Chapter 02 - General Provisions

Chapter 02 - General Provisions

41.0201 Purpose-Interpretation.

(a) The United States Congress has, when considering Organic Acts for American Samoa on several occasions, recognized the rights of the people of American Samoa to determine their political future, and in recognition of the present policy of the United States Government to develop American Samoa for American Samoans, and in furtherance of the provisions of the Constitution of American Samoa, Article I, Section 3, authorizing enactment of such legislation as may be necessary to protect the lands, customs, culture, and traditional American Samoan family organizations of persons of American Samoa ancestry, and to encourage business enterprises by American Samoans, the Legislature finds there are limited land resources, water, sewage facilities, and educational and economic opportunities in American Samoa. Therefore, with the increasing mobility of todays population, the only way to preserve the American Samoan culture and way of life and allow the people of American Samoa to determine their political and economic future is to restrict the entry of non-American Samoans into American Samoa. With this in mind, the Legislature has enacted this title and it must be so construed for the protection of the people of American Samoa, their lands, and their economic and political future.

(b) This title is to be interpreted and construed so as to effect its general purpose to limit entry into American Samoa to persons of American Samoa ancestry, their spouses and their children.

41.0202 Definitions.

(1) As used in this title unless the context requires otherwise:

(a) “Alien” means all persons who are not nationals or citizens of the United States of America. “Foreign” also means all persons who are not nationals or citizens of the United States of America, and may be used interchangeably with alien.

(b) “Attorney General” means the Attorney General of American Samoa or his designated representative.

(c) “American Samoan” means a person born:

(i) of American Samoan ancestry in American Samoa or in the United States; or

(ii) outside of American Samoa, but one of whose parents was born in American Samoa of Samoan ancestry and who has registered with the Board within 3 years of his eighteenth birthday, or the enactment of this section, whichever is later.

(d) “American Samoan ancestry” means lineal descendants of the inhabitants of Tutuila and Swains Islands whose permanent place of residence was American Samoa on 17 April 1900, and the inhabitants of Manu’a Islands whose permanent place of residence was American Samoa on 16 July 1904.

(e) “Board” means the Immigration Board of American Samoa.

(f) “Children” means legitimate or legitimated child, or stepchildren, or children adopted while under the age of 12 years or in relation to their mother illegitimate children provided the children are residing with their parents or stepparents.

(g) “Crewman” means a person serving in any capacity on Board a vessel or aircraft.

(h) “Immigration officer” means an employee of the immigration division of the government.

(i) “Minor” means a child or children of age 18 years or younger.

(j) “National of the United States” means either a citizen of the United States, or a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

(k) “Owner” means the agent, transportation line, master, commanding officer or consignee of a vessel or aircraft.

(l) “Parent” or “Stepparent” means a parent or stepparent only where the relationship exists by reason of any of the circumstances in (f) above.

(m) “Permanent resident” is a person who meets the eligibility criteria in chapter 04 of this title.

(n) “Post-secondary institution of higher learning” means an institution of post-high school instruction which certifies its graduates by conferring degrees or certificates. Such institutions are limited to, the presently existing local bible and church colleges which offer post-high school ministerial and/or pastoral training which culminates in the conferring of a degree or certification.

(o) “Spouse” does not include a spouse by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.

(p) “Permanent” means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of American Samoa or of the individual in accordance with law.

(q) “Person” means an individual, and includes a firm, partnership, joint venture or corporation where the context so requires.

(r) “Police officer” means a police officer of the government.

(s) “Residence” means a person’s principal actual place of abode, in fact, without regard to intent.

(t) “Tourist” means a person visiting American Samoa for the purposes of sightseeing, who intends to remain in American Samoa less than 30 days and who has a residence in the United States or a foreign country which he has no intention of abandoning, and who is visiting American Samoa temporarily for business or pleasure.

(2) For the purposes of this title, no person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was:

(a) a habitual drunk;

(b) a member of one or more of the classes of persons, whether excludable or not, described in 41.0615(9), (10), (11), (12), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period:

(c) one whose income is derived principally from illegal gambling activities;

(d) one who has been convicted of 2 or more gambling offenses committed during such period:

(e) one who has given false testimony for the purpose of obtaining any benefits under this title:

(f) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of 180 days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;

(g) one who at any time has been convicted of the crime of murder or rape.

The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.

(3) For the purposes of this title any person ordered deported (whether before or after the enactment of this title) who has left American Samoa, shall be considered to have been deported pursuant to law, irrespective of the source from which the expenses of his transportation was defrayed or of the place to which he was deported.

41.0203 Immigration Board-Creation-Members.

There is created the Immigration Board of American Samoa, consisting of 5 at-large members, who are nationals of the United States of American Samoan ancestry, appointed by the Governor with the consent and approval of the Legislature. The 5 at-large members shall serve for 5 year terms, but for no more than 2 consecutive terms: except the original appointees shall be appointed for terms of 1, 2, 3, 4 or 5 years. Members shall serve on the Board until a successor is approved. The Board members shall elect their own chairman annually.

41.0204 Meetings-Quorum-Vote.

The Board shall meet at times and places determined necessary by the chairman for conducting business of the Board. The presence of at least 3 members shall be necessary to constitute a quorum and a vote of the majority will be required to decide any issue. All members of the Board including the chairman shall be entitled to one vote.

