NORRIS, Circuit Judge:
These appeals involve the naturalization petitions of 15 Filipino nationals who served honorably in the United States armed forces during World War II. All 15 veterans claim they are entitled to American citizenship under §§ 701-705 of the Nationality Act of 1940, Pub.L. No. 76-853, 54 Stat. 1137, as amended by the Second War Powers Act § 1001, Pub.L. No. 77-507 § 1001, 56 Stat. 182 ("1940 Act"). The naturalization petitions were opposed by the Immigration and Naturalization Service (INS) and denied by the district courts. This court's jurisdiction over these appeals rests on 28 U.S.C. § 1291 (1982).
In March 1942, Congress amended the 1940 Act to provide an easier road toward American citizenship for all non-citizens who served honorably in the United States armed forces. Non-citizen servicemen were exempted from such naturalization requirements as five years of residency in the United States and proficiency in the English language. 1940 Act, § 701. As the legislative history of these amendments makes clear, Congress's intent was to provide that "if a man is ready to fight for our country we ought to give him the benefits of citizenship without the normal peacetime requirements of time, declaration of intention, and so forth...." See Statements in Executive Session on S. 2208 (Second War Powers Act), Senate Committee on the Judiciary, January 19, 1942. More importantly, for present purposes, non-citizen servicemen were excused from the requirement that they be naturalized by courts in the United States. Congress provided that they may be naturalized outside the United States before any representative of the INS designated for that purpose by the Attorney General. 1940 Act, § 702. As Oscar Cox, General Counsel, Office for Emergency Management, explained to the Senate Committee on the Judiciary, the goal was to enable qualified servicemen to "be naturalized right at the camps instead of having to go great distances to the particular courts that now have the power to naturalize." Statements in Executive Session on S. 2208, Second War Powers Act, Senate Committee on the Judiciary, January 19, 1942 at 29. A provision comparable to § 701 had been in effect during World War I. "The only new feature of this, from [World War I], really, is the one that they can be naturalized without having to appear before the court.... [The lack of such a feature in World War I] caused a great deal of difficulty." Id. at 30.
In August 1945, two months after the liberation of the Philippine Islands, the Immigration and Naturalization Service (INS), designated our Vice Consul in Manila, George Ennis, to naturalize military personnel under the 1940 Act. Officials of the Philippines, anticipating their independence on July 4, 1946, soon expressed concern that their newly emerging nation would suffer a manpower drain if Filipinos who served in our military forces were free to
The Attorney General's revocation of Mr. Ennis's naturalization authority in 1945 has spawned extensive litigation over the rights of Filipinos who served in our military forces in World War II. See, e.g., INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973); Mendoza v. United States, 672 F.2d 1320 (9th Cir.1982), vacated and remanded, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984); Olegario v. United States, 629 F.2d 204 (2d Cir.1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); In re Naturalization of 68 Filipino War Veterans, 406 F.Supp. 931 (N.D.Cal.1975). Because the background and history of this litigation is accurately chronicled in Olegario, 629 F.2d at 207-16, we need not repeat it in detail. Instead, we turn directly to the naturalization petitions of the 15 Filipino veterans now before us.
Case No. 80-4543 involves the consolidated appeals of 14 Filipino veterans whose naturalization petitions were denied by the district court on the ground that they were filed after the December 31, 1946 statutory deadline. The INS has stipulated that all 14 qualify as Category II veterans under the classification system adopted by Judge Renfrew in In re Naturalization of 68 Filipino War Veterans, 406 F.Supp. 931 (N.D.Cal.1975) (68 Filipinos). Judge Renfrew divided the 68 petitioners involved into three categories. Category I consisted of those veterans who had taken some affirmative steps to be naturalized before the December 31, 1946 statutory cut-off date.
The INS did not challenge Litonjua's status as a Category II veteran in its briefs. It asserted for the first time in oral argument that Litonjua does not qualify as a Category II veteran because he sought naturalization in Seattle, Washington after his discharge.
In sum, Litonjua, Pangilinan and the other 13 petitioners whose appeals are before us are Category II veterans. They were stationed in the Philippines during the nine-month period when there was no naturalization examiner in the Philippines, and they would have qualified for American citizenship under the 1940 Act had they filed naturalization petitions before the statutory cut-off date of December 31, 1946. Petitioners make two arguments in support of their claim that they are entitled to citizenship notwithstanding the untimeliness of their petitions:
The INS's contention that the claims of Filipino war veterans to citizenship under the 1940 Act are barred by the political question doctrine has been raised in several prior cases. The INS relies upon an unpublished district court decision. See In re Naturalization Petition of Inton, No. SA-79-CA-284 (E.D.Tex. July, 3, 1980). In contrast, both Judge Renfrew in 68 Filipinos, 406 F.Supp. at 943-48, and the Second Circuit in Olegario, 629 F.2d at 216-19, held that the claims of Filipino war veterans based upon the Attorney General's revocation of Vice Consul Ennis's naturalization authority are justiciable.
