Monday, July 16, 2007

The Origins of the Fil Vets' Battle for Equity

When the US House Veterans Affairs Committee convened on July 17 to vote to “mark up” the Filipino Veterans Equity Bill (HR 760) to send it to the full House for a vote, the long battle for justice for the Filipino war veterans came closer to victory than at any other time in its history. A counterpart bill (S. 57) in the US Senate was approved last month by the US Senate Veterans Affairs Committee and is headed for a floor vote in the Senate.
If the House Veterans Affairs Committee, headed by the equity bill’s main sponsor, Rep Bob Filner, marks up HR 760 and it passes a House vote, and S. 57 passes in the Senate as well, a joint Senate-House conference committee will then reconcile differences in their respective versions.

Once a conference-crafted bill is finalized, both chambers will next vote on it. If it passes both chambers, it will then head to the White House for the signature of US Pres. George W. Bush. If Pres. Bush ignores the recommendation of Secretary of Veterans Affairs Jim Nicholson and signs the Filipino Veterans Equity Bill into law, the battle for equity will have finally been won.

The 1946 Origins

The battle for equity began in 1946 when the US Congress passed the Rescission Act on February 18, 1946, a law which deemed service by Filipinos in the US Army Forces in the Far East (USAFFE) as not to be service in the US Armed Forces for purposes of entitlement to US veterans’ benefits. Filipinos considered this a betrayal of the promise made by US President Franklin Roosevelt on July 26, 1941 when he issued an Order drafting Philippine Commonwealth soldiers into the US Army.

But it was not the first betrayal of a promise. Earlier, in September of 1945, US Attorney-General Tom Clark issued an order revoking the authority of Vice Consul George Ennis, the naturalization officer at the US Embassy in Manila, to process the naturalization applications of Filipino USAFFE veterans. A law passed by the US Congress in 1940 granted US citizenship to Filipinos and other aliens who fought under US command anywhere in the world. All they needed to do was apply to a naturalization officer.

The law was amended in 1942 to set a cut-off date of December 31, 1946 and required that the applicants still remain in active duty when they apply. This revocation of authority was applied only to the Philippines and lasted until August 1946 when the US Embassy finally began accepting and processing applications of Filipino WW II veterans was restored.

In four months, some 4,000 Filipinos under US command applied for and were granted US citizenship. Before these 4,000 Filipino USAFFE soldiers applied for citizenship, some

7,000 Filipinos who had immigrated to the US in the 1920s and 1930s became naturalized US citizens after enlisting and serving in the US Army in the 1st and 2nd Filipino Infantry Regiments.

Marciano Haw Hibi

For more than 20 years after 1946, nothing significant occurred in either reversing the Rescission Act or obtaining naturalization for Filipino WW II veterans. It was not until a veteran named Marciano Haw Hibi arrived in San Francisco as a visitor for business in 1964. With the assistance of his immigration lawyer, Donald Ungar, Haw Hibi filed his application for US naturalization as a Filipino war veteran under the 1940 law. After the naturalization examiner denied his application as Ungar expected, Haw Hibi filed his petition for naturalization in the US District Court in San Francisco on September 13, 1967.

Haw Hibi argued that the US government should be “estopped” (legally precluded) from claiming that he filed his petition 21 years after the cut-off date in 1946 because it was the “affirmative misconduct” of the US government in removing the authority of the naturalization officer in Manila to process his application for US citizenship that caused the delay.

Haw Hibi had enlisted in the Philippine Scouts in February of 1941 after this military force was placed under US command. He was captured by the Japanese in 1942 and released after six months of internment. In April 1945, after the liberation of the Philippines by Allied Forces, Haw Hibi rejoined the Scouts and served until his discharge in December 1945. Although the US naturalization officer in Manila was allowed to process naturalization applications in August of 1946, Haw Hibi was by then no longer eligible to apply as he had been discharged in 1945 and a 1942 amendment required an applicant to still be in active duty at the time of his application.

The District Court denied Haw Hibi's naturalization application, which he then appealed to the Ninth Circuit Court of Appeals. After that appelate court denied his appeal, Haw Hibi appealed his case to the US Supreme Court. On October 23, 1973, the US Supreme Court, in a “per curiam” decision (issued in the name of the whole court rather than by individual justices), affirmed the lower courts’ denial of Haw Hibi’s claim.

Affirmative Misconduct

But it was not a unanimous Court decision. Three U.S. Supreme Court justices - William O. Douglas, Thurgood Marshall and William Brennan - ruled in favor of Haw Hibi, criticizing the majority’s opinion for ignoring “the deliberate - and successful - effort on the part of agents of the Executive Branch to frustrate the congressional purpose and to deny substantive rights to Filipinos such as respondent by administrative fiat, indicating instead that there was no affirmative misconduct involved in this case. The record does not support that conclusion.”

