Foreign Service

How Robert Mautino, of Mautino & Mautino, learned nine languages, snuck a Filipino war veteran into the country, and turned a Canadian into an American just by asking a few questions

Published in 2010 San Diego Super Lawyers — June 2010

Is it true you speak nine languages?

Everyone seizes on that but they’re not all at the same level. Some of it is “Me Tarzan, you Jane.” If you want to speak Spanish I can speak Spanish now. If you want to speak French I’d need a couple of glasses of wine. If you want to speak German, that’d be “Me Tarzan, you Jane.”

 

Which do you speak best?

English.

 

[Laughs] And beyond that?

I suppose Spanish and French, then Swedish. The Norwegian—I have to remember the Norwegian. It’s very similar to the Swedish and Danish. The Finnish is … okay. All the Finns are impressed but I can’t sit down and hold a normal conversation.

 

When did you realize you had a facility for languages?

When I was in high school. That’s why I wanted to join the Foreign Service.

 

Were you in the Foreign Service before law school?

Yeah. When I passed the Foreign Service entrance exam I came to Washington and they posted me to Finland. After two years they were going to send me to Costa Rica or someplace, but there was a guy in the State Department, who’d been there since George Washington was president, who spoke Finnish. And out of the blue he says, “I retire.” So here they were with no one to speak Finnish. A Foreign Service officer who was a friend of mine, who was born in Finland and spoke it perfectly but had been assigned elsewhere, said, “Well, what about Mautino?”

 

What year was this?

I was in Finland when Kennedy was shot. I was in Washington at the Finnish desk in the Bureau of Intelligence and Research for two years; then I went to Mexico for two years before deciding to leave the Foreign Service. And I was shocked to find that I was unemployable. I said, Wait a minute, this is the Foreign Service. This is the toughest entrance exam in the whole government. Twenty thousand people sign up to take the exam and about 200 of them get in. But when you’re looking for a job they say, “What can you make?” I can’t make anything. “What can you sell?” Well, I haven’t sold anything. “See? You’re unemployable.”

 

What led to the law then?

I determined that if I was ever going to be stuck like that again I was going to have something I could do on my own. So I went to law school—determined that I would never do another visa. In the consular business you do a lot of immigration work. And here I am specializing in immigration law. How about that?

 

So why immigration law?

Well, in my day, immigration law was the pimple on the rear end of the law. Nobody paid any attention to it. Employers didn’t pay any attention to it—they weren’t on the pan for anything—and there were a lot of visa fixers, we called them visa fixers, who were charging a lot of money and doing really sloppy work. And when you get screwed up in immigration, you’re really screwed up.

 

And these visa fixers were just basically... ?

Here in Southern California they called themselves notarios: notary publics. But notario in Mexico is a high official, a learned fellow. Some notarios in the United States, they file applications for people who weren’t eligible for anything, and then they got into the system and immigration could come and get them.

 

So they were actually harmful.

Oh yeah. And they’re still around.

 

When did you graduate from law school?

I got out of law school in 1972 and I started doing immigration law, oh, about, ’76, ’77.

 

And in the interim?

I worked for my brother for two years in Whittier, and I became a law professor at a place that’s now called Thomas Jefferson School of Law. Then I teamed up with a guy named Neil Baxley. Baxley was the No. 1 immigration lawyer in San Diego. He was so busy, if you looked at his calendar you couldn’t see the white of the page there was so much writing on it. On the other hand, if you looked at my calendar it was all white. (Laughs)

 

So your brother’s a lawyer, too.

And now he’s a judge.

 

What did your parents do?

My father worked in the movie industry for 57 years. He was a cinematographer. He started out in silent film days, participating in the Tom Mix westerns. He worked for Fox for many years and he used to take me on the set.

 

What’s your favorite movie-set moment?

I remember going on the set of a movie called Twelve O’Clock High, with Gregory Peck, and watching [them film] a scene. Every once in a while it’s on TV and when we come to that scene—I’m obviously not in the movie—but pan the camera over to the left and there I [would be]. If they’d been smart they would’ve panned the camera over on me. (Laughs)

 

You’ve been practicing immigration law for over 30 years; what are some of the big changes you’ve seen?