We find the reasoning of both Judge Renfrew and the Second Circuit to be persuasive. In rejecting the government's political question argument, Judge Renfrew applied the six-pronged test of Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). Noting that not all cases touching upon foreign affairs are nonjusticiable, 406 F.Supp. at 945, he reasoned that the judicial standards of equal protection and due process are well-developed; that Congress had established the relevant policy in the 1940 Act, leaving no "initial policy determination of a kind clearly for nonjudicial discretion," id. at 946 (quoting Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710); that because it was unlikely that the foreign policy of the United States would be affected by the court's consideration of the merits of the case, there was no special need for unquestioning adherence to a political decision already made, id. at 947; and that there was little likelihood that "multifarious pronouncements by various departments on one question" would embarrass the United States. Id. at 945-47.
In Olegario, the Second Circuit agreed with Judge Renfrew's analysis. 629 F.2d at 216-19. So do we.
The INS's second threshold contention is that the citizenship claims of the Filipino war veterans are barred by section 310(e) of the 1952 Immigration and Nationality Act, 75 Stat. 656, 8 U.S.C. § 1421(e) (1961). Section 310(e) was enacted in 1961 in response to several judicial decisions that had broadly construed the savings clause of the Immigration and Nationality Act of 1952 § 405(b), Pub.L. No. 82-414, 66 Stat. 242, to permit naturalization petitions to be filed under either the 1940 Act or the 1952 Act. See 1961 U.S.Code Cong & Ad.News, at 2950, 2981-82. Section 310(e) explicitly required that all naturalization petitions be filed under the 1952 Act, thereby closing the option of petitioning under the less stringent requirements of the 1940 Act. See Olegario, 629 F.2d at 211-12.
The INS argues that Section 310(e) bars Filipino war veterans from applying for naturalization under Section 701 of the 1940 Act. We disagree. While it is true that in enacting section 310(e) in 1961, Congress clearly intended to foreclose future petitions under the 1940 Act, there is no basis in logic or precedent for concluding that Congress intended to foreclose Filipino war veterans from litigating claims that
The INS's argument that the war veterans' claims are barred by laches is easily disposed of. Once again, we agree with the Second Circuit in Olegario that the government has made no showing that it has been prejudiced by any lack of diligence on the part of the veterans in pursuing their claims. Id. at 221-22.
The INS's fourth and final threshold argument is that judicial relief in these cases is foreclosed by the Supreme Court's decision in INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). Once again, we join both Judge Renfrew in 68 Filipinos, 406 F.Supp. at 942-43, and the Second Circuit in Olegario, 629 F.2d at 221, in rejecting this argument. In Hibi, the Court held that the government's failure to advise a Filipino war veteran of his rights under the 1940 Act and to station a naturalization officer in the Philippines during 1945-46 did not rise to the level of affirmative misconduct sufficient to invoke the doctrine of equitable estoppel against the United States. In the cases now before us, however, petitioners do not rely upon the doctrine of equitable estoppel. Rather they raise statutory and constitutional arguments neither presented to nor addressed by the Supreme Court in Hibi. Accordingly the doctrine of stare decisis is inapplicable.
We now address the merits of petitioners' statutory claim: that the Attorney General acted in excess of his authority and in contravention of the will of Congress when he withheld naturalization authority from the Philippines for the nine-month period from October 1945 to August 1946.
In enacting the Second War Powers Act of 1942, Congress clearly intended to provide for overseas naturalization of non-citizen military personnel under the 1940 Act. See page 1093 supra. It is equally clear that Congress intended to afford the Attorney General a measure of authority in implementing this statutory mandate. Section 705 of the 1940 Act provides that "[t]he Commissioner, with the approval of the Attorney General, shall prescribe and furnish such forms, and shall make such rules and regulations as may be necessary to carry into effect the provisions of this Act."
The INS argues that the authority granted to the Attorney General by Section 705 includes the discretion to decide when and where to make the benefits of the 1940 Act available to eligible servicemen:
Brief for Appellee at 12.
We are astonished that the INS, in resisting citizenship for these Filipino war veterans, would resort to the argument that Congress surely did not intend to send civilian naturalization examiners into enemy-held territory. Of course Congress could not have so intended. But here we are dealing with post-war Manila, not enemy-held territory. The issue before us is whether Congress intended to authorize the Attorney General to deny a class of eligible servicemen — in this case Filipinos — the benefits of the Act solely on the basis of domestic concerns voiced by prospective members of the government of the soon-to-be-independent Philippines. The INS's argument about naturalization examiners in the Philippines during the Japanese occupation is patently irrelevant.
