BIA Rules That Taking Oath Of Allegiance Pursuant To A Naturalization Application Does Not Establish Acquisition Of U.S. Nationality

IMMIGRATION LAW & POLICY

Naturalization and Citizenship

BIA rules that taking oath of allegiance pursuant to a naturalization application does not establish acquisition of U.S. nationality
Immigrants' Rights Update, Vol. 17, No. 3, June 3, 2003

The Board of Immigration Appeals has ruled that that a lawful permanent resident who took an oath of allegiance to the United States in conjunction with his application for naturalization did not thereby acquire U.S. nationality.

Section 101(a)(22) of the Immigration and Nationality Act defines a U.S. national as an individual who "owes permanent allegiance to the United States." All U.S. citizens are also nationals of the United States. In addition, Congress by statute has conferred U.S. nationality upon individuals born in certain U.S. territories. INA § 308. Under this statute, individuals born in American Samoa are U.S. nationals, even though they are not U.S. citizens. The BIA's decision finds that this is the only means by which noncitizens may meet INA sec. 101(a)(22)'s definition of an individual who "owes permanent allegiance to the United States."

The BIA's decision rejects the suggestion of the Ninth Circuit Court of Appeals that applying for naturalization may confer U.S. nationality on a lawful permanent resident. In Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001), the court stated that, for a noncitizen to qualify for status as a U.S. national, "a person must, at a minimum, demonstrate (1) birth in a United States territory or (2) an application for United States citizenship." Id. at 757. In Hughes, the petitioner had not applied for naturalization. At least one district court has found a naturalization applicant to be a U.S. national under this definition. Lee v. Ashcroft, 216 F.Supp.2d 51 (E.D.N.Y. 2002). However, the BIA's recent decision rejects the concept that applying for naturalization can confer U.S. nationality.

In re Navas-Acosta, 23 I. & N. Dec. 586,
Int. Dec. 3489 (BIA Apr. 29, 2003).