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2020 Digest Chapter 1

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2020 Digest Chapter 1 Contents CHAPTER 1 ................................................................................................................................... 1 Nationality, Citizenship, and Immigration ................................................................................ 1 A. NATIONALITY, CITIZENSHIP, AND PASSPORTS ...................................................................... 1 1. Fitisemanu v. United States ................................................................................................ 1 2. Indication of Sex on U.S. Passports .................................................................................... 9 a. Zzyym v. Pompeo ............................................................................................................ 9 b. Morris v. Pompeo .......................................................................................................... 15 3. Citizenship Claims in Cases of Assisted Reproductive Technology (“ART”)....................... 17 4. U.S. Passports Invalid for Travel to North Korea .............................................................. 22 B. IMMIGRATION AND VISAS .................................................................................................. 22 1. Nonreviewability .............................................................................................................. 22 a. Bautista-Rosario v. Mnuchin ......................................................................................... 22 b. Nkrumah v. Pompeo ..................................................................................................... 29 c. Consular Nonreviewability ............................................................................................ 31 2. Diversity Visa Lottery ........................................................................................................ 31 3. Cuthill v. Pompeo .............................................................................................................. 36 4. Litigation regarding the EB-5 Immigrant Investor Program (Wang) ................................. 37 5. Visa Regulations and Restrictions ..................................................................................... 42 a. Measures in response to the COVID-19 pandemic ........................................................ 42 b. Proclamation 9645 ....................................................................................................... 46 c. Restrictions on nonimmigrant visas likely to support PRC military technology ............. 58 d. Changes to visa regulations regarding birth tourism .................................................... 59 e. Other visa restrictions ................................................................................................... 60 f. Proclamation 9945: Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System ......................................................................................... 60 g. Visa Ineligibility on Public Charge Grounds ................................................................... 61 7. Removals and Repatriations ............................................................................................. 61 C. ASYLUM, REFUGEE, AND MIGRANT ISSUES ........................................................................ 62 1. Temporary Protected Status ............................................................................................ 62 a. Yemen ........................................................................................................................... 62 b. Somalia ......................................................................................................................... 62 c. South Sudan .................................................................................................................. 62 d. Ramos v. Nielsen and other litigation ........................................................................... 63 2. Deferred Enhanced Departure ......................................................................................... 71 3. Refugee Admissions and Resettlement ............................................................................ 71 4. Rohingya Refugees ........................................................................................................... 76 5. Migration Protection Protocols (“MPP”) .......................................................................... 77 6. Eligibility for Asylum ......................................................................................................... 86 a. Capital Area Immigrants’ Rights Coalition v. Trump ..................................................... 86 b. East Bay Sanctuary Covenant v. Trump ........................................................................ 90 7. Asylum Cooperative Agreements ..................................................................................... 93 Cross References ........................................................................................................................ 94 CHAPTER 1 Nationality, Citizenship, and Immigration A. NATIONALITY, CITIZENSHIP, AND PASSPORTS 1. Fitisemanu v. United States On April 14, 2020, the United States submitted its brief on appeal in the U.S. Court of Appeals for the Tenth Circuit in Fitisemanu v. United States, Nos. 20-4017 & 20-4019, a case concerning whether American Samoa—a U.S. territory—is “in the United States” for purposes of the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution. The district court held that American Samoa is “in the United States,” meaning nearly every person born in American Samoa would be a U.S. citizen at birth under the Fourteenth Amendment instead of a U.S. national. See Digest 2015 at 6-11 for discussion of the D.C. Circuit’s holding (contrary to the district court’s decision in Fitisemanu) on the same issue in Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015), cert. denied, 579 U.S. ___, 136 S. Ct. 2461 (2016). Excerpts follow from the U.S. brief on appeal in Fitisemanu. The United States filed its reply brief on May 26, 2020 (not excerpted herein) and the Tenth Circuit held oral argument on September 23, 2020. The Government of American Samoa intervened to oppose the holding that American Samoa is “in the United States,” arguing that “the people of American Samoa do not want U.S. citizenship at this time,” and it would be an “exercise of paternalism—if not overt cultural imperialism" for federal courts to impose U.S. citizenship on a population that does not want it. Excerpts follow from the April 14, 2020 U.S. brief on appeal in the Tenth Circuit in Fitisemanu. ___________________ 1 2 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW * * * * I. American Samoa Is Not “In The United States” For Purposes of The Citizenship Clause The Citizenship Clause of the Fourteenth Amendment provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U.S. Const. amend. XIV, § 1, cl. 1. Constitutional text, judicial precedent, and historical practice all demonstrate that American Samoa is not “in the United States” for purposes of the Citizenship Clause. The district court’s contrary conclusion principally rests on a clear misreading of United States v. Wong Kim Ark, 169 U.S. 649 (1898), which neither presented nor addressed the geographic scope of the phrase “in the United States” for purposes of the Citizenship Clause. A. Constitutional Text, Judicial Precedent, and Historical Practice Confirm That Unincorporated Territories Are Not “In the United States” 1. The correct reading of the Citizenship Clause is that U.S. territories are not “in the United States” within the meaning of the Clause, because that phrase encompasses only the 50 States and the District of Columbia. From the outset, the Constitution envisioned a United States consisting of states that had ratified the Constitution and one federal district carved from those states, along with future states as Congress saw fit to admit them into the Union. U.S. Const. art. I, § 8, cl. 17; art. IV, § 3, cl. 1; art. VII. Those states were to exercise concurrent sovereignty with the federal government. See U.S. Const. amend. X… These provisions set out a fundamental distinction between “the United States” and the territories belonging to the United States. In addition, while the Citizenship Clause of the Fourteenth Amendment is confined to individuals born “in the United States, and subject to the jurisdiction thereof,” the Thirteenth Amendment prohibits slavery “within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1 (emphasis added). The Thirteenth Amendment’s broader language demonstrates that “there may be places subject to the jurisdiction of the United States but which are not incorporated into it, and hence are not within the United States in the completest sense of those words.” Downes v. Bidwell, 182 U.S. 244, 336-37 (1901) (White, J., concurring); see also id. at 251 (opinion of Brown, J.). The Eighteenth Amendment used similar language distinguishing between “the United States” and the territories, barring “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction
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