Status-Differentiated Access to Federal Habeas Relief for U.S. Citizens and Noncitizen Nationals Detained in American Samoa

This Note highlights a troubling gap in access to federal habeas relief for persons detained in American Samoa, the only United States territory that does not confer birthright citizenship on persons born there. There is no law affirmatively establishing that persons detained in American Samoa are entitled to seek federal habeas relief, regardless of citizenship status. However, there is a theoretical pathway for U.S. citizens detained in American Samoa to petition for federal habeas relief using a common law exception to the “immediate custodian rule” that requires habeas petitioners to name their local warden as respondent. This rule usually creates an insurmountable barrier to federal habeas relief because there is no federal court in American Samoa and no federal court can assert personal jurisdiction over a prison warden in American Samoa. The exception is explicitly available only to U.S. citizens detained outside the territorial jurisdiction of any federal court. The Secretary of the Interior has plenary authority over American Samoa. Therefore, as indicated by the U.S. District Court for the District of Hawaii in Barlow v. Sunia, a U.S. citizen detained in American Samoa could name the Secretary as respondent and petition for federal habeas relief in the District of D.C. 

Because this exception does not extend to noncitizen U.S. nationals detained in American Samoa, and the “noncitizen national” designation exists only in American Samoa, this population is uniquely precluded from accessing federal habeas relief, a privilege the Supreme Court has extended to extraterritorial noncitizen detainees in notable cases like Rasul v. Bush and Boumediene v. Bush, among others. 

There are myriad solutions available to correct differentiated access based solely on citizenship status. The simplest option would be for the federal courts to expand the Padilla exception to include noncitizen nationals. Alternatively, Congress could establish a federal court in American Samoa or expand an existing federal court’s jurisdiction to encompass claims arising out of the Territory. Unfortunately, there are also significant barriers to enacting those solutions. This is in large part because the federal government has unrestricted power over American Samoa, and the Territory’s small population and remote location make amassing sufficient political power to compel change unlikely.