| Bar Bulletin |
August,
2003 |
| MSBA News |
|
Who Is A United States
National?
By
Michael F. Smith
“Who is a United
States national?” Maryland lawyers should be aware that their answer to
this question is different than that of their counterparts in other parts
of the country.
Immigration law
determines the answer to the question. Legally speaking, the answer is
usually only pertinent to immigration matters (for example, nationals are
not deportable). As a matter of general knowledge, it’s interesting to
note that the Fourth Circuit Court of Appeals offers an additional avenue
to becoming a U.S. national than any other federal circuit.
Under immigration
law, all citizens are nationals, but not all nationals are citizens. That
is, one way to become a national is through citizenship. But that is not
the only way. One may also be a non-citizen national (i.e., someone who
acquired “national” status other than through citizenship).
Traditionally, only
persons born in territories of the United States are non-citizen
nationals. (The two remaining territories whose inhabitants are not U.S.
citizens are American Samoa and Swains Island). The term national came
into popular use as the United States acquired territories outside of its
continental limits to reference the non-citizen inhabitants of those
territories.
Maryland lawyers
should be aware, however, that competing views exist as to who besides
citizens and those born in American Samoa and Swains Island may qualify as
a “national.” The traditional notion that non-citizen nationals are only
those born in the outlying possessions of the United States was adopted by
two federal appellate circuits and the Department of Justice’s Board of
Immigration Appeals (BIA) in the 1970s. This view was affirmed again this
year by the BIA and the Ninth Circuit Court of Appeals.
A trend in other
courts, however, is to utilize a federal immigration statute that defines
a national as a (1) citizen of the United States or (2) person who is not
a citizen, but who “owes permanent allegiance to the United States.”
Applying this statute, the court determines if the non-citizen has shown
the requisite permanent allegiance to become a non-citizen national.
Leading the charge
(intentionally or not) is the Fourth Circuit Court of Appeals. In
United States v. Morin, the Fourth Circuit considered a case where the
criminal defendant attempted to hire a “hit man” to kill a Mexican citizen
doctor traveling in the Philippines. The Mexican doctor was a
long-standing U.S. green card holder who had applied for U.S. citizenship.
The murder of a
“national of the United States, while such national is outside of the
United States” is a federal offense punishable by imprisonment or death.
The defendant argued that the doctor was not a non-citizen national of the
United States. The Justice Department argued, and the Fourth Circuit
agreed, that the doctor was a non-citizen national of the United States.
The Fourth Circuit explained that, short of citizenship itself, an
application for citizenship is the “most compelling evidence of permanent
allegiance,” and found that Mexican doctor was a non-citizen national by
virtue of his citizenship application. The Fourth Circuit’s liberal
interpretation of the immigration statute facilitated its affirmation of a
felony conviction.
The fact that
Morin is a criminal case does not dissuade courts from applying it in
immigration cases. District courts in Pennsylvania and New York have
applied Morin in deportation cases to determine if the individual
claiming to be a non-citizen national exhibits the requisite “permanent
allegiance.” In Lee v. Ashcroft, the district court found that an
individual’s 30 years of permanent residence in the United States, his
registration with the Selective Service in 1980 and his application for
naturalization demonstrated the requisite permanent allegiance to be
considered a non-citizen national.
Maryland
immigration lawyers (and criminal lawyers making referrals to immigration
lawyers) should be aware that the Fourth Circuit’s broader definition of a
“national” is an extra argument available for their client. In most cases,
the “national argument” should be a fall-back position. This is especially
true where an individual applies for citizenship only after committing a
criminal act that makes him or her deportable. The courts are not fooled
by such posturing. While the “national argument” is probably not
applicable in most cases, it may just be the winning argument that saves a
client from deportation.
Lawyers in several
other federal circuits know definitively that nationals of the United
States are comprised of U.S. citizens and persons born in American Samoa
and Swains Island. Conversely, Maryland lawyers should be aware that under
the Fourth Circuit’s decision in Morin, certain individuals who
have demonstrated “permanent allegiance” may qualify to join our friends
in Samoa and Swains Island as additional non-citizen nationals of the
United States.
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