American Samoan Citizenship Plaintiffs in the Fitisemanu v United States case have had their petition for a full-panel hearing denied, by the US 10th Circuit Court of Appeal.
On 12 December 2019 the Plaintiffs won a landmark decision in the US District Court for Utah. Judge Clark Waddoups' decision included a declaratory judgement that people born in American Samoa were United States citizens, by virtue of the 14th amendment to the United States Constitution, and that:
"Any State Department policy that provides that the citizenship provisions of the Constitution do not apply to persons born in American Samoa violates the Fourteenth Amendment."
However Judge Waddoups almost immediately stayed his order, which would have given effect to his declaration, until the matter could be resolved by a higher court at the inevitable appeal by the United States Government.
People born in American Samoa, a US territory, are not citizens. Their passports are stamped: "The bearer is a United States National and not a United States Citizen."
Photo: 123rf
In contrast people born in other Pacific US territories, such as Guam or the CNMI are deemed US citizens. However, citizenship has not been granted to them by the US Constitution, but instead by specific laws passed by the US Congress: and in theory could be taken away by Congress.
After the US Government's appeal to the 10th Circuit Court of Appeals, a decision was issued on 15 June 2021 by a 3 Judge Court.
This decision reversed Judge Waddoups' ruling by a 2 to 1 split, with the dissenting judge, Judge Bacharach, holding that American Samoans should be considered citizens under the Constitution. Chief Judge Tymkovich believed that the status quo, of Congress deciding whether to grant citizenship to people born in US territories, should remain in place.
On 31 July 2021 The Fitisemanu Plaintiffs petitioned the 10th Circuit Court of Appeals to review its earlier decision en banc i.e. to review the decision of the 3 Judge Court with a full panel of 11 Judges hearing the case. To be granted an en banc hearing requires the approval of a majority of all the circuit court judges.
Flag of American Samoa Photo: 123rf
En banc hearings are very rarely granted, and on 27 December 2021 the Court denied the petition- with Judge Bacharach again dissenting.
However, this may not be the end of the matter. The lawyers for the Plantiffs have issued a statement, that they are discussing this latest development with their clients. Attorney Charles Ala'ilima noted the detail included in Judge Bacharach's dissent and that the ultimate of issue of whether American Samoa lies within the United States, for the purposes of citizenship, has yet to be directly answered by the US Supreme Court.