204, 54 Stat. 1137, 1137, 1139-40
(1940); 7 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr,
Immigration Law and Procedure § 91.01[b], at 91-5 (rev. ed.
2001). This definition of "national of the United States" was
incorporated into the INA. 8 U.S.C. § 1101(a)(22).
Today, the number of inhabitants of U.S. territories has dwindled. The
numerous inhabitants of Puerto Rico and Guam gained U.S. citizenship in
1940 and 1950, respectively. Rabang, 35 F.3d at 1450 n. 1. The
Philippines gained independence in 1946. Olegario v. United States,
629 F.2d 204, 214 n. 7 (2d Cir. 1980). The only remaining"outlying
possessions" of the United States are American Samoa and Swains Island.
8 U.S.C. § 1101(a)(29). Based on the historical origins of the term
"national," the Government argues that "national" status should be
confined to the relatively few residents of these territories.
Consequently, the Government argues, Shittu is an alien subject to
While 8 U.S.C. § 1408(a) expressly provides that persons born in
these outlying possessions are U.S. nationals, the circuits are split on
whether "national" status is limited to such person; certainly §
1101(a)(22) permits a broader interpretation. Courts agree that lengthy
residency alone does not suffice to confer the status of "national."
See, e.g., Sierra-Reyes v. INS, 585 F.2d 762, 764 (5th Cir. 1978)
(rejecting as "frivolous" 20-year permanent U.S. resident's claim of
"national" status where he had never filed a petition for
naturalization); Carreon-Hernandez v. Levi, 543 F.2d 637 (8th Cir. 1976)
(rejecting "national" status of 20-year U.S. permanent resident convicted
of heroin distribution, who had registered for Selective Service but
never applied for U.S. citizenship); Oliver v. United States Dep't of
Justice, INS, 517 F.2d 426, 427-28 (2d Cir. 1975) (rejecting "national"
status of 25-year permanent U.S. resident convicted of heroin possession
who had not applied for naturalization).
Recently, however, at least two Courts of Appeals have held that an
application for citizenship constitutes objective evidence of permanent
allegiance in satisfaction of the definition of "national" in §
1101(a)(22). See Hughes v. Ashcroft, 255 F.3d 752, 757 (9th Cir. 2001)
(rejecting petitioner's claim of "national" status because he could not
demonstrate minimal requirements of either birth in U.S. territory or
application for U.S. citizenship); United States v. Morin, 80 F.3d 124,
126 (4th Cir. 1996) (finding that native Mexican who had applied for
U.S. citizenship was "national" under 8 U.S.C. § 1101(a)(22) for
purposes of 18 U.S.C. § 2332).
I am not persuaded by the Government's argument that Morin is
irrelevant to Shittu's petition because it was not a removal case. In
Morin, the Court of Appeals for the Fourth Circuit held that a permanent
resident who had applied for U.S. citizenship was a U.S. "national" for
purposes of a federal statute that criminalized the murder of any
"national of the United States." Morin, 80 F.3d at 126 (citing
18 U.S.C. § 2332). The Fourth Circuit found that the permanent
resident's application for citizenship was the "most compelling evidence
of permanent allegiance to the United States short of citizenship
itself." Id. at 126. In enacting 18 U.S.C. § 2332(a) and
incorporating the definition of "national of United States" contained in
the INA, see 18 U.S.C. § 2331(2), Congress presumably intended that
the identical language should mean the same thing in both statutes.
Neither the Supreme Court nor the Court of Appeals for the Third
Circuit has decided this issue, although the Supreme Court in dicta has
implicitly accepted the traditional view that "nationals" are non-citizen
residents of U.S. territories. See Miller v. Albright, 533 U.S. 420,
[523 U.S. 420], 467 n. 2 (1998) (noting in dicta that distinction
between "citizen" and "national" "has little practical impact today,"
because "the only remaining noncitizen nationals are residents of
American Samoa and Swains Island"). Cf. Hampton v. Mow Sun Wong,
426 U.S. 88, 90 n. 1 (1976) (noting that Civil Service Commission
construes "national" to cover only natives of American Samoa).
