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U.S. Attny’s Office asks to dismiss citizenship lawsuit

The U.S. Attorney’s Office has asked the federal court in Washington D.C. to dismiss the citizenship lawsuit against Hillary Rodham Clinton in her capacity U.S. Secretary of State, the State Department, and Janice L. Jacobs, in her official capacity as Assistant Secretary of State for Consular Affairs.

Lead plaintiff in the suit is Leneuoti F. Tuaua, a local resident joined by five individuals and the Samoan Federation of America, a California based organization.

The defendants’ legal counsel, Assistant U.S. Attorney, Wynne P. Kelly filed the 26-page response yesterday saying that the lawsuit should be dismissed because the Samoan Federation lacks standing to bring the claims it purports to bring; many of the Individual plaintiffs’ claims are moot and/or untimely; and plaintiffs fail to state a claim as a matter of law. For the reasons more fully explained below, Plaintiffs’ complaint should be dismissed, it says.

“At the heart of plaintiffs’ complaint is an attempt to sidestep Congress’s proper exercise of its constitutionally enumerated power to determine the naturalization process for potential citizens in favor of a judicial fiat declaring an entire class of persons citizens of the United States,” Kelly argued.

According to the lawsuit,  the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution, “All persons born… in the United States, and subject to the jurisdiction thereof, are citizens of the United States...”

The plaintiffs were born in American Samoa, “Therefore, they are U.S. citizens by virtue of the Citizenship Clause,” the suit states.

However, Kelly argued that it is well-settled that the territorial scope of the Citizenship Clause “does not extend to unincorporated territories like American Samoa.” Additionally, the determination of who should be eligible for naturalization and/or birthright citizenship — either through allowance of a territory’s admission as a state into the Union, or through Congress’s duty to make rules and regulations for the territories — is a responsibility specifically delegated to Congress by the Constitution.”

“ the extent plaintiffs raise policy arguments to question Congress’ decisions in this area, that raises political questions not subject to review by this Court,” the defense further argued.

The defense also noted that designating persons born in American Samoa as nationals but not U.S. citizens does not violate the Fourteenth Amendment because, as numerous courts have held, the phrase “the United States” does not include the territories of the United States and, therefore, Plaintiffs’ claims fail as a matter of law.

And while plaintiffs’ challenge to Congress’ properly-exercised authority appears to be the first such challenge related to the “outlying territory of American Samoa”, other persons have raised similar challenges involving other unincorporated territories of the U.S., said Kelly.

For example, persons born in the Philippine Islands during that archipelago’s period as an outlying, unincorporated territory of the United States, or persons born to parents who were born in the Philippine Islands during the territorial time period, brought cases seeking a judicial determination of their citizenship.

Kelly explained that federal circuit courts of appeals have held that the territorial scope of the phrase “the United States” did not extend to cover territories such as the Philippines, which was, at that time, an outlying, unincorporated territory without a path to statehood.

Kelly further states that the U.S. Supreme Court has ruled that citizenship is not within the class of fundamental constitutional rights that would apply to unincorporated territories in the absence of a treaty provision or direct Congressional action.

Kelly said plaintiffs argued that the federal court should declare that the Fourteenth Amendment somehow automatically confers citizenship on the U.S. nationals of American Samoa, despite the Constitution’s explicit grant of authority in the matters of naturalization to Congress – an authority that Congress has properly exercised through provisions of the federal Immigration and Naturalization Act (INA).

Further, Congress has specifically addressed the status of American Samoa as an outlying possession under another provision of INA and federal code.

In the lawsuit, plaintiffs alternatively claim that the Department of State’s policy and practice of imprinting endorsement code 09 on the passports issued to persons born in American Samoa violates the provision of the federal Administrative Procedure Act, as that policy is “contrary to constitutional right” and therefore “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

“This claim fails as a matter of law and should be dismissed,” said Kelly, who pointed out that plaintiffs have failed to allege sufficient facts that the State Department’s administrative decision to imprint accurately endorsement code 09 on the passports of persons born in American Samoa was in any way “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

As for the Samoan Federation group, Kelly said the Federation has failed to plead facts demonstrating that any of its members have standing to sue in his or her own right. He said the complaint only states generally that the Federation “is one of the oldest Samoan organizations in the continental United States” but does not include any concrete facts demonstrating that any individual member has standing to sue in his or her own right.

Additionally, “Samoa” may refer to not only American Samoa but also the independent nation of Samoa. Further, the Federation has failed to plead that there are members of the Federation who are not naturalized citizens, and are non-citizen U.S. nationals by virtue of their birth on American Samoa, therefore, the Federation’s allegations are insufficient to demonstrate standing to sue as an association on behalf of its members as the Federation has failed to allege an injury-in-fact or an imminent injury.

In tomorrow’s edition, is Congressman Faleomavaega Eni’s friend of the court brief supporting the State Department’s motion to dismiss the case.