Interim Decision #2388 

MATTER OF AH SAN 

In' Exclusion Proceedings 

A-20968308 

Decided by Immigration Judge January 31, 1975 

Affirmed (with qualification) by Board May 13, 1975 

The applicant for admission is a native and citizen of Western Samoa. She•s the child of a 

non citizen national born in American Samoa. She seeks admission as the daughter of an 

alien lawfully admitted for permanent residence as the beneficiary of a second preference visa petition filed under section 203(a)(2) of the Immigration and Nationality Act. 

Applicant's mother never resided in the United States, having only visited the United 

States for three weeks. However, as a national of the United States, she need not have 

resided in the United States to have,at least the rights of an alien lawfully admitted for 

permanent residence. A national of the United States does not lose.such status unless he 

does so by voluntary relinquishnient of Congress changes such status by legislation. The 

immigration judge's order admitting the applicant for permanent residence is approved. 

EXCLUDABLE: Act of 1952—Section 212(a)(20) U.S.C. 1182(x)(20))---Immigrant—no 

valid immigrant visa. 

ON BEHALF OF SERVICE: RobereT. Griffin, Esquire, 

Thal Attorney 

Los Angeles, California 

BEFORE THE IMMIGRATION JUDGE 

(January 31, 1975) 

The applicant herein is a single female alien 14 years of age, a native 

and citizen of Western Samoa. The applicant arrived in the United 

States on September 3, 1974, at Honolulu, Hawaii and at that time 

presented an immigrant visa and a Western Samoan passport. The 

immigrant visa which is Exhibit No. 3 in evidence discloses that it was 

issued to the applicant on the basis of her having a second preference. 

Attached to the visa is a visa petition which was filed by the applicant's 

mother in her behalf and which was approved by the district director at 

Honolulu, Hawaii On June 23, 1974, granting to the applicant preference 

quota status under Section 203(a)(2) of the Immigration and Nationality 

Act. The petition discloses that the applicant's mother is a national of 

the United States by reason of birth at Malaeloa, American Samoa on 

March 8, 1941. The Immigration Service presents the Issue that since 

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the mother Las not resided in the United States the applicant is not 

entitled to a second preference. 

The applicant testified that her mother has always resided in American Samoa except for a visit which she made to the United States in 

1974, for three weeks, when she stayed at San Francisco, California and 

then returned to American Samoa. She testified that this was the only 

time that her mother has been in the continental United States. There is 

no issue concerning the maintenance of the applicant. Although she is 

only 14 years. of age the applicant will be in the custody of Reverend 

Allan E. Williams, the father of a cousin of the applicant, and assurances 

have been given by Reverend Williams that the applicant will be taken 

care of in the United States. The only issue presented is the legal issue 

concerning the rights of a national of the United States in 'conferring 

preferences on the basis of their being considered to be permanent 

residents of the United States. • . 

There is little byway of legal authority with respect to the rights of 

nationals of the United States. The only case -which has any analogy to 

the facts in the instant easels Matter of B—, 6 I. & N. Dec. 555 where 

the Board of mmigration Appeals considered the legal rights possessed 

by nationals of the -United States with respect to filing petitions .for 

relatives. The, Board there stated as follows at page 556 "Section 203-

(a)(3) provides a preference for children of aliens lawfully admitted for 

permanent residence. The term "lawfully admitted for permanent residence" is defined in Section 101(a)(20) as the status of having been 

accorded the privilege of residing in the United States as an immigrant. 

The petitioner is a national in possession of a United States passport and 

thus appears to have been lawfully accorded the privilege of residing 

permanently in the United States. She will be regarded as elegible to 

file a petition for a preference under Section 203(a)(3) and the visa 

petition will be approved for third preference status for the minor 

beneficiary." This decision would appear to hold that a national of the 

United States may be considered to have the rights of a permanent 

resident of the United States. I.would, however,, state this even more 

broadly. A national of the United States does not have the rights of a 

citizen of the United States. However, as ,a national he is accorded 

certain rights and privileges by reason of being a national which should 

be at least equal to those of an alien who has been admitted to the 

United States. for permanent residence. In fact, the rights will be even 

larger than those of an alien who has been admitted for permanent 

residence because a national would not have. to comply with the requirements al the definition of a permanent resident as contained in 

Section 101(a)(20) of the Immigration and Nationality Act, nor would 

any strictures which may be contained in Section 212(a)(20) of the Act 

apply. IL is noted that,in the report of the Committee on the Judiciary 

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pursuant to Senate Resolution 137, dated April 20, 1950, it was stated at 

pages 663 and 664 of the report with respect to natives of Guam and 

American Samoa "Most of the native inhabitants of these possessions 

are nationals of the United States and as such they are not subject to the 

exclusion provisions of our immigration laws." (Report No. 1515). 

