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Excerpted From: Jayanth K. Krishnan, The 'Impractical and Anomalous' Consequences of Territorial Inequity, 36 Georgetown Immigration Law Journal 621 (Winter, 2022) (210 Footnotes) (Full Document)


JayanthKKrishnanThe year 2022 will mark a century since the Supreme Court issued its decision in Balzac v. Porto (Puerto) Rico. In short, Balzac dealt with whether Puerto Ricans, who had been recognized as U.S. citizens by the Jones Act of 1917, could claim a constitutional right to a jury trial under the Sixth Amendment. Chief Justice Taft, writing for a unanimous Court, answered that question in the negative. In his opinion, because “Congress did not have such an intention” to incorporate Puerto Rico into the Union, the island's residents could not assume that they necessarily possessed this constitutional right.

For years, researchers have devoted time to examining Balzac. Interestingly, there is one part of the Court's decision that has provided some solace to those disappointed by its continued status as good law. In describing the history of how Puerto Rico moved from being held by Spain to coming “under the dominion of the United States,” Chief Justice Taft noted that it would be “anomalous” if the territory's residents were not “given the same designation and status as those living in the United States.” Fortunately, as he went on to say, the Jones “[A]ct gave them [i.e., Puerto Ricans] this boon” of citizenship.

This Article will focus on another “unincorporated territory” of the United States: American Samoa. Presently, the United States has fourteen such territories, with five of them being inhabited: Puerto Rico, Guam, the Northern Mariana Islands, the U.S. Virgin Islands, and American Samoa. For individuals born on four of these territories, they become citizens automatically at birth.

American Samoa is the one territory where birthright citizenship is not recognized. Instead, individuals born there are deemed “noncitizen U.S. nationals”; they enjoy some, but not all, of the protections afforded by the Constitution. For example, noncitizen nationals are precluded from voting for members of Congress or the President. They are also ineligible for federally elected positions and can be barred from other federal and state jobs, as well as certain federal and state social welfare benefits. Furthermore, unlike the birthright privileges recognized for “residents of [other] U.S. territories,” noncitizen nationals from American Samoa must go through the naturalization process to be recognized as citizens, similar to what is required of lawful permanent residents. Under the language of Balzac, such an arrangement would appear to be clearly anomalous. Yet this has been the state of affairs for well over a century.

Interestingly, though, in 2020, federal district court Judge Clark Waddoups invoked the point regarding anomalousness from Balzac. He held that American Samoans had a right to be recognized as U.S. citizens under the Fourteenth Amendment's Citizenship Clause, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.” The case before Judge Waddoups involved John Fitisemanu, who was born in American Samoa but since 2000 had “been a taxpaying, U.S. passport holding resident of Utah.” He, together with a group of similarly situated plaintiffs, wished to vote in the 2020 presidential election and claimed they could do so because they were citizens. Judge Waddoups agreed with their position, finding that the noncitizen national category was anomalous and unacceptable.

However, “[i]n June 2021, a divided, [three-judge] panel of the Tenth Circuit reversed Judge Waddoups”' decision. Drawing heavily from a 2015 D.C. Circuit Court of Appeals ruling, two of the three judges held that the responsibility of determining American Samoan citizenship was with Congress, not the judiciary. One of these two judges, Judge Carlos Lucero, did something strange: He contended that it would be “anomalous,” as well as “impracticable,” for American Samoans to expect recognition as U.S. citizens from birth.

In dissent, Judge Robert Bacharach pointed out that the real anomaly, in fact, was that American Samoans were the only people from a U.S. territory without birthright citizenship. Professor Steve Vladeck has convincingly echoed these sentiments, explaining that, by making this move, Judge Lucero “misapplied the Supreme Court's precedents (which ask whether recognition of the right is impractical or anomalous from the federal government's perspective)” (italics added).

This Article backs the persuasive interpretation of the Citizenship Clause and Supreme Court case law articulated by Judge Bacharach, Judge Waddoups, and Professor Vladeck. As will be discussed, this reasoning, which has prominent scholarly support, is based on clear and sound constitutional analysis. In fact, as of this writing, the plaintiffs have requested the Tenth Circuit to rehear the case en banc. But beyond the Fourteenth Amendment justification, this Article will also address a crucial administrative basis for supporting American Samoan birthright citizenship, which to date has received scant attention.

