dissenting:
It’s hard to figure why the INS didn’t leave well enough alone in this case. However, it didn’t, and we must decide not how we would like Almero’s appeal to come out, but how the statutes in place require it to. Applying the standard of review we are obliged to apply, Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), I have to conclude that it is not unreasonable for the INS to require that service in the military forces of the United States (which includes someone who was in the Philippine Army, the Philippine Scouts, or a recognized guerrilla unit), be proved by a “duly authenticated certification from the executive department under which” he served, and that the relevant “executive department” is an executive department of the United States government as defined in the United States Code. 5 *764U.S.C. § 101 (1988). I therefore dissent from the majority’s conclusion that “duly authenticated certification” can come from a federal district court based on “duly authenticated Philippine documents, including Philippine government records,” Maj. op. at 761-62 (emphasis omitted), or “any authentic Philippine documents proffered” by an applicant, id. at 763 (emphasis omitted); and that “executive department” can include an executive department in the Philippines.
Section 406(a)(1) waives clauses (1) and (2) of section 329(a) of the Immigration and Nationality Act, 8 U.S.C. § 1440(a), if the applicant was born in the Philippines, served honorably in active-duty status under the command of the United States Armed Forces in the Far East, or within the Philippine Army, the Philippine Scouts, or recognized guerrilla units, and “is otherwise eligible for naturalization under section 329” of the Act. Section 406(a)(2) provides that, subject to an applicant’s being otherwise eligible for naturalization under section 329, in applying section 329, service in the Philippines is to be considered to be “honorable service in an active-duty status in the military, air, or naval forces of the United States.” Section 329(b)(3) — which is not waived and on which the applicant’s eligibility is expressly conditioned — provides that military service “shall be proved by a duly authenticated certification from the executive department under which the petitioner served.” 8 U.S.C. § 1440(b)(3).
Even if the phrase, “executive department under which the petitioner served,” may reasonably be read to include an executive department in the Philippines, as Almero argues, it may also reasonably be read as the INS suggests, to mean an executive department of the United States. Because a Filipino serviceman or guerrilla could have simultaneously served in the Philippine armed forces and under the United States Armed Forces, it is not necessary to equate “the executive department under which [the applicant] served” with the executive department in which he served, as the majority does. Further, § 101 of Title 5 of the United States Code lists “executive departments.” There is no precedent for construing “executive department” in IMMACT differently from every other place it appears in the United States Code.
Nor does it appear unreasonable for the INS to require a “duly authenticated certification” from the executive department under which the service was performed, as the statute prescribes. Filipinos who served in the United States armed forces have long satisfied this requirement by submitting a Form N-426, Certificate of Military or Naval Service, with their Application for Naturalization. 8 C.F.R. § 329.4 (1993). Under the majority’s interpretation, when records of service can’t be located at the records center in St. Louis, it is okay for a “factfinder”— instead of an “executive department” — to evaluate documents and make a determination — instead of “a duly authenticated certification” — whether the applicant served in active duty. Maj.Op. at 762-63. While this may be felicitous, it does not square with the statute and is not the only possible reasonable construction.
“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. The INS’s interpretation — that military service can only be proven by a “duly authenticated certification” from the United States Army — is a permissible and reasonable one even if it is not the best one or the one this court might choose in the absence of a prior administrative interpretation. United States v. 313.34 Acres of Land, 923 F.2d 698, 701 (9th Cir.1991). I therefore respectfully dissent.