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Intervenors in citizenship case oppose court’s full panel review

Congresswoman Uifaatali Amata and Gov. Lemanu
Plaintiffs’ are trying to “re-litigate the issue” intervenors claim

Pago Pago, AMERICAN SAMOA — The American Samoa Government and Congresswoman Uifa’atali Amata have filed their opposition to a petition by three American Samoans who are plaintiffs in the Fitsemanu v. USA citizenship federal case, 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 three-judge “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,” argued ASG and Uifa’atali, who are intervenors in the case.

“That conclusion is consistent with more than a century of consistent historical practice, and it does not warrant further judicial review,” the intervenors pointed out through a response filed late last week.

“In the aftermath of the panel decision, the Legislature of American Samoa passed a concurrent resolution expressing unanimous support for the panel decision,” the intervenors’ claim and included the resolution, passed by the Fono last month in their filing as an exhibit.

The intervenors — through their legal team — argued that this case arises out of plaintiffs’ efforts to “re-litigate the issue” of whether the federal courts should mandate U.S. citizenship for persons born in American Samoa, even though a similar group of U.S. nationals from American Samoa and another nonprofit organization previously litigated—and lost—a substantively identical case in the D.C. Circuit — referring to the Tuaua v. United States appeal case in 2015).

And plaintiffs in the Fitisemanu case are represented by some of the same legal counsel who represented the Tuaua plaintiffs — filing suit in the Utah federal case, less than two years after the U.S Supreme Court “denied certiorari” in the Tuaua case, and they asked the Utah federal court for the same relief that the plaintiffs had already sought — and failed to achieve — in the Tuaua case.

“The only material difference between this [Fitisemanu] case and Tuaua [case] is that the views of the American Samoan people are stronger and clearer in this Court,” said the intervenors, who pointed to the Fono concurrent resolution expressing its support of the panel’s decision on behalf of the Legislature and the people of American Samoa.

“This resolution passed unanimously, without a single dissenting vote in either house of the American Samoa Legislature,” it says.

Intervenors pointed out that the panel’s majority opinion determined that “neither constitutional text nor Supreme Court precedent demands the district court’s interpretation of the Citizenship Clause of the Fourteenth Amendment.”

“Because the geographic scope of the Citizenship Clause is ambiguous, it does not apply to American Samoa, an unincorporated territory, “by its own terms”, the intervenors argued.

They further argued that the panel decision is fully consistent with Supreme Court precedent and with more than a century of consistent historical practice.

And that the decision correctly leaves to Congress and the political process a singular question of “exceptional importance to American Samoa and American Samoan people.

“The political process is able and best situated to account for the varying interests at issue when considering whether to extend birthright citizenship on all American Samoans,” it says.

The intervenors cited a provision of the concurrent resolution, “invites those representing special interests supporting the lawyers in the Fitisemanu case to visit American Samoa to meet with our elected and traditional leaders, visit with the people in our villages, and if convinced the people want U.S. citizenship to be conferred by the U.S. Congress, work within the existing governmental processes to hold a referendum on the subject.”

The federal defendants, the US State Department and several officials, also filed a response on plaintiffs rehearing of the case by the full panel. Samoa News will report in a future edition on their response.

 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.)