When Is a Birthright Citizenship Issue Not an Immigration Issue?

When it relates to U.S. nationals in American Samoa

By David North on December 13, 2019

Typically when my colleagues and I write about birthright citizenship it relates to immigration — every baby born to an alien in the United States (unless the parent is a foreign diplomat) is an instant citizen, and often, if the parents are tourists, it is a migrant (or potential migrant years later) in disguise.

Well, a federal judge in Utah has just decided a birth citizenship issue that will have no impact on international migration, whether his decision is overturned on appeal or not.

This relates to the odd status of people born in American Samoa. At birth they are U.S. nationals, not citizens. They can migrate to the mainland without difficulty, and can become citizens through the naturalization process. But unless they do so they cannot vote and cannot get some kinds of mainland jobs, such as with a police force.

The different rules for Samoans also extend to immigration control. American Samoa, alone among U.S. territories, runs its own migration policies. Someone, say, from the nearby independent nation of Samoa (formerly ruled by New Zealand as Western Samoa), can migrate to American Samoa, but would have no rights to settle in the rest of the United States.

U.S. district court judge Clark Waddoups has ruled that three U.S. nationals living in Utah are birthright citizens, saying, according to a partially pay-blocked Law360 article, that the Constitution makes them citizens, not nationals.

Since nationals can move freely to and from the mainland — with many of them living in Hawaii, California, and Utah (one-quarter of American Samoa's population is Mormon) — the judge's decision will not change any migration rules and is not likely to increase international migration to the States.

His decision may not be upheld on appeal. The D.C. Circuit Court of Appeals ruled in 2015 that the national/citizens distinction was an appropriate one, and since the Supreme Court decided not to hear an appeal from that ruling, it is the law. If the Utah decision is upheld at the circuit court level, that would indicate a split among the circuits, and the possibility of another Supreme Court ruling on the issue.