American Samoans sue for birthright citizenship

HONOLULU — John Fitisemanu, who works for a lab company in Utah, has paid U.S. taxes and been subject to American laws his whole life. But the 53-year-old father and husband isn’t considered a U.S. citizen by the federal government because he was born in American Samoa, a U.S. territory and the only place in the country without automatic claim to citizenship. Now, he’s suing to be recognized as an American.

Fitisemanu is the lead plaintiff on a lawsuit filed Tuesday on behalf of American Samoans in Utah to be treated as U.S. citizens under the 14th Amendment of the Constitution. The Associated Press obtained the documents before the case was filed.

American Samoa, a U.S. territory since 1900, is a cluster of islands 2,600 miles (4,184 kilometres) southwest of Hawaii perpetually stuck in a legal loophole. People born in the territory are labeled U.S. nationals. Under that status, they cannot vote, run for office, sponsor family members for immigration to the U.S., apply for certain government jobs, or serve on a jury — despite paying taxes to Uncle Sam. They’re even issued special U.S. passports that say: “This bearer is a United States national and not a United States citizen.”

With colleagues, “it’s kind of like an office joke — ‘Hey! John is not a citizen, he’s an alien!’ I know they’re joking, but it still hurts,” Fitisemanu told the AP. “It feels like a slap in your face, that you’re born on U.S. soil, but you’re not recognized as a U.S. citizen.”

He’s been rejected for jobs that list U.S. citizenship as a requirement. Prospective employers “need me to show them proof that I am a U.S. citizen, which I am not.” Around elections, “I sit quietly at my cubicle, and don’t say a word, because I know I can’t vote,” he said. “It’s kind of embarrassing.”

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Rosavita Tuli, another plaintiff in the case, has had to obtain special permits and pay fees that wouldn’t apply to U.S. citizens when visiting her aging parents outside American Samoa, according to court documents.

Although American Samoans can pursue naturalized citizenship, the lawsuit says it is a “lengthy, costly, and burdensome” process. The cost to apply is $725, and legal fees pile up if applicants hire an attorney to help navigate the process. For Fitisemanu, a previous divorce and other financial burdens have prevented him from going that route.

Also, “there’s no guarantee of success,” said Neil Weare, the attorney leading the suit, and president of non-profit Equally American. “If someone has a birth certificate showing they were born on U.S. soil, they shouldn’t have to jump through any more hoops to be recognized as a U.S. citizen.”

Those born in the territory, however, can claim citizenship at birth if one of their parents is a U.S. citizen. The same generally holds true for children born abroad to Americans.

This is Weare’s second attempt on the issue. A previous case he led stalled in 2016 when the Supreme Court declined to reconsider a ruling from a lower court in D.C., which found the constitutional guarantee of birthright citizenship didn’t apply to American Samoa, and referred back to controversial colonial era decisions from the early 20th century after the U.S. acquired a spate of territories in the Spanish American War.

Known as the “Insular Cases,” the Supreme Court distinguished between “incorporated” and “unincorporated” territories. The former, such as Arizona and New Mexico, mostly settled by white people, were thought destined to be a permanent part of the U.S. The latter, such as American Samoa, weren’t considered candidates for statehood, whose inhabitants were described as “alien races” and “uncivilized,” and thus weren’t granted full constitutional rights.

Over the years, Congress has decided on a per territory basis to allow those born in Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands to claim citizenship by birth. American Samoa’s population of about 55,000, however, has continued to fall to the wayside.

“This is the holding pattern we’ve been in now for over a century,” said Sam Erman, an expert in constitutional law and a professor at the University of Southern California. Still, Erman and many legal scholars agree that “American Samoans are clearly citizens under the 14th Amendment.”

This lawsuit places a question mark over whether the millions that lived in the Philippines while the country was a U.S. territory for five decades until 1946 would also be able to seek U.S. citizenship, said Erman, who plans to file a legal brief on the current lawsuit.

The local American Samoan government has before taken a nuanced view over the issue, given concern about how aspects of Samoan life and culture “would be jeopardized if subjected to scrutiny under the 14th Amendment,” according to court documents filed in 2014 by lawyers representing the government. American Samoa Governor Lolo Moliga didn’t respond to a request for comment.

The U.S. State Department, named as the defendants on the lawsuit, didn’t immediately respond to a request for comment.

Utah has a major Samoan population. If the case there is decided favourably, that would create a “circuit split” — a conflicting ruling to what was previously decided in another court, which could add pressure to the Supreme Court to review.

Until then, Fitisemanu is standing firm: “People will say what they want to say, and I’m going to believe in what I want to believe, and I believe that I should be a U.S. citizen.”

Sophia Yan, The Associated Press