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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SYDNEY BRADSHAW, :

Petitioner :

:

v. : No. 2:02-CV-04268-CSG

:

HONORABLE JOHN ASHCROFT, :

UNITED STATES ATTORNEY :

GENERAL, :

Respondent :

:

GOVERNMENT’S RESPONSE TO PETITIONER’S 

“ADDITIONAL SUPPLEMENTAL BRIEF TO SUPPORT

 PETITIONER’S CLAIM TO BE A NATIONAL” 

I. BACKGROUND

This is an alien habeas corpus case. The Court in

a memorandum order filed June 3, 2002 (No. 01-CV-05221)

summarized the facts of Bradshaw’s case and denied his

petition for a writ of habeas corpus. Bradshaw filed

exceptions to the order, the latest claiming that he is a

“national” of the United States and immune from removal. In

an order filed September 9 the Court directed the government

to respond to Bradshaw’s contention that he is a “National.” 

For the reasons that follow, the claim should be

dismissed.

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 1 of 14
1 It cannot be adjudicated now. An alien

convicted of an aggravated felony is

ineligible for citizenship, as one lacking

“good moral character.” 8 U.S.C.

§ 1101(f)(8). One an alien is placed in

removal proceedings, any pending application

for naturalization must be denied. 8 U.S.C.

§ 1429. 

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II. ARGUMENT

Bradshaw’s filing says that he acquired the status

of a “national” when he filed an intent to naturalize with

the INS in 1973, on form N-400. Bradshaw says that this

filing was “to keep his employment with the city of New

York;” Petitioner’s Response To Government’s Reply (No. 01-

CV-05221 Aug. 21, 2002). Because this filing signaled his

“allegiance” to the United States, Bradshaw says that he is

now a “national” of the United States; cf. Hughes v.

Ashcroft, 255 F.3d 752 (9th Cir. 2001). Apparently Bradshaw

does not dispute that the petition was never adjudicated.1

In the latest dodge to removal, Bradshaw and other

criminal aliens are relying on some unfortunate dicta in the

Ninth Circuit’s decision in Hughes v. Ashcroft, supra, to

the effect that one cannot become a “national” without

filing a petition for naturalization. The language is

unfortunate because one cannot acquire the status of a 

national by any volitional act at all, save being born.

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 2 of 14
2 American Samoa consists of seven islands in

the South Central Pacific, with a population

of about 65,000. One of them, Swains Island,

is a privately-owned atoll with an area of

about 1.25 square miles, at 11" 04'S, 171"

05'W; about 100 people work there on a copra

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In other words, Bradshaw would simply opt out of

the Congressional scheme of “aliens,” “removal,” and

“aggravated felons” by unilaterally declaring himself a

“national” of the United States. 

The Immigration & Nationality Act (INA) defines a

“national” of the United States as either a citizen or “a

person, though not a citizen of the United States, [who]

owes permanent allegiance to the United States.” 8 U.S.C.

§ 1101(a)(22)(B). Title III, Chapter 1 of the INA delineates

who is a citizen or national of the United States at birth,

beginning at INA Section 301 (8 U.S.C. § 1401). “Citizens”

are a subset of “nationals;” persons who are “citizens” of

the United States are also “nationals” of the United States,

but not the other way about. Those persons who are nationals

but not citizens at birth are described at Section 308,

which includes people born in the “outlying possessions” of

the United States. See 8 U.S.C. § 1408(a). The “outlying

possessions” of the United States are, now, American Samoa

and Swain’s Island. 8 U.S.C. § 1101(a)(29).2

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 3 of 14
farm, owned by one Jennings. The United

States extended sovereignty over it on March

4, 1925. 

