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Federal defendants argue precedent in citizenship appeal

u.s.10th federal court of appeals, Denver Colorado
Plaintiffs say that leaves Am Samoans as “citizens of nowhere”

Pago Pago, AMERICAN SAMOA — The U.S State Department and its top officials who are federal defendants in the Fitisemanu v. USA citizenship case have filed their opposition to a petition by three American Samoans who are the plaintiffs — for a “rehearing en banc” or the full-panel of the U.S. Tenth Circuit Court of Appeals to review the decision made in June of this year by the three-judge panel of the same appeals court, where the majority ruled that citizenship birth on U.S. soil is not applicable to those born in American Samoa.

“The petition for rehearing should be denied. The panel decision correctly aligns this Court with the Supreme Court, every other circuit to consider the question, and over 100 years of unbroken practice in concluding that the Citizenship Clause of the Fourteenth Amendment does not apply to persons born in unincorporated territories,” the federal defendants argued in their filing.

Furthermore, plaintiffs’ “attempts to manufacture a conflict with Supreme Court precedent—or with this Court’s precedent emphasizing the importance of Supreme Court dicta—simply disregard the Supreme Court’s explicit instruction that Congress has the power” exercised under federal law, “to prescribe upon what terms the United States will receive [a territory’s] inhabitants, and what their status shall be.”

The plaintiffs-appellees, through their legal team, petition for “rehearing en banc” arguing among other things, that whatever the views of elected officials in the Territory, the majority’s decision by the Tenth Circuit means that Plaintiffs-Appellees are no long recognized as citizens of the United States—or of any other sovereign nation.

“Citizenship is a ‘fundamental right’,” they point out. “But as a result of the panel decision, Plaintiffs-Appellees are not citizens of the United States; they are citizens of nowhere.” (See Samoa News edition Aug. 2nd for details.)

The 10th Circuit majority, in it’s June ruling, reversed a lower court’s decision, that “Persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment.”

However, a dissenting judge — one of the three-judge panel who heard the case — agrees with lower court, saying the plaintiffs, who were all born in American Samoa and currently living in Utah, are US citizens because they were born in American Samoa.

In their opposition filing, the federal defendants explained that the Citizenship Clause provides that “[a]ll  persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

And that individuals who do not fall within the scope of this provision can “acquire citizenship by birth only as provided by Acts of Congress.”

For United States territories, the federal defense team argued that the US Congress has decided on a territory-by-territory basis whether and under what circumstances persons born in the territory — or already living in the territory at the time of acquisition — become U.S. citizens or nationals.

Thus, Congress has enacted provisions addressing birthright citizenship for individuals born in Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands.

For American Samoa, an unincorporated territory of the U.S — federal law provides that person born there are noncitizen nationals of the United States.

“Congress has never enacted a birthright citizenship statute for American Samoa,” they argued and recalled the appeal’s court majority ruled that “Congress has always wielded plenary authority over the citizenship status of unincorporated territories, a practice that itself harked back to territorial administration in the nineteenth century.”

And this “evidence of an unbroken understanding of the meaning of the text, confirmed by longstanding practice, is persuasive,” the defense further argued.

They cited, 10th Circuit, Chief Judge Timothy M. Tymkovich’s view, that the “historical practice, undisturbed for over a century, that Congress has the authority to determine the citizenship status of unincorporated territorial inhabitants” was sufficient to resolve the case.

Defendants further argued, that imposing birthright citizenship on American Samoa over the objections of its democratically-elected leaders would ignore the very considerations that have led to the “repurpos[ing]” of the territorial-incorporation doctrine, including respecting the differing legal cultures of the United States’ diverse unincorporated territories, including respecting the differing legal cultures of the United States’ diverse unincorporated territories.

The American Samoa Government and Congresswoman Uifa’atali Amata are intervenors in this case, starting from when it was filed by the plaintiffs at the federal court at Salt Lake City, Utah.

And the intervenors have also filed their opposition to the rehearing petition, saying that the “panel decision correctly determines that, as it has been for every other U.S. territory, the question whether to extend U.S. citizenship to the people of American Samoa is a question for Congress, not the courts.”

The intervenors also submitted the Fono approved concurrent resolution expressing support of the panel’s decision on behalf of the Legislature and the people of American Samoa. (See Samoa News online Sept. 22nd for details of intervenors opposition.)