I was warned.
About the darkness.
My client’s first master calendar was scheduled for early November. As I walked from my hotel room to the immigration court, it was not only cold, but also pitch black.
It seemed like 9:00 p.m.
It was only 9:00 a.m.
Later that morning, as I sat in the Anchorage immigration court waiting for our case to be called, I noticed about two-thirds of the matters involved Samoans.
In each case the judge inquired about the specific area of their birth. “Samoa or America Samoa?”
Each time the question was asked, the darkness – a legal darkness – seemed to engulf the room.
I was warned.
A Brief Overview: A Tale Of Two Samoas
The Samoan Islands, an archipelago in the South Pacific, have long been part of two countries.
The western islands belong to Samoa, an independent nation. The eastern islands, now known as American Samoa, were granted to the United States under an 1899 treaty with Germany and Great Britain.
From the beginning, the United States allowed American Samoan residents to govern themselves.
Since that time, American Samoans have served in the U.S. military, including the recent wars in Iraq and Afghanistan.
They can receive U.S. passports and live in the mainland United States. But they are not allowed to vote in elections or work in jobs requiring U.S. citizenship. In addition, their birth status excludes them from qualifying for federal work-study programs in college or firearm permits.
Moreover, even though the United States has granted birthright citizenship to other similarly run territories – Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands – the U.S. has isolated American Samoans in a second-class “national” status.
Now, a potentially landmark citizenship appeal challenges this distinction.
American Samoans Debate U.S. Citizenship
To be sure, there exists a split of opinion among American Samoans on the issue of automatic U.S. citizenship.
Whereas the majority favor citizenship, it is not a full 100% consensus.
As often happens in these types of political battles, outspoken traditionalists have voiced fears about the impact upon their unique customs and laws if they become subjected to doing things under U.S. law.
In particular, these opponents worry about the potential loss of their local land ownership system.
More than 90 percent of land on the territory is owned communally. Most of the rest is owned by ethnic Samoans under laws that limit most property ownership to people with “native blood.”
Some local officials and citizenship opponents assert if the lawsuit for U.S. citizenship succeeds, the land tenure system and other American Samoan laws could be challenged in court as not being in sync with U.S. property law concepts.
Political And Legal Obstacles To Citizenship
In a recent CNN editorial, legal analyst Danny Cevallos asked, “Should American Samoans be citizens?”
He concluded it feels “fundamentally unfair” that American Samoans get short shrift when it comes to citizenship, but added they would not prevail on their legal appeal.
He’s right on the first point. He misses the mark on the second.
To be frank, despite serving over twenty years as an immigration lawyer in San Diego, I’ll admit that I did not realize the citizenship claim of American Samoans was such a heated issue until I took on my first deportation defense case in Alaska.
After traveling back and forth to Alaska, I have gained a lot of insights about the claims of American Samoans to U.S. citizenship.
I talked to local Samoan residents. I watched televised debates. I read various editorials in regional newspapers. And I studied the legal issues.
As a citizenship and naturalization lawyer, I’ve reached my conclusion.
I support the rights of American Samoans to U.S. citizenship.
I also believe, over time, their claims will be legally and politically recognized.
Currently, there are approximately 68,000 American Samoans. As residents of a U.S. territory, they are classified as non-citizen U.S. nationals.
This means they must file for naturalization as lawful permanent residents, unless they can claim citizenship via birth to a U.S. citizen parent.
Their situation is dissimilar to that of other former U.S. territories – Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands – each of which have been granted full U.S. citizenship rights.
The differentiation is an irrational political anomaly.
In my view, after a close political and diplomatic relationship with American Samoa over the past 100 years, it seems time for the United States to end the distinction.
I agree with Attorney Charles Ala’ilima, an American Samoan, who is leading the legal challenge to the incongruent treatment between the other former territories and American Samoa.
In short, the failure of the U.S. government to grant citizenship for American Samoans cannot be politically justified.
Most of the reasons for granting birthright citizenship to other territories also weigh in favor of citizenship for American Samoans.
Two Paths To U.S. Citizenship For American Samoans
There are at least two ways for this change to happen.
First, the legal path.
Ala’ilima’s appeal rests upon the Citizenship Clause of the 14th Amendment to the Constitution. That clause states “all persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Critics have generally asserted that whether the 14th Amendment Citizenship Clause applies to American Samoa is unclear. They’re right.
But as Ala’ilima has specifically argued, the text and original understanding of the citizenship clause, as well as the history of the 14th Amendment’s history regarding U.S. territories, weighs in favor of birthright citizenship for American Samoans.
Second, a political path for change also exists.
Congress could, in light of previous decisions to grant birth right citizenship to former residents of U.S. territories, do the same here and modify the status of American Samoans from mere U.S. nationals to U.S. citizens.
Ultimately, if the constitutional challenge fails, I believe the U.S. will acknowledge that following its own political precedent, and supporting automatic citizenship for American Samoans, is the proper course to embrace.
At that point, when an immigration judge inquires about a Samoan’s place of birth, the answer will have a far greater legal significance than at present.
For those born in American Samoa, the darkness of an indefinite immigration status will have been lifted.
Supreme Court Update
On June 13, 2016, the Supreme Court declined to reconsider the ruling from the U.S. Court of Appeals for the District of Columbia. The D.C. Circuit had previously held American Samoans have no automatic claim to U.S. citizenship by birth. The decision keeps the D.C. Circuit’s ruling intact.
Part of the D.C. Circuit’s ruling was based on a set of cases known as the Insular Cases, cases which noted that residents living in territories not destined for statehood were only entitled to a limited scope of “fundamental rights,” not including American citizenship.
Critics of the Insular Cases note that the decisions reflected an outdated, racist approach to constitutional law – pointing to the language used by the Justices that the “development of the American empire” would be set back by the “annexation of distant possessions . . . inhabited by alien races.”
The Court’s ruling does not preclude the possibility of political resolution.
For now, American Samoa will remain the only U.S. territory where the residents are not eligible to vote in U.S. elections, run for public office, or serve as officers in the U.S. military.
It sure seems an un-American way to treat loyal allies.
By Carlos Batara, Immigration Law, Policy, And Politics