We also find the INS's argument about the Attorney General's discretion to rotate naturalization officers "from post-to-post" to be wide of the mark. No one could seriously contend that Congress mandated the Attorney General to make naturalization examiners continuously available to alien servicemen wherever they may be stationed. But that is beside the point. Manila was hardly a military outpost, and the Attorney General did not revoke Vice Consul Ennis's naturalization authority as part of a program of rotating naturalization examiners from post to post. Nor did he revoke that authority because of the unavailability of American civilians such as George Ennis to serve as naturalization examiners in Manila. Indeed, there is no indication that Mr. Ennis stopped serving as Vice Consul in Manila when his naturalization authority was revoked. Hence we reject the INS's attempt to justify the withdrawal of naturalization authority from the Philippines as though it were an exercise in rotating limited personnel to different military posts.
The second prong of the INS's statutory interpretation argument is based upon the inherent powers of the executive branch in the field of foreign affairs. While acknowledging that the statute and the legislative history are silent on the issue, the INS argues that Congress implicitly delegated to the Attorney General the discretion to selectively deny the benefits of the 1940 Act on foreign policy grounds.
Beyond reciting the platitude that the executive has broad authority in the field of foreign affairs, see, e.g., Chicago & Southern Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936), the INS fails to develop the argument that it was the implied will of Congress to cloak
In Youngstown, Justice Jackson provided a tripartite analytical framework for evaluating claims of executive authority. The authority of the executive, he wrote, would vary according to the nature and extent of Congressional action and authority in the area. Id. 343 U.S. at 635, 72 S.Ct. at 870 (Jackson, J., concurring). Thus, executive authority is at its zenith and the executive "may be said ... to personify the federal sovereignty" when the executive action is either expressly or implicitly authorized by Congress. Id. at 635-36, 72 S.Ct. at 870 (Jackson, J., concurring); see, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668-69, 101 S.Ct. 2972, 2980-81, 69 L.Ed.2d 918 (1981) (executive authority to suspend claims against Iran pending in federal courts upheld because of Congressional acquiescence in settled practice of executive to settle claims between American citizens and foreign governments). Conversely,
343 U.S. at 637-38, 72 S.Ct. at 871 (Jackson, J., concurring).
In the instant cases, there is little room for doubt that the Attorney General's revocation of Vice Consul Ennis's authority was "incompatible with the expressed will of Congress." Id; see INS v. Miranda, 459 U.S. 14, 18, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982) (the Attorney General's "error was clear" when he revoked Ennis's authority in 1945). In clear and unambiguous terms Congress provided (1) that non-citizens (Filipinos, in this case) who served honorably in the military forces of the United States during World War II may be naturalized if they met liberalized standards, § 701; (2) that any such person serving abroad may be naturalized outside of the United States, § 702; (3) that the petitions of such persons serving abroad "shall be made and ... filed with, a representative of the Immigration and Naturalization Service designated by the Commissioner," id. (emphasis added); and (4) that
Thus the language of the statute is clear. It contains no express or implied delegation of authority to the Attorney General
Thus, in Justice Jackson's language, the Attorney General's withdrawal of naturalization authority from the Philippines was "incompatible with the expressed will of Congress" and executive authority was, therefore, "at its lowest ebb." Youngstown, 343 U.S. at 637-38, 72 S.Ct. at 871 (Jackson, J. concurring). Accordingly, we reject the executive branch's claim that its inherent power over foreign affairs is so pervasive that we should disregard the expressed will of Congress and find an implied intent to defer to the Attorney General's judgment that benefits under the Act should be withheld from Filipinos in response to postwar manpower concerns expressed by Philippine officials.
We are especially reluctant to find an implied congressional intent to delegate such wide discretion to the executive branch in the field of naturalization. Under the Constitution, U.S. Const. Art. I, § 8, cl. 4, the power of Congress over immigration and naturalization is virtually plenary. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) ("over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens"). Although Congress has at times demonstrated a willingness to delegate broad discretionary authority to the Attorney General in the field of immigration and naturalization,
Finally, it is hard to believe that Congress intended to license the Attorney General to deny the benefits of the 1940 Act to Filipinos as a class.
In sum, we believe that the Congress of 1942, preoccupied with the war effort and our nation's honor, would have been appalled at the notion that its generous offer of citizenship for alien servicemen was freely terminable at the discretion of the Attorney General, especially on a discriminatory basis. As the Supreme Court has said in a similar context,
Kent v. Dulles, 357 U.S. 116, 128-29, 78 S.Ct. 1113, 1119-20, 2 L.Ed.2d 1204 (1958). Clearly the right to citizenship is even more precious than the right to a passport. Thus we cannot accept the INS's argument that we should read into the 1940 Act a broad grant of implied authority to curtail the benefits of the Act to eligible servicemen. Because a "precious right" was granted by the 1940 Act, we must construe the authority granted to the Attorney General narrowly. Id.