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This classification of people as noncitizen

“nationals,” limited only to natives of American Samoa and

Swain’s Island, seems in 2002 one hardly worth making. But

it was not always thus. The concept of “nationals” of the

United States originated at the Treaty of Paris, by which

the Spanish-American war ended on December 10, 1898. Spain

ceded the Philippines, “Porto Rico” (as it was then called)

and Guam to the United States, and freed Cuba. These first

three became unincorporated territories of the United

States, and their inhabitants were considered “nationals” of

the United States. See Rabang v. Boyd, 353 U.S. 427, 430-31,

77 S.Ct. 985, 987-88, 1 L.Ed.2d 956 (1957). In 1902 Congress

passed the Philippines Government Act, which rendered the

inhabitants of those islands “nationals” but not citizens of

the United Sates. See Valmonte v. INS, 136 F.3d 914, 916

(2nd Cir. 1998). In the 1917 Immigration Act Congress

extended citizenship to some inhabitants of Puerto Rico, and

in the Nationality Act of 1940 (54 Stat. 1137, 1139) decreed

that Puerto Ricans born there after April 11, 1899 were

American citizens at birth; see 8 U.S.C. § 1402. The 1940

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 4 of 14
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act also defined the “outlying possessions” of the United

States, and defined the United States as the continental

United States, Alaska, Hawaii, Puerto Rico and the Virgin

islands. See Friend v. Reno, 172 F.3d 638 (9th Cir. 1999). 

In 1922 the Supreme Court held that an inhabitant

of the Philippines who was a “national” of the United States

must nonetheless be “naturalized” as a citizen before he

could settle and vote in the United States. Balzac v. Porto

Rico, 258 U.S. 298, 308, 42 S.Ct. 343, 347, 66 L.Ed. 627

(1922). Following the proclamation of Philippine

independence, on July 4, 1946, the Philippines were no

longer “outlying possessions” of the United States and

Filipinos were no longer United States “nationals.” Olegario

v. United States, 629 F.2d 204, 217 n.7 (2nd Cir. 1980); In

re Naturalization of 68 Filipino War Veterans, 40 F.Supp.

931 (N.D.Cal. 1975). 

From 1899 until 1946 there were literally millions

of United States “nationals” in America’s “outlying

possessions.” After Philippine independence in 1946, the

Organic Act of Guam in 1950 rendered Guamanians American

citizens as well. By the time the INA was passed in the

Summer of 1952, the concepts of “national” and “outlying

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 5 of 14
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possessions” were carried over from the 1940 Act but the

number of persons to whom these concepts applied was vastly

diminished. 

The point of this discursus is two-fold: first,

United States nationals who are not citizens are always

persons born or living in the insular possessions of the

United States, and second, one becomes a “national” only by

birth or by Congressional fiat relating to a territory. See

Miller v. Albright, 523 U.S. 420, 467 n.2, 118 S.Ct. 1428,

1453, 140 L.Ed.2d 575 (1998)(“The only remaining noncitizen

nationals today are residents of American Samoa and Swains

Island”); Hampton v. Mow Sun Wong, 426 U.S. 88, 90 n.1, 96

S.Ct. 1895, 1899 n.1, 48 L.Ed.2d 495 (1976) (same); Igartua

De La Rosa v. United States, 229 F.3d 80, 87 n.12 (1st Cir.

2000)(“The only persons currently holding such status are

residents of American Samoa and Swains Island”); United

States v. Ortiz-Marquez, 29 F.3d 636, 1994 WL 265920, *5 n.4

(9th Cir. Jun. 16, 1994), cert. denied, 513 U.S. 912, 11

S.Ct. 286, 130 L.Ed.2d 202 (1995). There is no application

process to become a national, nor does an alien’s subjective

intent have anything to with the matter. Becoming a

“national” is not some intermediate step antecedent to

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 6 of 14
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admission to citizenship. Title III of the Immigration &

Nationality Act, which prescribes in detail the statutory

requisites to becoming an American citizen, mentions

“nationals” only in describing who attains that status at

birth.

The Hughes court acknowledged that persons become

nationals “primarily through birth,” citing United States v.

Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997). See Oliver v.

U.S. Dept. of Justice, 517 F.2d 426, 428 (2nd Cir. 1975)

(“One can satisfy [INA] § 101(a)(22)(B) only at birth....”),

cert. denied, 423 U.S. 1056, 96 S.Ct. 789, 46 L.Ed.2d 646

(1976); Rabang v. INS, 35 F.3d 1449 (9th Cir.

