9th Circuit Finds Filing Naturalization Application Does Not Establish Acquisition Of U.S. Nationality

IMMIGRATION LAW & POLICY

Naturalization and Citizenship

9th Circuit finds filing naturalization application does not establish acquisition of U.S. nationality
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

The U.S. Court of Appeals for the Ninth Circuit has ruled that a lawful permanent resident who applied for naturalization and indicated his allegiance to the United States on the application did not thereby gain status as a U.S. national. The decision issued on petition for review of a removal order.

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.

In Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001), the Ninth Circuit had suggested that a lawful permanent resident may also qualify for status as a U.S. national by applying for naturalization, and at least two courts have so found. United States v. Morin, 80 F.3d 124 (4th Cir. 1996); Lee v. Ashcroft, 216 F.Supp.2d 51 (E.D.N.Y. 2002). However, the Board of Immigration Appeals recently rejected this concept. In re Navas-Acosta, 23 I. & N. Dec. 586, Int. Dec. 3489 (BIA Apr. 29, 2003). With this latest decision, the Ninth Circuit has now also rejected the concept. The court found most persuasive the fact that a naturalization application can be withdrawn or denied after it is filed. The court concluded that only completion of the naturalization process can result in a grant of U.S. nationality.

Perdomo-Padilla v. Ashcroft, No. 01-71454
(9th Cir. June 23, 2003).