The dissent in the Haw Hibi case inspired many Filipino veterans in the US to file their applications for naturalization by arguing that they were denied their Due Process and Equal Protection rights under the US Constitution when the executive branch of the US government thwarted the will of legislative branch which “mandated” that a naturalization examiner be present at the US Embassy in Manila to process naturalization applications.

The Renfrew Decision

In 1976, a number of Filipino WW II veterans, including noted Filipino kundiman singer Ruben Tagalog, filed their applications of naturalization in the US District Court in San Francisco after their applications were denied by the INS. (INS officials refer to the Filipino veterans as "Hibi Veterans.") Their cases were consolidated into one (In the Matter of 68 Filipino War Veterans) and assigned to US District Court Judge Charles Renfrew.

Aside from hearing from the government's attorney and from Donald Ungar, the immigration lawyer of the Filipino veterans, Judge Renfrew also allowed Philippine News publisher Alex Esclamado to present oral arguments on behalf of the Filipino veterans. Esclamado's impassioned plea and Ungar's legal arguments combined to cause Judge Renfrew to rule in favor of the Filipino veterans.

Even though the US government appealed the Renfrew Decision, the administration of then US President Jimmy Carter subsequently withdrew the appeal and allowed the 68 Filipino veterans to be sworn in as US citizens. Following the Renfrew Decision, hundreds of other Filipino war veterans then filed their applications. The large number of applicants eventually caused the Carter Administration to reconsider its position.

In 1978, the INS denied the naturalization application of Dr. Sergio Mendoza, a veteran who then petitioned the US District Court to grant his naturalization application. The District Court obliged, ruling that the government was “collaterally estopped” from opposing the naturalization of Filipino war veterans because it withdrew its appeal of the Renfrew Decision. The government then appealed the Mendoza decision to the Ninth Circuit, which affirmed the lower court’s decision.

No Collateral Estoppel

The government then elevated the Mendoza case to the US Supreme Court. On January 10, 1984, a unanimous Supreme Court rendered a decision, penned by Chief Justice William Rehnquist, reversing the lower court’s decision and ruling that the doctrine of collateral estoppel applies only to private litigants and not to the US government.

The Supreme Court’s Mendoza decision did not deter other Filipino WW II veterans from applying for naturalization. Four years after Mendoza, the US Supreme Court in 1988 was faced with the Filipino veterans issue once again, this time involving 16 Filipino war veterans (INS v. Pangilinan) who had successfully argued that federal courts, as courts of equity, could provide an equitable remedy to a legal wrong, which was that the executive branch of the US government had subverted the mandatory language of the 1940 law enacted by the legislative branch of the government by revoking the authority of the Vice Consul at the US Embassy in Manila to process naturalization applications.

Once again, the US Supreme Court ruled unanimously against the Filipino war veterans. In a decision penned by Justice Antonin Scalia, the Supreme Court ruled that courts do not have the "equitable" power "to confer citizenship in violation of the limitations imposed by Congress in the exercise of its exclusive constitutional authority over naturalization." Pangilinan effectively ended all efforts by Filipino veterans to obtain naturalization through the courts. Relief would now have to come from the US Congress.

Relief sought in Congress

Concerned that hundreds of Filipino war veterans who had applied for naturalization would now be subject to deportation, members of the US Congress led by US Sen. Daniel Inouye (D-Hawaii), Rep. Melvyn Dymally (D-California) and Rep. Tom Campbell (R-California) sponsored bills granting naturalization to Filipino WW II veterans. In 1990, they succeeded in getting the Filipino veterans naturalization bill included in the omnibus Immigration Act of 1990.

To secure its inclusion in the omnibus bill, the sponsors assured their colleagues that the naturalization bill would not involve veteran benefits equity issues. At a hearing on the bill, Rep. Campbell stated that giving the Filipino veterans citizenship will not “make them eligible for federal benefits which they do not receive.” The immigration act that was passed by the US Congress and signed into law by US President George H. Bush specifically stipulated that the law “shall not be construed as affecting the rights, privileges or benefits” of the Filipino WW II veterans.

The Filipino veterans had believed that the Rescission Act's discrimination against them was based on the fact that they were not US citizens. Once they became US citizens, the veterans thought, they would now be eligible for the same benefits enjoyed by their American counterparts. Unfortunately, the law retained the discriminatory provisions of the Rescission Act. US citizenship did not solve the problem.

Finally, 61 years after passage of the Rescission Act, the surviving Filipino war veterans may see its end.

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