The biggest change is probably from the Immigration Reform and Control Act of 1986. That law put employers on the pan. Employers now had to check documents and employers could be fined if they hired illegal aliens. Enforcement was spotty at first. They’re starting to get it together a bit.

 

What was the Filipino war veterans’ case about?

Well, there have been laws in the past where people got special naturalization benefits if they served in the military during a time of war. You had to be naturalized by a federal court in those days, but during World War II Congress passed a special law that appointed examiners to travel the world and naturalize people right at the front.

In December of ’41 the Philippines came under Japanese occupation. So for many years [the examiners] couldn’t get to the Philippines to naturalize anybody. The liberation started in October of 1944 when Gen. MacArthur waded ashore at Leyte Gulf. There was a lot of fighting in the islands, and there was especially bitter fighting in Manila. It wasn’t until March of 1945 that Manila was liberated.

Finally in August the government designated an examiner in the Philippines, a vice consul named George Ennis, to naturalize people. But almost immediately the [U.S.] attorney general and the commissioner of immigration had second thoughts. There’s no official reason why they had a change of mind. They just told Ennis to stop and he stopped around October.

In August 1946 they sent another examiner in to naturalize people. But [during the interim] most of the Filipinos were discharged from the Army. So when the examiner came back they weren’t eligible to be naturalized. In effect, they were screwed by the government.

Time goes on. The best, the best immigration attorney in the world is Donald Ungar. And Donald Ungar got some of these cases up in San Francisco. The first litigation was the Hibi case [INS v. Hibi (1973)], and the court said, “Well, because the government purposely made it impossible for these guys to apply, we’re going to apply the legal theory of estoppel.” But the Supreme Court said, “No, you cannot bring estoppel against the government except for egregious conduct.”

 

And how did you get involved?

I represented Mario Litonjua. And Mario Litonjua was a young man who joined the Navy at 18 years of age in Manila, and they put him to Mariveles on the Bataan peninsula. And he was there when Gen. [Edward] King surrendered the Bataan forces, April 9, 1942. But the Navy evacuated him to Corregidor, and they gave him a rifle, and put him on a place called Topside, and he was there when Gen. [Jonathan] Wainwright surrendered the garrison on May 6th. [The Japanese] captured him and took him to a prison camp in the north. If you read some of the literature about the prison camps, I mean, it was worse than horrible. They were dying like flies. Litonjua said the bodies were stacked like cordwood every night. One author said it was a breeding place of disease—diseases that had been conquered by modern medicine rose out of the latrine pits for an encore.

Finally MacArthur comes back, and Litonjua is there and he finally gets discharged from the fleet hospital in April 1946. He says he applied for naturalization; and the Navy records showed correspondence from the Navy to the INS, but INS couldn’t find any record.

We went to court here [in the 1980s] and Judge Thompson was persuaded that the government was right. We appealed to the 9th Circuit where the case was combined with other veterans, and the 9th Circuit reversed. Now when the 9th Circuit reverses, the legal document that gets everything moving is called their mandate. It re-energizes the jurisdiction of the district court so they can naturalize him.

[Afterwards] I got notice of a special hearing, so I went to the hearing. The judge didn’t even look at me. He looked at the government’s attorney and said, “Why do you want me to [delay spreading the mandate]?” “Because we’re going to appeal [to the U.S. Supreme Court].” “You’ve already had several weeks in which to appeal, why haven’t you appealed?” “Because we have 90 days and the government doesn’t file its appeal until the 90th day.”

Judge Thompson said, “I have an order to finish the thing and I’m going to spread the mandate. You can get a stay from the Supreme Court, or you can ask the 9th Circuit to withdraw the mandate, but I’ve got my orders.”

So I piped up finally. “Well, could he be naturalized?” And Judge Thompson said, “If he’s ready when I spread the mandate, he can be naturalized the following Friday.” So Litonjua became a citizen. And when he became a citizen he could immigrate his wife, and we got busy on that, and immigrated his wife. You need five years of permanent residence to be naturalized, but if you’re married to a citizen you only need three. And so she’s married to a citizen, and she becomes a citizen—naturalized after three years.

