Excerpts:
"There are two sources of citizenship: birth and naturalization. Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394-95 (5th Cir.2006). Nolos asserts that he derives United States citizenship from his parents, who he claims became United States citizens at birth because they were born in the Philippines when the country was a United States territory. We have not previously decided this question. However, the Second, Third and Ninth Circuits have held that birth in the Philippines at a time when the country was a territory of the United States does not constitute birth "in the United States" under the Citizenship Clause, and thus did not give rise to United States citizenship. Lacap v. INS, 138 F.3d 518, 518-19 (3d Cir.1998); Valmonte v. INS, 136 F.3d 914, 915-21 (2d Cir.1998); Rabang v. INS, 35 F.3d 1449, 1450-54 (9th Cir.1994).[2] The courts of appeals explained that the term "United States" as it is used in the Citizenship Clause of the Fourteenth Amendment did not, without more, include "United States territories simply because the territories [were] `subject to the jurisdiction' or `within the dominion' of the United States." Id. at 1453 & n. 8; see also Valmonte, 136 F.3d at 920. In reaching their holdings, the courts found guidance from the Supreme Court's Insular Cases jurisprudence on the territorial scope of the term "the United States" as used in the Citizenship Clause of the Fourteenth Amendment. Valmonte, 136 F.3d at 918-19; Rabang, 35 F.3d at 1452. The Insular Cases were a series of Supreme Court decisions that dealt with various challenges to duties on shipments from Puerto Rico to the United States mainland. Rabang, 35 F.3d at 1452; Valmonte, 136 F.3d at 918.
In Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901), one of the Insular Cases, "[t]he Court held that Puerto Rico was `not a part of the United States within the revenue clauses of the 283*283 Constitution.'" Id. at 287, 21 S.Ct. 770. The Court reached this conclusion by considering the territorial scope of the term "the United States" in various clauses of the Constitution. Valmonte, 136 F.3d at 918; Rabang, 35 F.3d at 1452-53 (citing Downes, 182 U.S. at 251). The Court compared the revenue clause language "all duties ... shall be uniform throughout the United States," United States Constitution, art. I, § 8, with the Thirteenth Amendment's prohibition of slavery and involuntary servitude "within the United States, or any place subject to their jurisdiction," id. amend. XIII, § 1 (emphasis added), and that of the Citizenship Clause of the Fourteenth Amendment providing that persons "born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," id. amend. XIV, § 1 (emphasis added). See Downes, 182 U.S. at 251 (cited in Rabang, 35 F.3d at 1452; Valmonte, 136 F.3d at 918). The Court then concluded that the disjunctive "or" in the Thirteenth Amendment showed that "there may be places within the jurisdiction of the United States that are no part of the Union" to which the Thirteenth Amendment would still apply, while citizenship under the Fourteenth Amendment "is not extended to persons born in any place `subject to [the United States'] jurisdiction'" (but instead limited to those born or naturalized in the states of the Union). Id. See Rabang, 35 F.3d at 1452-53 (discussing Downes, 182 U.S. at 251); Valmonte, 136 F.3d at 919 (discussing Downes, 182 U.S. at 251).
Relying on Downes, the Rabang and Valmonte courts observed that "[l]ike the revenue clauses, the Citizenship Clause has an express territorial limitation which prevents its extension to every place over which the government exercises its sovereignty." Rabang, 35 F.3d at 1453 (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 291 n. 11, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (Brennan, J., dissenting)); see also Valmonte, 136 F.3d at 918-19. The courts of appeals further noted the Court's subsequent statement that "`in dealing with foreign sovereignties, the term "United States" has a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal government, wherever located.'" Rabang, 35 F.3d at 1453 (quoting Downes, 182 U.S. at 263); Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263). They observed that "[i]n other words, as used in the Constitution, the term `United States' does not include all territories subject to the jurisdiction of the United States government." Rabang, 35 F.3d at 1453 (citing as see also Examining Bd. of Eng'rs, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 588 n. 19, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976)); Valmonte, 136 F.3d at 919 (citing Downes, 182 U.S. at 263).[3]
Against this background, the Rabang, Lacap and Valmonte courts held that "[i]t is ... incorrect to extend citizenship to 284*284 persons living in United States territories simply because the territories are `subject to the jurisdiction' or `within the dominion' of the United States, because those persons are not born `in the United States' within the meaning of the Fourteenth Amendment." Valmonte, 136 F.3d at 920 (citing Rabang, 35 F.3d at 1453); Rabang, 35 F.3d at 1453; Lacap, 138 F.3d at 519 (citing Rabang, 35 F.3d at 1454; Valmonte, 136 F.3d 914).[4]
Notwithstanding the Supreme Court authority starting with the Insular Cases and the persuasive precedent from three of our sister circuits, Nolos counters that Downes, as one of the central cases of Rabang, Valmonte and Lacap, should not be followed because it never defined the phrase "the United States" in the context of the Fourteenth Amendment. Relying on United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), he argues that the Fourteenth Amendment codified the principles of the English common law that birth within a sovereign's territory confers citizenship. On that basis, Nolos urges that his parents acquired United States citizenship at birth because the Philippines were under the dominion and control of the United States at the time of their births. But as have the Ninth and the Second Circuits before us, see Rabang, 35 F.3d at 1454; Valmonte, 136 F.3d at 920, we decline to give Wong Kim Ark such an expansive interpretation. As the Second Circuit explained, the question of the territorial scope of the Citizenship Clause of the Fourteenth Amendment was not before the Court in Wong Kim Ark:
The issue in Wong Kim Ark was whether a child born to alien parents in the United States was a citizen under the Fourteenth Amendment. That the child was born in San Francisco was undisputed and "it [was therefore] unnecessary to define `territory' rigorously or decide whether `territory' in its broader sense (i.e. outlying land subject to the jurisdiction of this country) meant `in the United States' under the Citizenship Clause."
Valmonte, 136 F.3d at 920 (brackets in original) (quoting Rabang, 35 F.3d at 1454).
Against this background, we find the reasoning of our sister circuits persuasive and hold that "persons born in the Philippines during its status as a United States territory were not `born ... in the United States' under the Fourteenth Amendment." Valmonte, 136 F.3d at 920 (quoting Rabang, 35 F.3d at 1453). Accordingly, given that Nolos's parents did not acquire United States citizenship by virtue of their birth in the Philippines when it was a United States territory, Nolos could not have derived United States citizenship from them and is therefore removable if he is found to have been convicted of an aggravated felony."
