petition for naturalization of Marciano Haw Hibi, WW11 veteran 2

Hibi arr. April 25, 1964, as a temporary business visitor. On September 13, 1967, he petitioned for naturalization...it was filed long after the expiration of section 702 (December 31, 1946)  which offered American citizenship to non-citizens serving in the Armed Forces of the United States overseas during World War II who, by reason of their overseas service, were not free to appear before a regular naturalization court in the United States. .

Petitioner, a native of the Philippines, enlisted in the United States Army, Philippine Scouts, in 1941. The Scouts were always a part of the Army of the United States, as contrasted with the army of the Commonwealth of the Philippines, a much larger group organized by and under the control of the Philippine Government. The Scouts were dispersed during the Japanese occupation of the islands, but when the United States Army returned, petitioner rejoined and served until his discharge on December 6, 1945. After spending some time at his mother's home in the outlying provinces, petitioner alleges that he first learned that he had missed any naturalization opportunity when he returned to Manila late in 1946 or early 1947. A letter of inquiry to the American Embassy produced a mimeographed answer informing him only that the quota on those born in the Philippines was heavily oversubscribed.

Due to the Japanese occupation of the island, naturalization under section 702 had been delayed until 1945. Following resolution of eligibility questions in early 1945, authorization was sent to an American vice-consul to commence naturalization proceedings. The Commissioner of Immigration, in a letter of September 13, 1945, indicated that this authority had not yet been exercised. Additionally, he noted political considerations that some officials of the Philippine Government were voicing in making objections to Filipino naturalizations. He suggested to the Attorney General that the situation might best be handled by revoking the authority of the then Naturalization Examiner and "omitting to designate" any successor. The result of this of course, was to render section 702 completely ineffective. Subsequently, revocation of authority was sent, and naturalizations ceased October 27, 1945. A naturalization examiner was later sent to the Philippines, in August of 1946, about a year after the war had ended and some eight months after petitioner's discharge. This decision appears to have had some basis in the Service's conclusion that members of the Philippine Commonwealth Army were no longer eligible for naturalization under section 702. The determination did not affect the much smaller number of Philippine Scouts, and many Scouts who had re-enlisted or who were still on active duty were then naturalized.

Petitioner alleges that at no time prior to his discharge was he ever made aware of his eligibility for naturalization under section 702. The Army had a regulation requiring that notice be given aliens, at the time of their induction or enlistment, of their rights to apply for naturalization, and requiring a notation to that effect in the alien's service record. Petitioner had enlisted before this regulation took effect; it is not clear whether this notice was required to have been given when he rejoined the Army upon its return to the islands in 1945. It is not disputed that at no time were notices posted on his unit's bulletin board, application forms distributed, announcements made to his unit, nor were any notations made in his service record to indicate that petitioner had been told about the law.³

Section 705 was not discretionary but imposed a legal duty upon the Commissioner of Immigration to make the benefits of sections 701 and 702 available to all qualified applicants. The duty to this petitioner was to make a representative available to naturalize non-citizen applicants while they were still serving in the armed forces. As the district court found, by revoking the authority of the only representative who could have naturalized the petitioner while he was still in the army, the Service failed in its duty to carry into effect the purposes of section 702, and thus denied petitioner of a fair opportunity to apply for naturalization during the only time he could apply.

The government argues that a broad amount of discretion was invested in officials to effect the implementation of this Act. We have been cited to no statutory language, nor can we find any ourselves, that gave either the Attorney General or the Commissioner of Immigration the authority to revoke, on his own initiative, the authority of the only person designated to perform naturalizations in the Philippines. We thus reject the government's contention that an official of the executive branch could unilaterally nullify this Act of Congress.

We agree with the district court that the government should be estopped from alleging, as to this applicant, that the filing deadline set forth in section 701 has passed, or that denial of the petition is required by section 310(e) of the present Immigration and Nationality Act. The petition should be granted.

This court has not hesitated to invoke equitable relief to permit one to obtain his rights of citizenship where those rights have been denied due to erroneous action on the part of administrative officials. Thus in Tejeda v. United States Immigration & Naturalization Service, 346 F.2d 389 (9th Cir. 1965), the plaintiff contended he had been a permanent resident but was denied re-entry because of misadvice of the American Consul. The court remanded for findings as to these asserted facts saying:

"If the properly developed factual findings reveal that petitioner made a bona fide effort to re-enter in 1947 or 1948 and failed to obtain reentry due to the misadvice of the American Consul, the respondents should be precluded from denying petitioner what was rightly his-reentry as a non-quota immigrant in 1947 or 1948 under 22 U.S.C. Sec. 1281." Tejeda v. United States Immigration & Naturalization Service, supra, at 394.

See also, Hetzer v. Immigration & Naturalization Service, 420 F.2d 357 (9th Cir. 1970).

The record shows that procedures were set up to notify noncitizens in a position similar to that of the petitioner of their right to apply for naturalization. The record shows further that these procedures were not effectively carried out, at least for this petitioner. This lack of notification was clearly prejudicial. Even if he had been notified, however, because of the conduct of certain officials, petitioner would probably have been denied the opportunity to apply for naturalization. Because the conduct of these officials was in derogation of their duty to carry out an Act of Congress, and because petitioner has been prejudiced by this conduct, the appellant is not entitled to immunity from equitable estoppel in this case. See Gestuvo v. District Director, Immigration & Naturalization Service, 337 F.Supp. 1093 (C.D.Cal. 1971).

The judgment of the district court is affirmed.