1994)(“national” refers to noncitizen inhabitants of

territories). And, of course, to the extent that Hughes

stands for the proposition that an alien who applies for and

receives admission to American citizenship also becomes a

“national” of the United States, that holding is correct.

Conversely, as demonstrated above, if the Hughes decision

means that any alien can become a “national” merely by

subscribing and filing a naturalization application, that

conclusion has no support in the statutes nor the caselaw

and is unquestionably wrong.

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 7 of 14
3 The section says in full: 

(1) The Attorney General shall be

charged with the administration and

enforcement of this chapter and all other

laws relating to the immigration and

naturalization of aliens, except insofar as

this chapter or such laws relate to the

powers, functions, and duties conferred upon

the President, the Secretary of State, the

officers of the Department of State, or

diplomatic or consular officers: Provided,

however, That determination and ruling by the

Attorney General with respect to all

questions of law shall be controlling.

 8 U.S.C. § 1103(a)(1)(West 2002). 

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As set out above, the term “national” is defined

in the INA. The Attorney General is charged with

administering and interpreting the INA, and his

determinations are “controlling.” 8 U.S.C. § 1103(a)(1).3

The Attorney General, through his agents, has repeatedly

held that “nationals” are persons born in American Samoa or

Swain’s Island; Hampton v. Mow Sun Wong, supra, (“Apparently

the only persons other than citizens who owe permanent

allegiance to the United States are noncitizen

"nationals"....The Solicitor General has advised us that the

Commission construes the phrase as covering only natives of

American Samoa”)(internal citations omitted); Matter of

Tuitasi, 15 I.& N. Dec. 102, 103-04, Int. Dec. 2321, 1974 WL

30009 (BIA 1974)(holding that one does not acquire United

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 8 of 14
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States nationality merely by asserting an allegiance to the

United States and noting that “Congress has established

rigorous procedures which govern the acquisition of both

lawful permanent resident status and United States

citizenship for aliens. Nationality has attributes akin to

each of these....We cannot accept the respondent's unstated,

but underlying, assumption that Congress would permit an

alien to acquire United States nationality merely by

asserting an allegiance to the United States.”)

The Attorney General’s decision as to who is a 

“national” is entitled to considerable deference; INS v.

Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143

L.Ed.2d 590 (1999). In Aguirre-Aguirre, the Court recognized

immigration matters as particularly appropriate for judicial

deference because executive "officials exercise especially

sensitive political functions that implicate questions of

foreign relations." Id. at 425, 119 S.Ct. 1439. See Abdille

v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001)(“Our analysis,

of course, is constrained by the great deference we owe to

the INS in immigration matters,...”) 

Judge Schiller of this Court addressed an

analogous claim in Shittu v. Elwood, 204 F.Supp.2d 876, 2002

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 9 of 14
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WL 992036, *1 (E.D.Pa. May 14, 2002). Shittu was a Nigerian

who started trafficking in heroin shortly after his

admission to the United States. During the course of his

trafficking, Shittu applied for naturalization, presumably

as a preemptive measure. Following his conviction and

removal order, Shittu filed a habeas petition asserting that

the mere filing of the naturalization petition rendered him

a “national” of the United States and immune from

deportation. Judge Schiller denied the petition, holding

that "the existence of a single objective demonstration of

permanent allegiance, such as an application for

naturalization, is not conclusive if it is contradicted by

other evidence showing the applicant's lack of such

allegiance." Shittu, 204 F.Supp.2d at 880-81.

The government disagrees with Judge Schiller’s 

thoughtful analysis in Shittu, although obviously concurring

in the result. First, as argued above, no alien can acquire

status as a “national” except by birth in an “outlying

possession” of the United States. This is not only because

the Attorney General says so, but for a more fundamental

reason. 