Consider that this case from the Tenth Circuit (as well as that of the D.C. Circuit) began in an Article III district court. Yet the vast majority of litigation involving noncitizens does not originate in the federal judiciary. Instead, it is the Department of Justice's (DOJ) immigration court system that hears the bulk of these matters. Cases come in front of one of more than 60 immigration courts located throughout the country, where a single immigration judge presides. From there, the case can be taken to the DOJ's Board of Immigration Appeals (BIA), and thereafter, petitions can be brought in front of an Article III federal appellate court.

This Article will highlight an overlooked but empirically significant point. Namely, as a way of curing what otherwise would be anomalous, unjust administrative results, the BIA has had a history of delivering favorable judgments for American Samoans--including rulings on a range of residency and status-based cases dating back to the late 1940s. Given that the BIA is staffed with professional, career civil servants who typically serve across multiple presidential administrations, these officials, in theory, represent what Max Weber might call efficient, rational, and perhaps most importantly, expert bureaucrats. Under the Weberian framework, their expertise informs their decisions and shapes the public policies that manifest. Normatively, in the Weberian vein, this is what should be occurring. After all, these officials are well-versed in the subject matter and are closest to the situation on the ground.

For many observers, hearing that the BIA has been positively disposed towards a group of noncitizens will be a surprise. Numerous reports have expressed deep dismay at how the Justice Department has politicized the BIA and how BIA judges have given short shrift to the rights of noncitizens. In my own writings, I have been particularly critical of the BIA in terms of how certain immigrants, such as asylum seekers and victims of domestic abuse, among others, have been treated.

However, for three decades beginning in 1947, the BIA delivered a series of precedent-setting judgments that showed sympathy for the plight of American Samoan litigants. Why the BIA sided with this set of “discrete and insular” claimants is difficult to know. One possible explanation is that American Samoans were not highly visible then; thus, their claims did not catch the attention of those who were opposed to broadening citizenship rights to disenfranchised communities. If true, then the BIA would not have been as vulnerable to external political pressure, with the results in these cases being made more squarely on the merits. Assuming these decisions were made in an expert-driven and unbiased way, it may be worthwhile for the federal courts to closely examine these past judgments in deciding whether American Samoans are indeed birthright citizens.

The format for this Article is as follows: Section II will outline the history of the recent American Samoan citizenship decision from the Tenth Circuit. Sections III and IV will examine the administrative cases that gradually enhanced the rights of American Samoans. They will also explain how the BIA's disapproval of the government's actions can provide lessons for the federal courts, as they currently grapple with the broader Fourteenth Amendment arguments for whether birthright citizenship should be granted to this community. Section V will briefly explore the practical implications of American Samoans lack of birthright citizenship.

To be sure, excellent work has been done on the significant challenges involving citizenship faced by those from the other territories--Puerto Rico in particular. Yet the starting point for American Samoans is different. Those from Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands today can make their claims as U.S. citizens who are entitled to protection against unconstitutional government infringements. American Samoans need citizenship before they can demand similar safeguards. The hope here is that this analysis can aid the cause of claimants from America's only inhabited territory where birthright citizenship remains unrecognized.

[. . .]

This Article has shown that the government has repeatedly sought to minimize--and occasionally outright erase--the basic rights of American Samoans through various immigration restrictions. However, the BIA, which has been justifiably chastised for ignoring the rights of noncitizens in other contexts, surprisingly attempted to protect American Samoans from such government overreach for nearly three decades, beginning in the 1940s. Given its previous decisions, perhaps the federal courts ought to ask: what might the BIA do on the birthright citizenship question if it had a say?

In one sense, the immigration approach proposed in this Article supplements Judge Bacharach and Judge Waddoups' decisions in Fitisemanu, which primarily focused on the constitutional and theoretical incongruity of not treating American Samoans as birthright citizens. Yet the immigration angle is important to reflect upon as well. There are practical, tangible reasons for why this lack of citizenship recognition is a substantive hindrance.

For example, along with not being permitted “to vote in federal, state or local elections ... [American Samoans cannot] run for elected office, serve on a jury or apply for certain government jobs that require the candidates to be U.S. citizens.” Moreover, while 10 U.S.C. Sec. 504(b)(1)(A) expressly provides that “a national of the United States” can qualify to “be enlisted in any armed force,” advancing up the ladder is a different story. Stewart Smith notes that in the Army:

... regulations prohibit granting a security clearance, to non-U.S. citizens. Additionally, some Army jobs may only be performed by U.S. citizens, regardless of Security Clearance requirements. There are many jobs in the military that require a security clearance, such as Special Operations, Armor, Air Defense Artillery, Military Police, Intelligence, Chemical, Biological, Radiological, and Nuclear Specialist as well as the Officer Corps. These are the types of jobs that require Secret to Top Secret Security Clearances that only citizens may hold.