In rejecting the INS's expansive interpretation of the 1940 Act, we not only vindicate the right to citizenship claimed by the Filipino war veterans who qualified for citizenship under the Act; we also avoid deciding this substantial constitutional question. We thus observe the teaching of the Supreme Court that a statute is "to be construed, if such a construction is possible, to avoid raising doubts about its constitutionality." St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 2147, 68 L.Ed.2d 612 (1980). Judge Renfrew's decision in 68 Filipinos that the Attorney General's action denied Filipino war veterans the equal protection of the laws in violation of the Fifth Amendment attests to the seriousness of the constitutional problem we would confront if we accepted the INS's view of the Attorney General's authority under the statute.
We recognize that our decision that the Attorney General exceeded his statutory authority and thwarted the will of Congress when he revoked Vice Consul Ennis's naturalization authority brings us into conflict with the Second Circuit in Olegario. While acknowledging that the Attorney General "did not have unbridled discretion" in implementing the 1940 Act, 629 F.2d at 226, and that the "unilateral" withdrawal of naturalization authority from the Philippines temporarily frustrated Congress's immediate objective in extending its offer of citizenship to members of our military forces, id., the Second Circuit found an "implicit intent" on the part of Congress to grant the Attorney General authority to "consider the foreign affairs ramifications of a particular mode of enforcement and to suspend implementation to avoid a confrontation." Id. With all respect, we find the Second Circuit's analysis in Olegario to be unpersuasive. Moreover, the Second Circuit decided Olegario before the Supreme Court stated in INS v. Miranda, 459 U.S. 14, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982), that the Attorney General's "error was clear" when he revoked Vice Consul Ennis's naturalization authority in 1945. Id. at 18, 103 S.Ct. at 283.
We hold that, in creating "the rather anomalous situation that while we recognize in law the legal right of these persons to the benefits under the  Act we have, from an administrative standpoint, made it impossible for such persons to acquire these benefits,"
In reviewing naturalization petitions, federal courts sit as courts of equity. Fedorenko v. United States, 449 U.S. 490, 516-18, 101 S.Ct. 737, 752-53, 66 L.Ed.2d 686 (1980). When reviewing agency action, a federal court has broad remedial powers and may "adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action." Legal Aid Society of Alameda County v. Brennan, 608 F.2d 1319, 1342 (9th Cir.1979) (quoting Ford Motor Co. v. NLRB, 305 U.S. 364, 373, 59 S.Ct. 301, 307, 83 L.Ed. 221 (1939)); see also Harper v. Levi, 520 F.2d 53, 60 (9th Cir.1975) ("courts are empowered to rectify agency action erroneously taken...."). "The essence of equity jurisdiction," as Justice Douglas wrote,
Hecht Co. v. Bowles, 321 U.S. 321, 329-30, 64 S.Ct. 587, 591-92, 88 L.Ed. 754 (1944); see also Lemon v. Kurtzman, 411 U.S. 192, 200-01, 93 S.Ct. 1463, 1469, 36 L.Ed.2d 151 (1972) ("equitable remedies are a special blend of what is necessary, what is fair, and what is workable.... In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests...."); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 12, 91 S.Ct. 1267, 1274, 28 L.Ed.2d 554 (1970) ("Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies."); Graves v. Romney, 502 F.2d 1062, 1064 (8th Cir.1974) ("The goal of equitable relief ... is to restore the plaintiff to the enjoyment of the right which has been interfered with to the fullest extent possible...."), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 440 (1975).
Notwithstanding these deep-rooted precepts of equity, the INS argues that we have no authority to redress the error of the Attorney General in withdrawing naturalization authority from the Philippines by granting the naturalization petitions of war veterans who were stationed there at the time. The INS would have us limit our equitable remedies to the restoration of naturalization authority in the Philippines, which would be an empty gesture at this late date. We reject this invitation to render impotent the federal judiciary's traditional powers of equity. Rather we grant the only effective remedy available to "rectify the agency action taken," Harper v. Levi, 520 F.2d at 60: granting citizenship to the 15 Filipino war veterans whose naturalization petitions are now before us. There is simply no other way to restore the lost opportunity for citizenship that Congress offered them as a just reward for their military service in World War II.
As Judge Renfrew wrote in 68 Filipinos:
68 Filipinos, 406 F.Supp. at 951.
The district court orders denying these petitions for naturalization are reversed. The cases are remanded for the entry of orders naturalizing the 15 Filipino war veterans whose petitions are before us in these appeals.
REVERSED and REMANDED.
Commonwealth of the Philippines — 16,356,000 Puerto Rico — 1,869,254 Hawaii — 423,330 Alaska — 72,524 Panama Canal Zone — 51,827 Virgin Islands — 24,889 Guam — 22,290 Samoa — 12,908 Statistical Abstract for 1940.