“Nationality” and “citizenship” are related-but-distinct concepts under U.S. law. All U.S. nationals are citizens, but the converse is not true. It is possible-albeit in very limited circumstances – for one to possess U.S. nationality without also being a U.S. citizen. Because noncitizen U.S. nationals are limited almost entirely to persons born in American Samoa, legal issues involving noncitizen nationality do not come up often in high profile cases. This is not to say, however, that the noncitizen national classification does not raise interesting questions and legal issues. Today I will examine Matter of Ah San, 15 I&N Dec. 315 (BIA 1975), a 1975 decision of the Board of Immigration Appeals that adjudicated the disposition of noncitizen national family-based immigrant visa petitions – that is, where the noncitizen national files a family-based immigrant visa petition on behalf of an alien.
Defining the Terms: National, Citizen, and Alien
U.S. Federal law defines the term “national of the United States” as follows:
The term ‘national of the United States’ means (A) a citizen of the United States means a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.8 U.S.C. § 1101(a)(22), INA § 101(a)(22)
Thus, a “national” is necessarily either:
- A U.S. citizen; or
- A person who lacks U.S. citizenship but owes permanent allegiance to the United States.
All citizens are nationals. But not all nationals are citizens.
The statute recognizes the distinction between nationality and citizenship in its legal definition of the term “alien”:
The term ‘alien’ means any person not a citizen or national of the United States.8 U.S.C. § 1101(a)(3), INA 101(a)(3)
“Aliens” are often referred to as “noncitizens.” While this suffices for a good definition in almost every case, it is not technically accurate. For example, a noncitizen national born in American Samoa is a noncitizen, but he or she is not an alien. An alien does not owe permanent allegiance to the United States. Mr. Andrew R. Arthur noted a very key distinction. Aliens are subject to removal proceedings under 8 U.S.C. § 1129a, INA 240A, if they violate the immigration laws or are otherwise removable from the United States. Noncitizen nationals, like citizens, are not subject to removal or other provisions of U.S. law applicable to aliens.
Who Are the Noncitizen Nationals?
Before distinguishing noncitizen nationals from citizens, let us first understand what makes one a citizen. Under statute, “a person born in the United States, and subject to the jurisdiction thereof” is a U.S. citizen at birth. 8 U.S.C. § 1401(a), INA § 301(a). This statutory provision is based on the Citizenship Clause of the Fourteenth Amendment. Pursuant to the Immigration and Nationality Act, the term “State” for purposes described herein, “includes,” in addition to the 50 States of the United States, “the District of Columbia, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.” 8 U.S.C. § 1101(a)(36), INA § 101(a)(36). Although it is beyond the scope of our current inquiry, it is worth noting that under current law birthright citizenship does not extend automatically to persons born in unincorporated U.S. territories, a term that describes Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa. Birthright citizenship can, however, be extended via statute, which it has been to all of the aforementioned territories with the exception of American Samoa.
Because statutory birthright citizenship has not been extended to American Samoa, a person born in American Samoa automatically acquires U.S. nationality at birth without U.S. citizenship (if the individual has one or two U.S. citizen parents, he or she may acquire U.S. citizenship at birth via a different provision – but that is a separate matter). Noncitizen nationals may pursue naturalization under a special provision that is more favorable than the general naturalization laws that apply to aliens.
Other than by being born in American Samoa (American Samoa is the only generally populated unincorporated territory) or being born abroad to at least one noncitizen national parent, there is no alternative way to acquire noncitizen nationality today. One cannot opt to acquire nationality without citizenship, and a U.S. citizen cannot renounce citizenship while retaining U.S. nationality. See 8 FAM 308.1-2.
There have been other classes of noncitizen nationals in history. For example, persons born in the Commonwealth of the Northern Mariana Islands were noncitizen nationals rather than citizens prior to 1986. Children born in the Philippines after April 11, 1899, but before January 13, 1941, were noncitizen nationals at birth. See 8 FAM 308.6-2. The Philippines present an interesting case in that Filipino noncitizen nationals lost their U.S. nationality on July 4, 1946, when the United States recognized the Philippines as independent. Id.
