Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1989)

MEMORANDUM^* 

The United States appeals from the District Court's order granting the naturalization petition of appellee Francisco Zandueta Nisce. We reverse.

Appellee is a Filipino national who served honorably in the United States armed forces during World War II. Appellee filed a naturalization petition, claiming that he was entitled to naturalization under the now-expired Sections 701 and 702 of the Nationality Act of 1940. The District Court ruled that appellee was both a Category I and a Category II war veteran as defined in Matter of Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931 (N.D. Cal. 1975), and granted his naturalization petition.

Appellee concedes that INS v. Pangilinan, 108 S. Ct. 2210 (1988), bars the naturalization under Sections 701 and 702 of those war veterans classified in 68 Veterans as Category II veterans. However, he argues that Pangilinan does not bar his naturalization in his capacity as a Category I veteran. This argument is foreclosed by Agcaoili v. Gustafson, 870 F.2d 462 (9th Cir. 1989) (per curiam), which held that the rule of Pangilinan includes Category I veterans.

Appellee argues that Agcaoili conflicts with this Circuit's prior decision in Ortega v. INS, 861 F.2d 600, 603 (9th Cir. 1988), which appellee contends held that Pangilinan does not apply to Category I veterans. The Ortega court was presented with no opportunity to decide whether Pangilinan's rule applies to Category I veterans, and did not do so. See id. (" [T]he district court erred in classifying [Ortega] as a Category I veteran."). Accordingly, there is no conflict.

REVERSED.