Undoing a false sense of security: Micronesians and US immigration

Pacific Reflections By Gabriel McCoard

 The president’s recent announcements pulling the only U.S. aircraft carrier in the Pacific to the Middle East and cutting back joint U.S.-South Korean military exercises reminded me that we cannot take anything for granted.

I haven’t yet been able to digest the latest churn in the Pacific security-and-influence soap opera, so instead I thought of some people I haven’t heard from in a while and whether they inadvertently took something for granted.

Maybe they were lulled into a false sense of security drilled into them by post-World War II complacency, when institutions became a proxy for the law.

They were lawful permanent residents, acquaintances I’ve made over the years, who decided not to apply for U.S. citizenship. One ran a non-profit, another was a professor and yet another owned a business.

I’m sure they had their reasons for not applying for citizenship, or so they must have thought at the time. It cost money, there were too many bureaucratic hassles, they didn’t want to take the exam. Maybe they didn’t want to register to vote only to get sucked into the bane of civic engagement called jury duty. But at the time it was reasonable to believe that lawful permanent residency gave you just about everything that citizenship did.

Sure, being a citizen gives greater priority if you sponsor relatives to come over, but the downside was minimal, and so long as you don’t do anything stupid, the differences were hardly noticeable.

Then something changed. People from many walks of life are finding that what they thought were protections guaranteed by law were simply established practices by government agencies.

It turns out that nothing prevented the man in charge from changing the practice, whether it was canceling government grants that give the president discretion over whether to disburse money, or using the federal government to push a partisan, or even personal, agenda. 

Take the U.S. immigration courts.

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Immigration courts are not courts but agencies under presidential control. The official term is a quasi-judicial panel that adjudicates certain immigration matters. The purpose is not to apply the law impartially but to apply the president’s immigration policy.

To assert your rights seriously, you need to be in federal court. A non-citizen can be deported.

I estimate that every 20 or 30 years, give or take, immigration explodes into a political bomb. We’re in such a moment now, and we can feel the blasts in our region.

Shortly after taking office last year, President Donald Trump issued Executive Order 14160 declaring that children born in the U.S. whose parents were in the country illegally or temporarily were not “subject to the jurisdiction” of the U.S. and thus not entitled to citizenship under the 14th Amendment. The U.S. Supreme Court, in Trump v. Barbara, disagreed.

Very briefly put, being present in the U.S., even briefly or illegally, is enough to make that child a citizen. This is a long-standing rule known as jus soli, or right of the soil, rather than jus sanguinis, or right of blood, which bases citizenship on ancestry.

In other words, the child’s presence at birth brings about the child’s allegiance to the nation that protected it at birth, thus subjecting the child to U.S. jurisdiction, even if it doesn’t feel protective.

But what about a child born to parents illegally or temporarily in a U.S. territory? The Insular Cases are still active law, and, with them, the governance of territories, including citizenship of those born there, is subject to Congress.

I try not to read too much into random bills introduced in the House, but we ignore political discontent at our own peril. There are recent grumblings that Congress should restrict citizenship to people born in Guam or the Marianas, with at least one such bill introduced in the House of Representatives, H.R. 9724. GovTrack.us gives it a 2% chance of being heard.

A pregnant Chinese woman planning to give birth in Guam or Saipan would face greater difficulty than a Marshallese fleeing an economic dead zone.

Maritime separation makes visa overstays more likely than an illicit crossing in the dead of night, but stranger things have happened. Islands are a vastly different scenario than the border with Mexico.

As it is, compact nations follow jus sanguinis; if your ancestors were not Micronesian, neither are you. They’re not alone. Many nations throughout the world do that. 

Only recently has the FSM, for instance, permitted dual citizenship. As it is, with liberal travel and employment under the compacts, Micronesians haven’t had much to worry about. They can’t vote, but unless they commit a classic crime of moral turpitude, they can stay indefinitely without fear of letting something lapse.

Perhaps paradoxically, COFA citizens could see greater rights in the U.S. than those born in a territory. Jus sanguinis in a geopolitical soap opera could become the law of the land. And for this, citizens of the freely associated states have much to be grateful for.

Gabriel McCoard is an attorney who previously worked in Palau and Chuuk State. Send feedback to gabrieljmccoard@hotmail.com.

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