There is much more to say on the subject of noncitizen nationality in the United States, but I will leave the introduction here for we have already laid the foundation to explore the legal issues that were raised in Matter of Ah San.
Matter of Ah San, 15 I&N Dec. 315 (BIA 1975)
Matter of Ah San was an administrative legal decision rendered by an immigration judge on January 31, 1975. Decisions by immigration judges are ordinarily non-precedential, meaning that they only apply to the case in which they were rendered and do not bind immigration judges or administrators in other proceedings. However, in the cause of Matter of Ah San, the Board of Immigration Appeals, the highest administrative review panel for immigration matters, affirmed the immigration judge’s decision and published it as precedent. Thus, absent contrary precedent from an appellate court having jurisdiction over a case or from the Board itself, Matter of Ah San binds immigration adjudicators nationwide. Today – Matter of Ah San remains a binding precedent on immigration judges and adjudicators.
Below, I will distinguish between the immigration judge and the Board in discussing Matter of Ah San. That is, when I am discussing the bulk of the decision written by the immigration judge, I will refer to the immigration judge. When I am discussing the Board’s affirmation of the immigration judge’s decision, I will refer to the Board.
I explained the concepts of precedent decisions and the Board of Immigration Appeals in earlier articles:
You can read the entire Matter of Ah San decision below PDF:
Legal Issue in Matter of Ah San
Matter of Ah San concerned a family-sponsored immigrant visa petition filed under section 203(a)(2) of the Immigration and Nationality Act. The statute, in the pertinent part, provides that an alien lawfully admitted for permanent residence may file an immigrant visa petition on behalf of his or her unmarried son or daughter for the purpose of giving said son or daughter lawful permanent resident status. Matter of Ah San was unusual in that the petitioner – here the mother of the petition beneficiary – was not an alien lawfully admitted for permanent residence. Instead, she was a noncitizen national of the United States who had acquired such status at birth in American Samoa. Let us examine the facts in bullet-point form:
- The applicant was a 14-year old citizen and national of Western Samoa who was applying for admission into the United States at a port of entry in Hawaii with an approved family-sponsored immigrant visa petition and a visa.
- The petitioner was the applicant’s mother. Although the mother filed the immigrant visa petition under the provision for lawful permanent resident petitioners, the mother was a United States national by way of her birth in American Samoa on March 3, 1941.
- The question in the case involved whether the petitioner was eligible to afford her daughter lawful permanent resident status. This question arose because the petitioner had always resided in American Samoa and had never resided in the United States. She had only been present in the United States for three weeks in 1974. Ordinarily, a lawful permanent resident filing a petition under section 203(b)(2) of the Immigration and Nationality Act must be residing in the United States to the extent that residing in the United States is a requirement for maintaining lawful permanent resident status.
The immigration judge, subsequently affirmed by the Board, noted that the issue presented was novel because “[t]here is little by way of legal authority with respect to the rights of [noncitizen] nationals in the United States.” Matter of Ah San, 15 I&N Dec. at 316.
Point One: Legal Rights of Noncitizen National Petitioners
While there was not much precedent on the subject of noncitizen national petitioners under the immigration laws, it was not the case that there was no precedent. The immigration judge noted that the only extant precedent that had “any analogy to the facts in the instant case” was the 1955 decision in the Matter of B-, 6 I&N Dec. 555 (BIA 1955) . Matter of B-, like Matter of Ah San, involved a family-sponsored immigrant visa petition by a noncitizen national parent of an alien child. You can see the entire Matter of B- decision below:
The immigration judge in Matter of Ah San quoted the pertinent passage from the Board’s decision in Matter of B-:
Section 203(a)(3) [of the Immigration and Nationality Act] provides a preference for children of aliens lawfully admitted for permanent residence. The term ‘lawfully admitted for permanent residence’ is defined in Section 101(a)(20) as the status of having been accorded the privilege of residing in the United States as an immigrant. The petitioner is a national in possession of a United States passport and thus appears to have been lawfully accorded the privilege of residing permanently in the United States. She will be regarded as eligible to file a petition for preference … for the minor beneficiary.Matter of Ah San, 15 I&N Dec. at 316, quoting Matter of B- 6 I&N Dec. at 556.
