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United States Citizenship, Part 1: More Complicated than It Appears

Samoa_Cram_Map_1896.jpgThe Fourteenth Amendment to the U.S. Constitution defines a “citizen” as anyone “born or naturalized in the United States.” The U.S. did not have a single, uniform system for naturalization until the Immigration and Nationality Act (INA) of 1952, which forms the backbone of today’s federal immigration laws. The “born in the United States” part of the Citizenship Clause, however, is more complicated than it might appear with regard to certain U.S. territories.

While the U.S. never had a colonial empire like Spain or the United Kingdom, it continues to hold several territories acquired in the 19th and 20th centuries. About four million people live in five “unincorporated territories” of the United States. The U.S. took control of Puerto Rico and Guam from Spain after the Spanish-American War in 1898, acquired American Samoa through an 1899 treaty with Germany, purchased the U.S. Virgin Islands from Denmark in 1917, and took over the Northern Mariana Islands from Japan after World War II in 1945. Each territory elects a non-voting delegate to the U.S. House of Representatives but has no representation in the Senate and no electoral votes in presidential elections.

These territories are classified as “unincorporated organized territories” (UOTs), except for American Samoa, which is an “unincorporated unorganized territory” (UUT). They are also known as “insular areas,” which are not part of a U.S. state or federal district. The term “unincorporated” means that the U.S. Supreme Court has held that the Constitution does not fully apply in those territories. The term “organized” means that Congress has enacted a body of laws to govern the territory—albeit with no electoral input from the territory’s residents. See, e.g. 48 U.S.C. Sec. 731 et seq. (Puerto Rico). American Samoa has no organic act. See 48 U.S.C. Sec. 1661 et seq.

People born in UOTs are considered American citizens. See, e.g., 8 U.S.C. §§ 1402-1407. American Samoa is considered an “outlying possession of the United States,” meaning that people born there are considered U.S. nationals, not citizens. 8 U.S.C. §§ 1101(a)(29), 1408(1). A “national” is someone who “ow[es] permanent allegiance to a state.” 8 U.S.C. §§ 1101(a)(21), (22)(B). U.S. nationals have about the same amount of rights as immigrants who have obtained lawful permanent resident status, such as the right to employment and to move freely into, out of, and through the country. Naturalized U.S. citizens, who usually applied for naturalization after obtaining a green card, therefore have more rights than this particular group of people born on what is, at least nominally, U.S. soil.

A series of Supreme Court decisions, known as the “Insular Cases,” most of which were issued in 1901, addressed the extent to which the Constitution applies to unincorporated territories. In Downes v. Bidwell, 182 U.S. 244 (1901), for example, the court held that administrative and revenue provisions of the Constitution do not necessarily apply in U.S. territories, but it also noted that individual liberties might still be protected. Later cases have expanded on individual constitutional rights, such as the decision that the Fourth Amendment applies in Puerto Rico in Torres v. Puerto Rico, 442 U.S. 465 (1979). A currently pending federal appeal seeks to address the question of citizenship in UUTs.

Immigration law attorney Samuel C. Berger represents immigrants living in the New York City and Northern New Jersey areas and individuals seeking to immigrate to the United States, helping them obtain visas and green cards. To schedule a confidential consultation with an experienced and skilled immigration advocate, contact us today online or at (212) 380-8117.

More Blog Posts:

After More than Two Decades in New York City, Man Finally Becomes Naturalized U.S. Citizen, New York & New Jersey Immigration Lawyer Blog, November 26, 2014
State Department Substantially Increases Fee for Renunciation of U.S. Citizenship, New York & New Jersey Immigration Lawyer Blog, September 17, 2014
Government Grants Naturalization Petition After Initially Denying It Based on Conscientious Objector Status, New York & New Jersey Immigration Lawyer Blog, May 28, 2014
Photo credit: Map of Samoa by George Cram – 1996 Chromograph Photographed by and from the collection of —CloudSurfer 02:09, 26 Sep 2004 (UTC) [GFDL or CC BY-SA 3.0], via Wikimedia Commons.