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36 Georgetown Immigration Law Journal 621 (2022)


Located in the South Pacific Ocean, American Samoa is one of five populated “unincorporated territories” of the United States. It is unique, though, as those born there are not recognized as American citizens at birth and instead are deemed “noncitizen U.S. nationals.” They enjoy some, but not all, constitutional protections. Two federal appellate courts—the D.C. Circuit (in 2015) and the Tenth Circuit (in 2021)—have ruled that this classification does not violate the Fourteenth Amendment’s Citizenship Clause. Both courts have stated that it would be “impractical” and “anomalous” to extend birthright citizenship to the American Samoan community.

Drawing upon a powerful dissent in the Tenth Circuit case, this Article argues that what is actually “impractical” and “anomalous” is excluding American Samoans from this constitutional entitlement. However, there is also a crucial administrative basis for supporting this claim, which to date has received scant attention. For three decades, beginning in 1947, the Board of Immigration Appeals (BIA)—the top court in the immigration court system—delivered a series of precedent-setting judgments that gradually expanded the rights of American Samoans. These decisions were issued namely as a way of curing what otherwise would have been impractical, anomalous, and unjust actions taken by the government. This finding is especially noteworthy given that the BIA has generally been viewed as hostile to noncitizens.

One theory for why the BIA sided with these “discrete and insular” claimants is that the agency’s expertise was not as vulnerable to external pressure then as it is today. Assuming that these cases were decided more squarely on the merits, this Article suggests that it may be worthwhile for the federal courts to consider them when reflecting on whether American Samoans are indeed birthright citizens.