citizenship program was reinstated in the Philippines in August 1946 (id. at 9). /10/ Respondents assert that an opportunity to apply for citizenship "was granted in exchange for a service to the United States" (Pang. Br. 25 (emphasis in original)). In light of the fact that they did not even know about the citizenship program until after they were out of the service (see page 8, supra), and therefore could not have enlisted for that reason, their claim of a contractural entitlement is specious. /11/ The additional individualized arguments made by respondents Litonjua and Manzano require only a brief response. First, those respondents maintain (Lit. Br. 4; Manz. Br. 3) that the government cannot prevail because it did not introduce any evidence in their cases concerning the historical events at issue. In fact, however, the burden of proof is on the applicant to establish eligibility for citizenship. See, e.g., Berenyi v. District Director, 385 U.S. 630 637 (1967). Litonjua and Manzano did not introduce historical evidence to show that the 1946 statutory cutoff should be disregarded. Thus, if they are correct that the events of 1945-1946 must be established by evidence in each naturalization proceeding, then their claims must fail for want of proof. In any event, the events at issue have been described in numerous court decisions and are therefore properly subject to judicial notice. Cf. Pang. Br. 12 (noting that the present case and Hibi "are founded on the same historical circumstances"). On a related matter, Manzano errs in claiming (Manz. Br. 8) that the government omitted "important pieces of evidence" from its Lodging filed with this Court. To our knowledge, the Lodging includes all of the historical documents that were made part of the record in any of the present cases. To the extent that there are other historical documents of potential relevance, Manzano does not explain why respondents did not offer them as evidence or otherwise attempt to rely on them in this case. Finally, Litonjura errs in claiming that there are critical facts that make his case unique. First, he claims (Lit. Br. 5) that he is a "Category I" veteran and therefore qualifies for citizenship under the government's policy of not opposing naturalization petitions of veterans in that category (see Gov't Br. 11 n.15). But as the district court noted in rejecting that claim (Pet. App. 55a), Litonjua is not a Category I veteran because he made no effort to obtain citizenship until after he left the armed forces. Litonjua also errs in apprarently suggesting (Lit. Br. 5) that his case is moot because he persuaded the district court to naturalize him, over the government's objections, notwithstanding the pendency of appellate proceedings. Reversal of the judgment of the court of appeals would enable the government to have the naturalization decree vacated pursuant to 8 U.S.C. 1451(j) and Fed. R. Civ. P. 60(b)(5). See generally Mancusi v. Stubbs, 408 U.S. 204, 205-207 (1972).