Immigration Article of the Day: The “Impractical and Anomalous” Consequences of Territorial Inequity  by Jayanth K. Krishnan

The “Impractical and Anomalous” Consequences of Territorial Inequity  by Jayanth K. Krishnan, 36 Georgetown Immigration Law Journal (2022, Forthcoming)

Abstract

Located in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens upon birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts – the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021) – have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. In fact, both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.

Drawing upon a powerful dissent in the Tenth Circuit case, this study argues that what is actually impractical and anomalous is excluding American Samoans from this constitutional entitlement. But there is also a crucial administrative basis for supporting this claim, which to-date has received scant attention. For three decades, beginning in 1947, the Board of Immigration Appeals (BIA) – the expert adjudicative agency for immigration matters – delivered a series of precedent-setting judgments that gradually expanded the rights of American Samoans. These decisions were issued namely as a way of curing what otherwise would have been impractical, anomalous, and unjust actions taken by the government. This finding is surprising because the BIA has generally been viewed as hostile to noncitizens overall.

One theory for why the BIA sided with these “discrete and insular” claimants is that the agency’s expertise was not as vulnerable to external pressure then as it is today. Assuming that these cases were decided more squarely on the merits, this study suggests that it may well be worthwhile for the federal courts to consider what might be gleaned from these past judgments when reflecting on whether American Samoans are indeed birthright citizens.

KJ