Summerfield v. U.S. I.N.S.
Decision Date | 19 September 1994 |
Docket Number | No. 91-70424,91-70424 |
Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Merlita Pascua SUMMERFIELD, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
Before: TANG, PREGERSON, and ALARCON, Circuit Judges.
Merlita Pascua Summerfield petitions for review of a Board of Immigration Appeals decision upholding an order of deportation issued by an immigration judge. Summerfield contends that she is not subject to deportation because she is a United States citizen or national by virtue of her birth in the Philippines during the time that country was a United States territory. We deny the petition.
Summerfield, who was born in the Philippines in 1938, was a United States national at birth. See Philippine Government Act, ch. 1369, 32 Stat. 691, 692 (1902) ( ); Rabang v. Boyd, 353 U.S. 427, 429 (1957). However, under the Philippine Independence Act of 1934, ch. 84, 48 Stat. 456 (1934), which provided for the adoption of a constitution and the withdrawal of the United States ten years afterward, citizens of the Philippine Islands lost their status as United States nationals and were considered "aliens" under the immigration laws as of July 4, 1946. Summerfield raises a number of constitutional challenges to the Philippine Independence Act and its application to her.
Summerfield first contends that because there is no constitutional provision for "national" status, she became a United States citizen at birth. While Summerfield did not specifically argue that she was a citizen under the Citizenship Clause of the Fourteenth Amendment, 1 we hold in Rabang v. INS, --- F.3d ---- (9th Cir.1994), that persons born in the Philippine Islands during the territorial period were not born "in the United States" under the Fourteenth Amendment.
Second, Summerfield challenges Congress' power to divest Philippine-born individuals of their United States nationality. However, it is well-settled that Congress is empowered "to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country." Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quotation omitted). The creation of "national" status and the subsequent designation of Philippine citizens as "aliens" under the immigration laws is within Congress' power to legislate regarding the territories, see U.S. Const. art. IV, Sec. 3 ( ), and within the "plenary congressional power to make policies and rules for the exclusion of aliens." Kleindienst, 408 U.S. at 769. See also, Rabang, 353 U.S. at 432-33 ().
Summerfield next contends that she was divested of her United States nationality without procedural due process. She claims that she was entitled to an "order to show cause" specifying the grounds for the revocation of her United States nationality and proof that she had consented to that revocation (e.g. through voting to renounce her American nationality or enlisting in a foreign army against the United States in war). However, we have previously held that national status can be taken away by Congress without consent. See Manguerra v. INS, 390 F.2d 358, 360 (9th Cir.1968). Individual notice of loss of national status was not required: Cabebe v. Acheson, 183 F.2d 795, 801 (9th Cir.1950). See also INS v. Pangilinan, 486 U.S. 875, 885 (1988) (...
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