In 1996 Congress devised a comprehensive scheme to

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 10 of 14
4 See DeSousa v. Reno, 190 F.3d 175, 185 (3d

Cir. 1999)(one of Congress' goals in passing

AEDPA was to enhance ability to deport

criminal aliens by eliminating waiver); Moore

v. Ashcroft, 251 F.3d 919, 925 (11th Cir.

2001)( one of Congress' goals in IIRIRA was

to expedite the removal of criminal aliens);

Lukowski v. INS, 279 F.3d 644, 647 (8th Cir.

2002)(same). 

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classify and deport aliens, particularly alien criminals.

See 8 U.S.C. § 1228(c)(aggravated felons are "conclusively

presumed" to be deportable). The 1996 amendments provided

“safety valves” for the convicted long-term permanent

resident to avoid expulsion, e.g. 8 U.S.C. § 1229b(a), 8

U.S.C. § 1182(h),4 but the law by no means was intended to

exempt long-term resident criminals from the consequences of

their crime. Indeed, in this respect Congress intended to

treat the permanent resident criminal even more stringently

than an illegal alien. Jankowski- Burczyk v. INS, 291 F.3d

172, 175-76 & n. 2 (2d Cir. 2002) (“[t]he upshot of the 1996

amendment, as interpreted by the BIA and as applied by the

INS, is that an LPR [lawful permanent resident] is

categorically ineligible for a form of relief that a non-LPR

would be eligible to seek, even if the two aliens committed

the same aggravated felony and even if the citizenship or

immigration status of their family members was identical").

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Moreover, as noted above, an alien convicted of an

aggravated felony is per se barred from establishing “good

moral character,” which is a statutory prerequisite for

admission to citizenship. See 8 U.S.C. § 1427(a)(3)

(requirement for naturalization is that alien be "person of

good moral character, attached to the principles of the

Constitution of the United States, and well disposed to the

good order and happiness of the United States.") 

It follows that if the alien is “conclusively

presumed” deportable, ineligible for a waiver, and

statutorily barred from citizenship, Congress certainly did

not intend for that same criminal alien to exempt himself

from deportation by the facile expedient of declaring his

“allegiance” to the United States, or by filing a

naturalization petition which, by law, cannot be approved.

To exempt the criminal alien from expulsion just because he

filed a petition would put the criminal alien in the same

place as the naturalized American. In Bradshaw’s case he

could have pursued his 1973 application for naturalization,

and absent a criminal conviction he would have been admitted

to citizenship. (One gets the sense from reading Bradshaw’s

papers that he filed an “intent” solely to satisfy his

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 12 of 14
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employers, with no intent to follow through.)

Naturalization, and only naturalization, would have removed

him from the ambit of “alienage” and the prospect of

deportation. But Bradshaw did not complete the process, and

there is nothing in the INA or the Fourteenth Amendment 

that conveys the rights of a citizen, including the right to

remain, upon an alien who merely applies for citizenship.

Cf. Lee v. Ashcroft, - F.Supp.2d -, 2002 WL 1585856, *1

(E.D.N.Y. Jul. 15, 2002)(declaring criminal alien a

“national” based on long-term residence and registration for

selective service). 

III. CONCLUSION

For the foregoing reasons Bradshaw’s claim to

“national” status should be denied.

Respectfully,

PATRICK L. MEEHAN

United States Attorney 

 

JAMES G. SHEEHAN

Assistant United States Attorney

Chief, Civil Division

________________________________

STEPHEN J. BRITT

Assistant United States Attorney

 

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 13 of 14
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Certificate of Service

I certify hereb y that on the 24th Day of September, 20 02, I pe rsona lly

served or caused to be served a copy of the attached Government’s Response To A

Supplemental Motion, addressed to:

Sydney Bradshaw A13 914 980

Berks County Prison 

1287 County Welfare Road 

 Leesport, PA 19533-9397 

 petitioner, 

by first class mail service upon petitioner.

______________________________________

STEPHEN J. BRITT

Assistant United States Attorney

Easte rn District of Pennsylvania

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106-4476

(215) 861-8443

(215) 861-8642 telecopier 

Case 2:02-cv-04268-CG Document 9 Filed 09/24/2002 Page 14 of 14