Friday, February 27, 2015

Update on American Samoa Birthright Citizenship Case: Tuaua v. United States

We have previously blogged (here and here) about Tuaua v. United States, the case involving American Samoan individuals who claim that they acquired U.S. citizenship at birth by virtue of being born in American Samoa, a U.S. territory.  In particular, they argue that the plain meaning/ text of the Fourteenth Amendment, congressional intent and case law, particularly United States v. Wong Kim Ark, support their constitutional claim.

Relying primarily on the Insular Cases, Judge Richard Leon of district court for the District of Columbia rejected their claim. In particular, the Insular Cases created a distinction between incorporated territories (territories destined for statehood) and unincorporated territories and provided that only "fundamental" constitutional rights apply in unincorporated territories.  In Tuaua v. United States, 951 F. Supp. 2d 88, 95-97 (D.D.C. June 26, 2013), the court explained that citizenship is not a "fundamental" right in the unincorporated territory of American Samoa.

The case is now before the D.C. Circuit and was argued on February 9, 2015. Here's the link  to the oral argument. 

(Disclosure: I was one of the citizenship law scholars who filed an amicus brief and was represented by Gibson Dunn.  I am also writing a law review article about non-citizen nationals, the abstract of which is available here).

Those interested in birthright citizenship law would find the oral arguments fascinating. Cases mentioned (in addition to the Insular Cases) were United States v. Wong Kim Ark and Elk v. Wilkins.  For me, at least three points/questions stood out:

1) In a conflict between the Citizenship Clause and Congress's power over the territories, which one prevails?

2) The role that cases involving Filipinos' (failed) claims to birthright citizenship are playing in this case. (See, e.g., Nolos v. Holder, 611 F.3d 279 (5th Cir. 2010); Lacap v. INS, 138 F.3d 518 (3d Cir. 1998); Valmonte v. INS, 136 F3d 914 (2d Cir 1998). Indeed, the first question asked by the panel was “What about all those cases in the Philippines [in] various circuits”? Counsel for Tuaua sought to distinguish those cases by contending that the cases were "brought decades years after the Philippines were no longer part of the United States," to which the court noted that the question is "whether at the time of birth, person was entitled to birthright citizenship."

3) Whether citizenship may be rejected. That is, here,  the American Samoan government is opposed to citizenship and prefers national status for its people. By contrast, individual American Samoans desire U.S. citizenship.

I will post more about the above next week. 


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