Thursday, October 25, 2012

The Naturalization Clause in the U.S. Territories: The Insular Cases Revisited

Last month, the U.S. Court of Appeals for the Ninth Ciruit upheld the denial of naturalization applications filed by two lawful permanent residents (LPRs) who had been residing in the Commonwealth of the Northern Mariana Islands (CNMI) for several years. The LPRs submitted their application for citizenship contending that because they had lived in the CNMI, a U.S. territory, for well over the five-year continuous residency requirement established under 8 U.S.C. 1427, then they were eligible to apply for naturalization.  

The Ninth Circuit disagreed, holding in Eche v. Holder that the two applicants failed to satisfy the five-year continuous residency requirement. The court acknowledged that one of the applicants had been residing in the CNMI as an LPR since 2000 and the other since 2005.  However, according to the court, their presence in the CNMI did not constitute as being present in the United States. That is because it was not until 2009 that the Immigration and Nationality Act became effective in the CNMI. (Congress passed the Consolidated Natural Resources Act of 2008, which extended the INA to the CNMI; prior to that, the CNMI regulated its own immigration laws since 1976, when it became a U.S. territory).   

The court relied on the plain language of the CNRA, which stated that presence in the CNMI prior to the CNRA would not constitute "presence in the United States" (except for a specific exception not at issue in the case), to hold that the lawful pre-transition presence in the CNMI did not count towards the five-year requirements for naturalization. (In other words, the appellants would need to reside in the CNMI for at leat five-years after 2009 in order to be eligible to apply for citizenship).

The parties argued that the CNRA created different naturalization rules for the CNMI, which violates the Naturalization Clause, which requires Congress to "establish a uniform rule of naturalization." The Ninth Circuit also rejected this argument. Notably, the court held that under the Naturalization Clause does not apply on its own force in an unincorporated territory like the CNMI. In particular, the court relied on the Insular Cases such as Downes v. Bidwell, 182 U.S. 244 (1901), to hold that the Naturalization Clause did not follow the flag when the CNMI became a U.S. territory.


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