The 'impractical and anomalous' consequences of territorial inequity

• Author: Jayanth K. Krishnan
• Position: Milt and Judi Stewart Professor of Law and Director of the Stewart Center of the Global Legal Profession, Indiana University-Bloomington Maurer School of Law
• Pages: 621-650

THE ‘IMPRACTICAL AND ANOMALOUS’

CONSEQUENCES OF TERRITORIAL INEQUITY

JAYANTH K. KRISHNAN*

ABSTRACT

Located in the South Pacific Ocean, American Samoa is one of five popu-

lated “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 classi-

fication 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 espe-

cially 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” claim-

ants 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.

* Milt and Judi Stewart Professor of Law and Director of the Stewart Center of the Global Legal

Profession, Indiana University-Bloomington Maurer School of Law. The project would not have been

possible without the insights and advice from Fred Aman, Vitor Dias, Luis Fuentes-Rohwer, Ethan

Michelson, Christiana Ochoa, Margaret Stock, Neil Weare, and Tung Yin. Finally, great thanks to

Melanie Chamberlain, Lara Gose, Margaret Kiel-Morse, and Daniel Schumick who provided important

research assistance and editing feedback. © 2022, Jayanth K. Krishnan.

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TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622

II. THE RECENT LITIGATION OVER AMERICAN SAMOAN BIRTHRIGHT

CITIZENSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 628

A. Fitisemanu ................................... 628

B. The Tenth Circuit Dissent and the Influence of a District

Court Judge .................................. 631

III. IMMIGRATION ADJUDICATION AND THE THEORY OF EXPERTISE . . . . . . 635

A. Background .................................. 635

B. Agency Specialists and Deference . . . . . . . . . . . . . . . . . . 637

IV. THE BIA AND AMERICAN SAMOANS—1947–1975 . . . . . . . . . . . . . 640

A. The Pre-INA Cases ............................. 640

B. The Post-INA Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 643

V. CONCLUSION: THE IMPLICATIONS OF TERRITORIAL INEQUITY . . . . . . . 646

I. INTRODUCTION

The year 2022 will mark a century since the Supreme Court issued its deci-

sion in Balzac v. Porto (Puerto) Rico.

1

In short, Balzac dealt with whether

Puerto Ricans, who had been recognized as U.S. citizens by the Jones Act of

1917, could claim a constitutional right to a jury trial under the Sixth

Amendment.

2

Chief Justice Taft, writing for a unanimous Court, answered

that question in the negative.

3

In his opinion, because “Congress did not have

such an intention”

4

to incorporate Puerto Rico into the Union, the island’s

residents could not assume that they necessarily possessed this constitutional

right.

5

For years, researchers have devoted time to examining Balzac.

6

Interestingly, there is one part of the Court’s decision that has provided some

1. See Balzac v. Puerto Rico, 258 U.S. 298 (1922) (alteration in original). Note the official title of the

case spells the territory as Porto Rico, which, in 1922, was how the island was titled by the Court.

2. Id.

3. Id.

4. Id. at 306.

5. Id. (noting that if Congress wanted to extend this type of right to the residents, it would have to

affirmatively do so through legislation).

6. See, e.g., Luis E. Fuentes-Rohwer, Bringing Democracy to Puerto Rico: A Rejoinder, 11 HARV.

LATINO L. REV. 157, 168 (2008); Christina D. Ponsa-Kraus, Political Wine in a Judicial Bottle: Justice

622 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:621