41.0205 Powers and duties.

The Board may:

(1) hold hearings concerning the status or exclusion of any person other than American Samoans, their spouses and their children, seeking permission to enter or remain in American Samoa; the board shall create and maintain a record of all proceedings conducted before the board in order to preserve as complete a record as possible for review by the Administrative Law Judge in accordance with A.S.C.A., 4.0601;

(2) deport any alien after the alien has been accorded an opportunity for a public hearing;

(3) hold any other hearing as necessary for the enforcement of this title;

(4) investigate any matter pertaining to enforcement of this title, through a representative authorized by the Board;

(5) subpoena documents and witnesses, compel testimony and cite for contempt;

(6) examine the books, records and accounts of all employers in American Samoa concerning employment of aliens;

(7) make rules and regulations necessary for the enforcement of this title; such regulations shall include requirements as to deportability that;

(a) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;

(b) the alien shall have the privilege of being represented, at no expense to the government, by such attorney, who is authorized to practice before the High Court of American Samoa, as he shall choose;

(c) the alien shall have a reasonable opportunity to examine the evidence against him, to represent evidence in his own behalf, and to cross-examine witnesses presented by the Government; and

(d) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence; such decisions shall be in writing;

(8) subject to the exception in section 41.0306.1, make rules and regulations concerning the approval or disapproval of aliens to attend school or college, to secure a business license, or to be employed in the Territory;

(9) make available for public inspection all rules and written statements of policy, or interpretations formulated, adopted or used by the Board in discharge of its functions;

(10) make available for public inspection all final orders, decisions and opinions;

(11) delegate any of its administrative duties to the Attorney General or immigration officers of American Samoa;

(12) require the registration of all aliens residing in American Samoa and may photograph and fingerprint those aliens in order to issue identification cards on forms prescribed and prepared by the Board.

41.0206 Powers and duties of the Administrative Law Judge.

The Administrative Law Judge shall have the power to review all decisions of the Immigration Board pursuant to the provisions of this title, in accordance with A.S.C.A., 4.0601, and subject to the limitations thereto.

The Administrative Law Judge shall exercise all powers as prescribed in the Administrative Procedures Act and supplemented by those enumerated in the Administrative Law Judge Act in the discharge of its duties pursuant to this provision.

Nothing in this provision shall affect the powers prescribed to the board, the Attorney General or the Immigration Office as outlined in this Title.

41.0207 Powers and duties of the Attorney General.

The Attorney General shall be charged with the administrator and enforcement of this title and all other laws relating to the entrance, immigration, registration, and status of aliens, except insofar as this title or such laws relate to the powers, functions, and duties conferred upon the Board. Provided, however, that determination and ruling by the Attorney General with respect to all questions of law shall be controlling. He shall have control, direction, and supervision of all employees and of all the files and records of the immigration division and the Board. He shall establish such regulations, prescribe such forms of bond, reports, entries and other papers, issue such instructions, and perform such other acts as he deems necessary for carrying out his authority under the provisions of this title including prosecuting cases before the Board. He may delegate such duties as he deems necessary to perform or exercise any of the powers, privileges or duties conferred or imposed by this title or regulations issued thereunder upon any other employee of the Attorney General’s office and of the immigration division. He shall have the power and duty to control and guard the boundaries and borders of American Samoa against the illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the immigration division as to him shall appear necessary and proper in accordance with law.

41.0208 Burden of proof.

(a) Whenever any person makes application for any document required for entry or residence status or otherwise attempts to enter American Samoa, the burden of proof shall be upon that person to establish his eligibility to receive the document and that he is not subject to exclusion. If he fails to establish this to the satisfaction of the immigration officer at the port of entry, he may not be eligible to enter American Samoa.

(b) In deportation proceedings against any person, the burden of proof shall be upon that person to show the time, place and manner of entry into American Samoa, but in presenting that proof he shall be entitled to the production of any entry document or other documents and records, not considered to be confidential, pertaining to his entry and in the custody of the Attorney General.

(c) If the burden of proof is not sustained, the person is presumed to be in American Samoa in violation of the law.

41.0209 Review of detention proceedings.

(a) The Trial Division of the High Court of American Samoa may review in a habeas corpus proceeding any determination of the Attorney General concerning detention, release on bond, or parole, pending decision of the deportability.

(b) If the High Court finds that the Attorney General is not proceeding with such, reasonable dispatch as may be indicated by particular facts and circumstances to determine deportability, the Court may order the individual’s release on such terms and conditions as the court deems necessary.

41.0210 Petition for review.

A petition for review may be filed with the Appellate Division of the High Court not later than 15 days from the date of the final decision of the Board; the action shall be brought against the Board as respondent.

41.0211 Scope of review-Evidence.

(a) The Court may not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. In reviewing the Board’s interpretation of the evidence, its factual inferences, and its conclusions of law, the court shall give substantial weight to the Board’s experience, technical competence and specialized knowledge of immigration problems in American Samoa.

(b) The review shall be confined to the record; however, the Court in its sound discretion may receive evidence to supplement the record.

41.0212 Stay of deportation.

The filing of a petition under 41.0210 shall not stay the deportation of any person pending determination of the Court unless the court otherwise directs.

41.0213 Decisions by court.

The Court may reverse or modify the decision of the Board, or may remand the case for further proceedings, if substantial rights of the petitioner have been prejudiced because the decision of the Board is:

(1) in violation of applicable constitutional or statutory provisions;

(2) in excess of statutory authority of the agency;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;

(6) arbitrary, capricious or characterized by abuse of discretion.