The immigration judge in Matter of Ah San observed that the Board in Matter of B- had “appeared to hold” that, for the purposes of filing a family-sponsored immigrant visa petition, “ “a national of the United States may be considered to have the rights of a permanent resident of the United States.” Matter of Ah San, 15 I&N Dec. at 316. However, the immigration judge in Matter of Ah San went further:
A national of the United States does not have the rights of a citizen of the United States. However, as a national he is accorded certain rights and privileges by reason of being a national which should be at least equal to those of an alien who has been admitted to the United States for permanent residence. In fact, the rights will be even larger than those of an alien who has been admitted for permanent residence because a national would not have to comply with the requirements of the definition of a permanent resident as contained in section 101(a)(20) of the Immigration and Nationality Act, nor would any strictures which may be contained in section 212(a)(20) of the Act apply.Matter of Ah San, 15 I&N Dec. at 316.
Section 101(a)(20), referenced by the immigration judge, defines generally the term “lawful permanent resident.” INA 212(a)(20), also cited by the judge, refers to an excludability provision for aliens not in possession of a valid immigrant visa – this law no longer exists in the same form. The general point is that noncitizen nationals are not required to have a visa to enter the United States, nor are they subject to requirements that they must live in the United States to retain their status as permanent residents.
The immigration judge also made reference to a point that I noted in the introduction – noncitizen nationals, unlike lawful permanent residents, are not subject to removal proceedings (here, the judge addressed the now superseded exclusion hearings):
‘Most of the native inhabitants of these possessions are nationals of the United States and as such they are not subject to the exclusion proceedings of our immigration laws.’Matter of Ah San, 15 I&N Dec. at 317 (quoting Congressional report)
The immigration judge quoted from Gordon and Rosenfeld – Immigration Law and Procedure for a broader point about the lack of amenability of the immigration laws to noncitizen nationals:
‘[Noncitizen nationals] are not aliens and consequently have never been subject to the immigration laws. They can enter and leave the United States at will, in the same manner as citizens.’Matter of Ah San, 15 I&N Dec. at 317
In affirming the immigration judge’s decision in Matter of Ah San, the Board of Immigration Appeals noted specifically that it agreed with the immigration judge’s analysis of Matter of B-:
We agree with [the immigration judge’s] conclusion that Matter of B-, 6 I&N Dec. 555 (BIA 1955) stands for the proposition that, although a noncitizen national of the United States does not have the rights of a citizen, he or she is accorded certain rights and privileges by reason of being a national which are at least equal to those of an alien who has been lawfully admitted to the United States for permanent residence.Matter of Ah San, 15 I&N Dec. at 318
The Board also expressly agreed with the immigration judge’s finding that noncitizen nationals have greater rights than lawful permanent residents because they are not subject to the definition of “lawful permanent resident” and the associated legal requirements or to the exclusion proceedings for lacking a valid visa or entry document.
Applying the Aforementioned Principles to Facts
We now return to the issue in the instant case. In Matter of Ah San, the petitioner – being the mother of the alien beneficiary — was a noncitizen national who had never resided outside of American Samoa. Had she been a lawful permanent resident, she would not have been able to file an approvable immigrant visa petition because she would not have been in complyiance with the rules governing the maintenance of permanent resident status. But, despite the fact that she was petitioning under a provision that was written for lawful permanent residents, she was, of course, a national of the United States rather than a permanent resident thereof. Was she still bound by the rules that would apply were she instead a permanent resident?
The immigration judge concluded that that the mother was, in fact, eligible to confer lawful permanent resident status on her daughter. See the key holding below:
I consider that a national while he does not have the rights of a citizen of the United States has at least the rights of a permanent resident of the United States, and that he has these rights regardless of whether he complies with the usual requirements relating to permanent residence.Matter of Ah San, 15 I&N Dec. at 317.
That is, for purpose of filing immigrant visa petitions, a noncitizen national has at least the same rights as a lawful permanent resident. However, the rights of the noncitizen national petitioner are more favorable than the rights of a lawful permanent resident petitioner because, while lawful permanent residents have to comply with immigration laws regarding the maintenance of that status when filing on behalf of a qualifying relative, noncitizen nationals do not have an immigration status to maintain. The immigration judge provided an example:
It would … not be necessary that [a national] comply with such matters as maintaining a residence in the United States or having intention of returning to the United States or in connection with the filing of a visa petition that he establish that he is a residence of the United States.Matter of Ah San, 15 I&N Dec. at 317.