I conclude, as other courts before me have concluded, that long-term
residency alone does not suffice to confer the status of "national."
There must be some objective demonstration of permanent allegiance. An
application for naturalization is one such objective demonstration.
Indeed, an applicant for naturalization is required to sign an
acknowledgment of his or her willingness and ability to take an oath of
allegiance to the United States. Application for Naturalization, INS Form
N-400 (Rev. 05/31/01), at 10. Registration for the Selective Service or
service in USA Freedom Corps might be another such objective
demonstration. Cf. Carrion-Hernandez, 543 F.2d at 637 (rejecting
petitioner's claim of "national" status although he had registered for
Selective Service). A long-time permanent resident living an exemplary
life, who has confirmed his or her permanent allegiance to the United
States and its ideals by applying for naturalization, might be considered
a "national of the United States." This interpretation of §
1101(a)(22) runs parallel to Congress's specific provision for the
naturalization of lawful permanent residents who have actively served in
the U.S. Armed Forces. 8 U.S.C. § 1440(a).
The immigration courts should ordinarily consider all such objective
indicia of permanent allegiance in determining whether a permanent
resident who has applied for naturalization is a U.S. "national."
Nevertheless, the existence of a single objective demonstration of
permanent allegiance, such as an application for naturalization, is not
conclusive if it is contradicted by other evidence showing the
applicant's lack of such allegiance. In Shittu's case, while his
application was still under consideration by the INS, he was convicted of
an aggravated felony. Shittu's felony conviction objectively demonstrated
his lack of allegiance to the United States and its laws and negated any
possible inference of permanent allegiance from his naturalization
application. Therefore, it was not necessary in Shittu's case for the
Immigration Judge to consider other objective evidence of his
allegiance. Shittu's aggravated felony conviction was sufficient by
itself to refute any other evidence of his permanent allegiance to this
country. The conviction demonstrated that his professed allegiance was no
more than a convenient cover for illegal activity. To confer "national"
status on one who disdains U.S. laws would be an affront to the many
law-abiding immigrants to this country who apply for citizenship in good
The Government has also pointed out that Shittu's application for
naturalization would have been futile; one of the requirements for
naturalization is "good moral character," 8 U.S.C. § 1427(a), and a
person who has been convicted of an aggravated felony cannot be found to
have "good moral character," 8 U.S.C. § 1101(f)(8). The Government
argues that an aggravated felon such as Shittu should not be able to
avoid deportation temporarily by claiming "national" status based on his
pending naturalization application, since it is certain to be rejected
While the Government is correct that Shittu's application became futile
after his felony conviction, the Government's futility
argument has far
too limited an application to affect the proper interpretation of §
1101(a)(22). The narrow interpretation of "national" that the Government
favors would affect many more immigrants than convicted felons. It may
not be true that the naturalization applications of all permanent
residents facing deportation would be futile. Moreover, the example of
Morin shows that the interpretation of the term "national" affects the
application of laws unrelated to immigration. In any case, since I have
denied Shittu relief based on his inability to demonstrate permanent
allegiance, I do not need to reach the Government's futility argument.
In conclusion, whether I interpret § 1101(a)(22) to confine
"national" status to non-citizen residents of U.S. territories, as the
Government asks, or I find that it requires a case-by-case review of the
objective indicia of the petitioner's permanent allegiance to the United
States, following the Ninth and Fourth Circuits, I reach the same
conclusion: Shittu is not and has never been a "national of the United
States" under 8 U.S.C. § 1101(a)(22). Therefore I must deny his
petition. An appropriate Order follows.
AND NOW, this day of May, 2002, upon consideration of the Petition for
a Writ of Habeas Corpus, Petitioner's Motion for Injunctive Relief and
Temporary Restraining Order/Stay of Deportation, and the Government's
response thereto, and for the foregoing reasons, it is hereby ORDERED as
1.Petitioner's Petition for a Writ of Habeas Corpus (document no.
1) is DENIED.
2. Petitioner's Motion for Injunctive Relief and Temporary Restraining
Order/Stay of Deportation (document no. 3) is DENIED as moot.
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