Tuesday, July 13, 2010

Birth In Philippines During Territorial Period Does Not Confer U.S. Citizenship

Nolos v. Holder, No. 08-60786 (5th Cir. July 9, 2010) (per curiam) (Jolly, Dennis, Jordan, D.J.)

Deriviative citizenship and a categorical approach/aggravated felony issue in the same opinion? You'll want to pay attention to this one.
Nolos asserts that he derives United States citizenship from his parents, who he claims became United States citizens at birth because they were born in the Philippines when the country was a United States territory. We have not previously decided this question. However, the Second, Third and Ninth Circuits have held that birth in the Philippines at a time when the country was a territory of the United States does not constitute birth “in the United States” under the Citizenship Clause, and thus did not give rise to United States citizenship. The courts of appeals explained that the term “United States” as it is used in the Citizenship Clause of the Fourteenth Amendment did not, without more, include “United States territories simply because the territories [were] ‘subject to the jurisdiction’ or ‘within the dominion’ of the United States.” In reaching their holdings, the courts found guidance from the Supreme Court’s Insular Cases jurisprudence on the territorial scope of the term “the United States” as used in the Citizenship Clause of the Fourteenth Amendment. The Insular Cases were a series of Supreme Court decisions that dealt with various challenges to duties on shipments from Puerto Rico to the United States mainland.

(cites omitted). Against this case law, Nolos,
relying on United States v. Wong Kim Ark, argue[d] that the Fourteenth Amendment codified the principles of the English common law that birth within a sovereign’s territory confers citizenship. On that basis, Nolos urges that his parents acquired United States citizenship at birth because the Philippines were under the dominion and control of the United States at the time of their births. But as have the Ninth and the Second Circuits before us, we decline to give Wong Kim Ark such an expansive interpretation. As the Second Circuit explained, the question of the territorial scope of the Citizenship Clause of the Fourteenth Amendment was not before the Court in Wong Kim Ark[, which addressed whether a child born in San Francisco to alien parents was a U.S. citizen.]

(cites omitted). The court concluded:
[W]e find the reasoning of our sister circuits persuasive and hold that “persons born in the Philippines during its status as a United States territory were not ‘born . . . in the United States’ under the Fourteenth Amendment.” Accordingly, given that Nolos’s parents did not acquire United States citizenship by virtue of their birth in the Philippines when it was a United States territory, Nolos could not have derived United States citizenship from them and is therefore removable if he is found to have been convicted of an aggravated felony.

As for the aggravated felony, Nolos had been convicted of theft under a divisible Nevada statute that reached both generic and non-generic theft. His information alleged one of the alternatives that was generic theft.
Nolos appears to suggest that the guilty plea agreement fails to indicate the prong of the statute to which he had pleaded guilty. But it states that Nolos pleaded guilty to theft under Nevada Revised Statutes § 205.0832, “as more fully alleged in the charging document.” Therefore, it incorporates by reference the more specific description of Nolos’s offense in the information . . . .

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