Similarly, Rose Cuison Villazor has discussed how “[m]any public sector jobs require U.S. citizenship as a condition of employment, a prerequisite that has been declared constitutional” by the Supreme Court. In fact, one such sector was the focus of a 2016 Department of Justice report that found that “[m]any law enforcement agencies also require candidates to be U.S. citizens ... [and that] more than 40 states have statutes, regulations, or administrative rules in place that restrict the ability of law enforcement agencies to employ non-citizens.”

There are other adverse effects. Because the category of noncitizen national is often not part of the lexicon of bureaucrats, nor part of the architecture around bureaucratic processes, those who are American Samoans find themselves in perilous legal situations through no fault of their own with some regularity. For instance, the National Voter Registration Act mandates that “most states ... provide citizens with an opportunity to register to vote when applying for or renewing a driver's license at a department of motor vehicles (DMV) or other designated state agencies.” In “January 2021, 20 states and the District of Columbia ... [implemented] automatic voter registration” (AVR). Three of these AVR states--Alaska, California, and Washington--have among the largest percentage of American Samoans in the United States.

The difficulty arises because American Samoans, as discussed above, are ineligible to vote for state or federal officials. Yet when an individual is automatically registered to do so as part of obtaining a driver's license in one of these AVR states, that person may be viewed as having committed a crime, and the ramifications can be significant.

For starters, noncitizens seeking to naturalize, including American Samoans, must complete a form known as the N-400, which states that “good moral character” is a requirement for whether or not citizenship will be granted. This phrase is defined within the INA, and given the history, it is not difficult to see the government arguing that someone who has unlawfully registered to vote fails to possess this trait. When this happens to noncitizens who are also not U.S. nationals, a frequent outcome is that the individual is denied citizenship and thereafter deported. American Samoans, however, cannot be deported. Rather, their application for naturalization may be significantly delayed or denied, which can lead to exclusion from certain sectors of the labor market, continued political isolation, and social marginalization from communities which they are seeking to be a part of.

Looking at the BIA's immigration approach to past American Samoan concerns offers a distinct insight. The BIA's previous cases have involved claims for more equitable treatment in receiving different government benefits. As demonstrated, the BIA has done what it could to show its sympathy and support. Yet because it cannot directly bestow citizenship, a range of other entitlements remains beyond the reach of American Samoans.

For example, U.S. citizens generally “can travel with one of the most powerful passports in the world, ... [including going] to more than 180 countries for short-term trips without a visa.” For American Samoans, while they can apply for this same privilege, whether they receive it is determined on a case-by-case basis by the hosting country. In addition, certain federal financial assistance opportunities for college and other educational purposes are only open to citizens. Also, “U.S. citizens generally get priority when petitioning to bring family members permanently to this country.” Many more important privileges of citizenship exist as well.

Thus, if the Supreme Court decides to weigh in on birthright citizenship for American Samoans, it may wish to reflect on how the agency charged with immigration adjudication has handled previous relevant cases as well. Recall that as it was originally conceived, Chevron was premised on the idea that bureaucracies are staffed with experts tasked with making both efficient and just decisions. While many have seen the BIA's actions as generally antithetical to this notion, the story has been curiously different with respect to American Samoans.

Why? The answer, for now, can only be speculative. But perhaps it was because politics did not infect the adjudication of cases to the extent we see today. In fact, imagine a scenario where outside interference was minimized, and the BIA had the opportunity to deliberate on the citizenship question. With its past support for claims made by American Samoans, the BIA might well find in favor of recognizing this right. If it did, its decision likely would be based less on 'high constitutional’ theory and more on how the category of noncitizen national is both impractical and anomalous, given that federal and state laws generally do not account for this status. In other words, were it to stay true to its past rulings, the BIA would see continuing such inequity as running counter to its own precedent, and it would likely take issue with the government's actions, especially since they would be directed at a community that has been disadvantaged for so long.

Milt and Judi Stewart Professor of Law and Director of the Stewart Center of the Global Legal Profession, Indiana University-Bloomington Maurer School of Law.

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