In re Navas-Acosta

• Decision Date: 29 April 2003
• Docket Number: File A37 766 153.,Interim Decision Number 3489
• Parties: In re Moises NAVAS-ACOSTA, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

23 I&N Dec. 586

In re Moises NAVAS-ACOSTA, Respondent

Interim Decision Number 3489

File A37 766 153 - San Diego

Board of Immigration Appeals.

Decided April 29, 2003.

(1) United States nationality cannot be acquired by taking an oath of allegiance pursuant to an application for naturalization, because birth and naturalization are the only means of acquiring United States nationality under the Immigration and Nationality Act.

(2) The respondent, who was born abroad and did not acquire United States nationality at birth, by naturalization, or by congressional action, failed to establish such nationality by declaring his allegiance to the United States in connection with an application for naturalization.

FOR RESPONDENT: David Landry, Esquire, San Diego, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Todd Keller, Assistant District Counsel

BEFORE: Board Panel: HOLMES, Acting Vice Chairman; FILPPU, and MOSCATO, Board Members.

FILPPU, Board Member:

The Immigration and Naturalization Service ("the Service," now the Department of Homeland Security, DHS) has filed a timely appeal from an Immigration Judge's decision dated December 9, 2002, terminating removal proceedings after finding that the Service had not established by clear and convincing evidence that the respondent is an alien. The Service's appeal will be sustained, and the record will be remanded for further proceedings.

Section 101(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(3) (2000), defines the term "alien" as "any person not a citizen or national of the United States." Only aliens are subject to removal. See section 240(a)(1) of the Act, 8 U.S.C. § 1229a(a)(1)(2000). The respondent contends that he qualifies as a national of the United States, as defined in section 101(a)(22)(B) of the Act, as a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

More specifically, the respondent contends that he submitted an application for naturalization in 1994 and was examined by the Service on January 12, 1996, in connection with his application. At that time, the record indicates that he signed a statement declaring his allegiance to the United States. The naturalization application was denied by the Service on August 22, 1996. The respondent, citing Hughes v. Ashcroft, 255 F.3d 752 (9th Cir. 2001), contends that by applying for naturalization and taking an oath of allegiance, he has attained the status of a "national" of the United States, as that term is defined in section 101(a)(22)(B) of the Act, thereby excluding him from the definition of an "alien." We disagree.

We first note that the decision in Hughes v. Ashcroft, supra, does not conclusively hold that an alien who applies for citizenship and takes an oath of allegiance attains the status of a United States national. In that case, the petitioner had not applied for citizenship, and the court found that he was not a national, because to qualify for that status, 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 (emphasis added). Because the petitioner in that case had not applied for citizenship, the court did not need to determine whether, by filing an application for citizenship and taking an oath, an alien could attain nationality. While the court implied that an alien could attain nationality by those means, a more recent decision of the United States Court of Appeals for the Ninth Circuit expressed its doubts concerning that implication. See United States v. United States District Court (In re United States), 316 F.3d 1071, 1073 (9th Cir. 2003) ("We doubt that one could become a national by merely taking such an oath....")

Historically, the term "national" of the United States has referred to a noncitizen inhabitant of United States territories, and the courts have suggested that a person attains that status primarily through birth. See Hughes v. Ashcroft, supra, at 756; United States v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997); Rabang v. INS, 35 F.3d 1449 (9th Cir. 1994); Oliver v. United States Dep't of Justice, INS, 517 F.2d 426 (2d Cir. 1975). Chapter 1 of Title III of the Act describes persons who become nationals and citizens of the United States at birth. Sections 301-309 of the Act, 8 U.S.C. §§ 1401-1409 (2000). This chapter includes section 308, which specifically describes the categories of persons who, at birth, become noncitizen nationals of the United States. Chapter 2, entitled Nationality Through Naturalization, provides a statutory framework for obtaining nationality through naturalization. Sections 310-347 of the Act, 8 U.S.C. § 1421-1458 (2000). The Act provides no other means for a person to become a national of the United States. If Congress had intended nationality to attach at some point before the naturalization process is complete, we believe it would have said so.

In Matter of Tuitasi, 15 I&N Dec. 102, 103 (BIA 1974), we held that the acquisition of nationality for a noncitizen national is governed by section 308 of the Act, rather than by the definitional provision at section 101(a)(22). As we understand the statute, whether one "owes permanent allegiance to the United States," is not simply a matter of individual choice. Section 101(a)(22)(B) of the Act. Instead, it reflects a legal relationship between an individual and...