This is similarly stated in Gordon and Rosenfeld – Immigration Law 

and Procedure in Section 2.8(c) "But there are still some persons who 

are noncitizen nationals. As such they are not aliens and consequently 

have never been subject to the immigration laws. They can enter and 

leave the United States at will, in the same manner as citizens." See also 

Section 4.5(c) of the same volume. 

The decisions of the Board of Immigration Appeals as they have been 

rendered with respect to nationals of the United States and particularly 

with respect to natives of American Samoa are not too clear insofar as 

the issue in the present case is concerned. Those decisions are as 

follows: Matter of S—,3 L & N. Dee. 589; Matter of B—,3 I. & N. Dec. 

729; Matter of A—,5 I. & N. Dec. 144; Matter of T—,5 I. & N. Dec. 380. 

The only recent reported decision by the Board of Immigration Appeals 

relating to American Samoa is in Matter of Tuitasi rendered on September 26, 1674. This decision has been scheduled for publication. 

As I have stated the published decisions are not too helpful in determining the rights of nationals of the United States. I consider that a 

national while he does not have the rights of a citizen of the United 

States has at least the rights of a permanent resident of the United 

States, and that he has these rights regardless of whether he complies 

with the usual requirements relating to permanent residence. In other 

words, I do not believe that a national of the United States can ever 

forfeit his right to enter the United States or to be considered as a 

permanent resident of the United States unless he voluntarily renounces 

his allegiance to the United States as a national of the United States. So 

long as he retains his status as a national of the United States he should be 

considered to have the rights of a lawful p ermanent resident of the United 

States. It would, therefore not be necessary that he comply with such 

matters as maintaining a residence in the United States or having 

intention of returning to the United States or in connection with the filing 

of a visa petition that he establish that he is a resident of the United 

States. Apparently the theory of the Government is that the preference 

prescribed by Section 203(a) of the Immigration and Nationality Act as 

also in connection with the status as an immediate relative of the. nited 

States under Section 201(b) of the Act was enacted by Congress for the 

purpose of combining families and that it is to be used in that fashion. 

Actually neither the Act nor the Regulations require that it be established that the beneficiary is accompanying or coming to join a permanent 

resident of the United States. I do not believe that that is one of the 

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requirements in connection with preferences or immediate relative 

status, but even if it were to be taken to be so, I do not consider that it is 

applicable where a national of the United States is involved. The national 

is residing in a territory of the United States, being American Samoa, and 

I see no reason why he should have to establish that he is residing within 

the geographical United States for the purpose of conferring preference 

upon a child. 

will resolve the legal issue in this case in favor of the applicant. The 

Immigration Service has, however, requested that because of the importance of the issue involved herein and for the purpose of getting a 

specific adjudication of the question that I certify this case to the Board 

of Immigration Appeals. I will do so. 

ORDER: It is ordered that the applicant be admitted to the United 

States for permanent residence. 

IT- IS FURTHER ORDERED that this case be certified to the Board 

of Immigration Appeals for final decision. 

BEFORE THE BOARD 

(May 13, 1975) 

In a decision dated January 31, 1975, the immigration judge ordered 

the alien applicant admitted to the United States for permanent residence, and he certified his decision to us at the request of the Service 

because of the importance of the issue involved. 

Our review of the record satisfies us that the decision of the immigration judge correctly sets forth the facts and properly applies the pertinent legal principles. We agree with his conclusion that Matter of B—, 6 

I. Si N. Dec. 555 (BIA 1955), stands for the proposition that, although a 

noncitizen national of the United States does not have the rights of a 

citizen, he or she is accorded certain rights and privileges by reason of 

being a national which are at least equal to those of an alien who has 

been lawfully admitted to the United States for permanent residence. 

We also concur in his observation that the rights of a noncitizen national 

are greater than those of a lawful permanent resident because a noncitizen national is not subject to the definition of "lawfully admitted for 

permanent residence" contained in section 101(a)(20) of the Immigration 

and Nationality Act, nor is a national subject to the exclusion and 

deportation provisions of the Act. • 

We do note; however, that the immigration judge's statement that he 

does not believe "that a national of the United States can ever forfeit his 

right to enter the United States or to be considered as a permanent 

resident of the United States unless he voluntarily relinquishes his 

allegiance to the United States as a national of the United States," 

should be qualified with the observation that Congress can undoubtedly 

deprive a noneitizen national of his status by legislation without regard 

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to voluntariness on the noncitizen national's part. Rabang v. Boyd, 353 

U.S. 427 (1957); Manlangit v. INS, 488 F.2d 1073 (C.A. 4, 1973). 

We shall affirm the decision of the immigration judge with the foregoing qualification. 

ORDER: The immigration judge's decision is affirmed. 

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