Obama: Citizenship not a fundamental right for Virgin Islanders

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ST. THOMAS - In a legal brief filed last week, the Obama administration took the position that citizenship is not a fundamental right of people born in unincorporated U.S. territories.

The federal government maintains that Congress has the legislative discretion to grant privileges to those born in the territories as they see fit.

The brief was filed in response to a lawsuit about citizenship rights for unincorporated territories that is pending before a federal appeals court.

The lawsuit is Tuaua v. United States, and it is about American Samoa's citizenship rights. While the situation in American Samoa is different than in the U.S. Virgin Islands, the outcome of the litigation could impact citizenship rights for Virgin Islands residents as well.

The United States took ownership of the Virgin Islands in 1917, and citizenship was granted through an act of Congress in 1927. Congress has not made the same decision for American Samoa and residents born there are considered "non-citizen nationals."

Neil Weare, lead counsel on the lawsuit, is president of We the People Project, an organization that works to achieve equal rights for residents of U.S. territories and the District of Columbia.

The federal government's response to the Tuaua lawsuit says the law clearly states that citizenship for outlying possessions of the United States gives people born to non-U.S. citizen parents the classification of nationals, but not citizens. Changing that status is up to Congress, U.S. Attorney Ronald Machen Jr. said.

"The responsibility of Congress to govern this nation's territories has long been recognized and respected by the Courts," Machen said in the brief.

The federal government references a Virgin Islands case in making its defense.

"In fact, the Third Circuit held in Ballentine v. United States, 486 F.3d 806, 813-14 [3rd Circuit 2007], that Congress was within its authority to determine that the U.S. Virgin Islands was unincorporated and therefore a person born there was not automatically a citizen who could vote in U.S. presidential elections," Machen said.

St. Thomas resident Krim Ballentine has filed multiple cases over the years about citizenship issues, challenging Congress' ability to confer citizenship on people born in the Virgin Islands. In 2007, a federal judge found that Ballentine, a U.S. citizen born in Missouri, lacked standing to bring that particular issue forward.

Weare said the Obama administration's arguments create two classes of American nationals - those with the protections of citizenship and those without.

"It's hard to believe that in the 21st century the Obama Administration is defending two separate classes of Americans," Weare said in a written statement.

In the Virgin Islands, people born in the territory are full U.S. citizens. While living in the Virgin Islands, residents have limited rights, such as not being able to vote for the president and not having a voting representative in Congress. However, when a Virgin Islander moves to one of the 50 states, all those rights are immediately restored.

Rather than citizenship for the territories being a constitutional right, a century-old legal precedent called the Insular Cases makes citizenship legislated by Congress.

The concern is that Congress has the power to turn citizenship for territorial residents on and off. However, if Congress did take away citizenship rights for those born in the U.S. Virgin Islands, it would not affect those already granted citizenship. It could only affect those born after such a decision might be made, according to legal precedent.

If the Tuaua case is won, Virgin Islanders could have a constitutional right to citizenship that cannot be given or taken away by Congress.

If the case is lost, nothing would change for Virgin Islanders.

The lawsuit currently is pending before the Washington, D.C., Circuit Court, a federal appeals court.

It previously was dismissed by a judge in the District Court. Weare expects arguments in the case to be heard later this year.

In May, V.I. Delegate to Congress Donna Christensen, former Gov. Charles Turnbull and other leaders from other U.S. territories filed an amicus brief supporting the Tuaua case.

For more information, go to www.equalrightsnow.org.

- Contact reporter Aldeth Lewin at 714-9111 or email alewin@dailynews.vi.

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