The opinion of the court was delivered by: ACKERMAN
Romulo de Roma became a citizen of the United States through naturalization on order of this Court on December 12, 1983. The District Director of Immigration and Naturalization at Newark, New Jersey, hereinafter referred to as I.N.S., now moves to have said order of this Court, insofar as it relates to Mr. de Roma, reopened and held in abeyance, to have the petition for naturalization of Mr. de Roma restored to a pending status, to have a further determination on the merits of petitioner's qualifications for naturalization made, and to have said order vacated in the event Mr. de Roma is found ineligible for naturalization.
This motion is brought pursuant to Section 340(j) of the Immigration and Nationality Act, 8 U.S.C. § 1451(j) and Rule 60(b) of the Federal Rules of Civil Procedure.
Mr. de Roma's naturalization was based on the Nationality Act of 1940, as amended on March 27, 1942, 56 Statutes 176 et seq. The application of this Act to Filipino World War II veterans has a complex history which provides the relevant background to the instant action. This history was very thoroughly described in the case of In the Matter of Petitions for Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D.Cal.1975) at pages 934-936 which I now quote:
"On March 27, 1942, Sections 701-705 were added to the Nationality Act of 1940 by the Second War Powers Act of 1942, ch. 199, 56 Stat. 176 et seq., as amended. Section 701 exempted alien servicemen who served outside the continental limits of the United States from certain of the usual requirements for naturalization, including those of a period of residence in the United States and literacy in English. As amended by subsequent acts of Congress, it was ultimately specified that all petitions filed under Section 701 had to be filed no later than December 31, 1946. Section 702 provided for the naturalization overseas of persons eligible for naturalization under Section 701 who, while serving honorably in the military or naval forces of the United States, were not within the jurisdiction of any court authorized to naturalize aliens. Section 705 directed the Commissioner of Immigration and Naturalization, with the approval of the Attorney General, to make such rules and regulations as were necessary to carry into effect the provision of the act.
"Pursuant to the act, officers of the INS were sent to overseas military posts to effect the naturalization of eligible members of the United States armed forces. Between 1943 and 1946, these officers traveled from post to post through England, Iceland, North Africa, and the islands of the Pacific, naturalizing thousands of foreign nationals. In the Phillippines, of course, naturalization of alien servicemen was impossible during the Japanese occupation. However, with the liberation of the Philippines, implementation of the act commenced, following resolution of two preliminary problems of statutory interpretation concerning the eligibility of Filipino servicemen under Sections 701-702.
"In early August of 1945 the INS designated Mr. George H. Ennis, Vice Consul of the United States at Manila, to naturalize aliens pursuant to Section 702.
"Pursuant to Section 10(a) of the Philippine Independence Act of 1934, ch. 84, 48 Stat. 463, the Philippines were to become a fully independent, self-governing country on July 4, 1946. Apparently fearful that large numbers of Filipinos would be naturalized and emigrate to the United States on the eve of independence, an unidentified official of the Philippine Government conveyed to the United States Department of state the Philippine Government's concern that Filipinos who had always been domiciled in the Philippines were being naturalized by Vice Consul Ennis. Based on this concern, on September 13, 1945, the Commissioner of the INS wrote to the Attorney General requesting that the authority previously granted to Vice Consul Ennis to naturalize aliens be revoked, and that no new naturalization officer be named. The Attorney General approved this request on September 26, 1945, and the authority of Vice Consul Ennis was immediately revoked. However, notice of that revocation did not reach Ennis until late October, 1945, for he continued to naturalize aliens until October 26, 1945. It was not until August, 1946, that another naturalization agent, Mr. P. J. Philips, was appointed for the Philippines. Approximately 4,000 Filipinos were naturalized by Mr. Philips under Section 702 between August and December 31, 1946, when the act expired. Thus, contrary to the express intentions of Congress, Filipinos eligible for naturalization under Section 702 were denied the opportunity to take advantage of the act for a period of approximately nine months."
Turning now to the matter before me, the United States Department of the Army certified to the INS on March 10, 1980, that Mr. de Roma served in the Philippine Commonwealth Army in an active duty status from August 22, 1944 to September 26, 1945. Mr. de Roma contends that his service ended March 18, 1946, but, for purposes of this motion, I do not need to decide that disputed fact.
By affidavit, Mr. de Roma asserts that on May 30, 1946, he proceeded to the office of Commissioner Paul McNutt in Manila to apply for citizenship, but he was advised that Commissioner McNutt had been withdrawn.
The INS alleges that these facts establish that Mr. de Roma was not in active service at the time he attempted to apply for citizenship, and thus, it was due to inadvertence and mistake that Mr. de Roma's naturalization petition was granted.
A number of cases have been brought where Filipino World War II veterans have attempted to estop the government from opposing their naturalization petitions because of the cut-off date of December 31, 1946 provided for in Section 701 of the Nationality Act of 1940, since the government, by withdrawing its examiner from the Philippines had effectively denied Filipino Veterans the opportunity to apply before the cut-off date.
In INS v. Hibi, 414 U.S. 5, 94 S. Ct. 19, 38 L. Ed. 2d 7 (1973) the Supreme Court refused to estop the government from relying on the December 31, 1946 expiration date and denied ...