The immigration judge’s logic makes intuitive sense. Lawful permanent residents and noncitizen nationals are both eligible to file immigrant visa petitions on behalf of certain relatives for lawful permanent resident status. In order to be an eligible petitioner, the petitioner must actually be a lawful permanent resident or a national. Lawful permanent resident petitioners must show that they are in compliance with certain rules in order to maintain their status. However, noncitizen nationals are not subject to those rules – nationality cannot be lost in the same way as an immigration status. Thus, the immigration judge reasoned that requirements that apply in the context of permanent resident petitioners do not necessarily apply in the same way to noncitizen national petitioners.
The former Immigration and Naturalization Service, which was challenging the applicant’s application for admission, raised additional concerns that the immigration judge rejected. The Service argued that section 203(a) of the Immigration and Nationality Act was enacted for the purpose of combining families. In Matter of Ah San, there was no indication that the beneficiary – the 14-year old daughter of the petitioner – was accompanying or going to join a permanent resident of the United States (her mother was staying in American Samoa). The immigration judge rejected this concern on two grounds. Firstly, the immigration judge expressed his doubts that the Service was correct that combining families was intrinsically a goal of section 203(a). Secondly, the immigration judge stated that assuming arguendo that the Service was correct, “I do not consider that it is applicable where a national of the United States is involved.” Matter of Ah San, 15 I&N Dec. 318. The immigration judge explained with respect to the facts of Matter of Ah San:
The national is residing in a territory of the United States, being American Samoa, and I see no reason why he should have to establish that he is residing within the geographical United States for the purpose of conferring preference upon a child.Matter of Ah San, 15 I&N Dec. 318.
Thus, the immigration judge ruled in favor of the child beneficiary. However, upon request by the Service, the immigration judge certified his decision to the Board of Immigration Appeals for its review.
As I noted, the Board reviewed the immigration judge’s decision, affirmed it with respect to all of the issues discussed above, and it published the decision as binding precedent for all adjudications. However, the Board disagreed with the immigration judge to the limited extent that the immigration judge stated that a national of the United States cannot forfeit his right to enter the United States unless he voluntarily relinquishes his allegiance to the United States. Matter of Ah San, 15 I&N Dec. at 318-19. The Board noted that Congress does have the authority to deprive noncitizen nationals of their U.S. nationality. Id. Recall that we discussed in brief Congress’s removing U.S. nationality status from Filipinos when it recognized the Philippines as independent.
Questions involving noncitizen nationals in immigration law are relatively uncommon due to the fact that there are very few noncitizen nationals in the grand scheme of things. The immigration judge in Matter of Ah San alluded to this in noting that there were very few immigration precedents dealing with noncitizen nationals, much less with the specific issue of immigrant visa petitions filed by noncitizen nationals. The novelty of Matter of Ah San likely played a role in its being certified to the Board for review and published as precedential.
Matter of Ah San is an excellent and correct decision (the Board’s one qualification was also correct). The immigration judge thoughtfully considered what it means to be a national lacking citizenship and how that position differs both from citizenship and lawful permanent resident status. Matter of B- had established clearly that noncitizen nationals are, at a minimum, entitled to the same rights as petitioners as are accorded to lawful permanent residents. The immigration judge correctly went a step further – noting that in light of the fact that noncitizen nationals are not aliens who are subject to immigration laws regarding status or permission to enter the United States, they have greater rights than lawful permanent residents despite not having the same rights as citizens. Thus, Matter of Ah San expanded the Board’s holding in Matter of B-. Matter of B- held clearly that noncitizen nationals can file immigrant visa petitions for alien relatives. Matter of Ah San explained that although noncitizen nationals file under the same provision of the Immigration and Nationality Act as lawful permanent residents, they are not subject to the same immigration-status-related requirements as lawful permanent residents.
While Matter of Ah San is specifically about family-based immigrant visa petitions, there are several quotes and passages in the decision that may be broadly applicable to questions about the position of noncitizen nationals generally.