In the meantime we go up on appeal to the Supreme Court and we lose, and they’re going to take away his citizenship—except since he’s now married to a U.S. citizen, if you take his citizenship on a Monday you can make him a permanent resident on a Wednesday. And if he becomes of a permanent resident, because of his military service, he can naturalize right away.

So we saved his citizenship with a little fast work—putting one over on the government. We felt pretty good about that.

 

At the same time, as a layperson, this case seems like a long, messy, dispiriting affair.

I don’t know. Litonjua became a citizen because we were quick on the trigger. I had another [Filipino veteran] case where the government miscounted. They had to file an appeal within 60 days of the decision and they waited until 65 days and I called them up and said, “Hey, too late.”

The thing that got me was, you think, “For God’s sake, we’re giving amnesty to illegal aliens who haven’t done anything, and these guys put it on the line. They were in prison camps. They were tortured.” The government seemed to ignore that. I don’t know why.

 

What’s your job like on a day-to-day basis?

I do just about everything in immigration law—although I seem to be specializing in federal court work. I do a lot of that and I do a lot of citizenship work. Every now and then I find someone, usually a Canadian, who’s a U.S. citizen and doesn’t know it.

 

How is that possible?

Well, for example, a company called me and said, “We have this guy who’s an expert on scooby doo”—whatever this machine was—“and it’s classified and sophisticated and we brought him down here on a non-immigrant visa, but he has to be escorted by a citizen every time we work on the thing and it’s getting to be too much. We want him to be naturalized.” I said, “Well, first he has to be a permanent resident, then he has to wait five years …” Oh my God, the world will come to an end.

I said, “Let me talk to him, he might be a citizen.” So I talked to him. Where was your mother born? “She was born in Canada.” Where were her parents born? “They were born in the United States.”

Right there I can show his mother was a citizen of the United States.

Did she ever live in the States? “No.” So she didn’t pass citizenship to you. “But I do have an ancestor who was born in Pennsylvania in 1855.” OK, tell me about him. “Well, in 1860, at the beginning of the Civil War, the father of the family took everybody back to Scotland to get them out of the line of fire. The next ancestor was born in 1890 in Scotland. He emigrated to the States but he didn’t [do well] here so he moved to Canada.”

So under the law of the time, the children of the great-grandfather, born in Pennsylvania in 1855, were citizens at birth, because they had a citizen father with prior U.S. residence. So the grandfather, born in Scotland in 1890, was a citizen. The grandfather came to the States, and we had old papers from his naturalization days, although he never naturalized. But he was a citizen and nobody knew it. And he moved to Canada. The next guy was born, and since he had a citizen father with prior residence, he was a citizen.

So now my Canadian had two citizen parents. We put all of that together and won the case. And the State Department was so impressed they asked permission to use that case as a training tool.

 

What about attitudes toward immigration—

Wait a minute, let me just tell you how brilliant we are around here.

The whole thing depended on this great-grandfather, born in Pennsylvania in 1855. We couldn’t find anything about this cat. So we ordered up the 1890 census of Scotland; and in the census it said that this guy, 35 years old, was born in New Jersey. So we went to New Jersey and found a record.

 

The Pennsylvania information was incorrect.

Right. That was just the family rumor.

 

It’s a rarity, I assume, when you can pull that off.

It’s a rarity, but you never know how rare if you don’t ask. I ask everybody. Guy comes in, wants to use the restroom. “Wait a minute, where were you born?” “I just want to use the restroom!”

 

What about the attitudes toward immigration in the country over the last 30 years? Right now it’s a noisy issue. It seems it wasn’t always a noisy issue.

It wasn’t a noisy issue. If there was some little thing screwed up in the law, it used to be you could go to Congress, or get the State Department to agree, that maybe we should tweak this and fix it. Now everything’s politicized. Oh, you’re an alien lover, and here we are in a recession, and this and that.

The problem with immigration is it’s a multifaceted problem and people like to think of simple solutions. “People should be deported.” Okay, go ahead and deport them. But then you’re going to have to spend more money to get more officer

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