INS issues final rule on rights of "habitual residents" of U.S. territories and possessions; lists circumstances in which they may be removed
Immigrants' Rights Update, Vol. 14, No. 6, October 19, 2000

The Immigration and Naturalization Service has issued a final rule defining the rights of "habitual residents" in the territories and possessions of the United States under the Compacts of Free Association between the U.S. and the governments of the Republic of the Marshall Islands, the Federated States of Micronesia, and Palau.  These treaties provide that citizens of these countries (formerly parts of the Trust Territories of the Pacific Islands and now collectively referred to as the "freely associated states" or "FAS") have the right to establish "habitual residence" in U.S. territories or possessions.

The final rule concerns only FAS citizens who have established habitual residence under section 141(a) of the Compacts in Guam, the Commonwealth of Puerto Rico, or the American Virgin Islands, and the territory most affected by the rule is Guam.  The rule does not concern the right of FAS citizens to enter the U.S. as nonimmigrants under the Compacts, nor other rights they have under the Compacts or other laws.  The rule is significant because it defines circumstances in which FAS citizens who have established "habitual residence" in a territory may be removed, including for lack of employment, poverty, or fraudulent receipt of public benefits.

Under the rule, a "habitual resident" is defined as an FAS citizen who (1) has been admitted to a territory or possession of the U.S. pursuant to section 141(a) of the Compacts; (2) occupies a dwelling place of a continuing or lasting nature, and has been physically present in the territory for a cumulative period of at least 365 days; and (3) is not a full-time student or a dependent of a resident representative under the Compacts.  A "dependent" of a habitual resident is defined as the parent, spouse, or unmarried child of a principal habitual resident, or the parent or child of the spouse of a principal habitual resident, who resides with and relies on the principal habitual resident for financial support.

The rule notes that FAS citizens are given I-94 forms (Arrival-Departure Record) upon their admission to a U.S. territory and upon departure from it they are required to return this form.  Under the rule there is a rebuttable presumption that an arriving FAS citizen is a habitual resident if the individual was admitted to the territory more than one year ago and either failed to turn in his or her Form I-94 or to apply for a replacement Form I-94.

Under the rule, a principal habitual resident is subject to removal if he or she is not and has not been "self-supporting" for a period longer than 60 consecutive days, for reasons other than a lawful strike or labor dispute.  Such persons are considered "self-supporting" if they are either (1) gainfully employed for at least 40 hours per week (part-time students attending an accredited college or institution of higher learning receive a three-hour credit toward the 40-hour requirement for each credit-hour of study) or (2) being supported with lawfully derived funds that meet or exceed 100 percent of federal poverty guidelines as determined by the Department of Health and Human Services for the state of Hawaii.  Principal habitual residents may also be removed if they have obtained unauthorized public benefits by fraud or willful misrepresentation or for any of the grounds of deportability listed in section 237 of the Immigration and Nationality Act.

If the principal habitual resident becomes subject to removal, his or her dependents also become subject unless they establish that they have become self-supporting or dependents of another principal habitual resident.  Dependents also may be removed if they receive unauthorized public benefits by fraud or willful misrepresentation or for any of the INA grounds of deportability.

The final rule took effect on Sept. 19, 2000.

65 Fed. Reg. 56,463-66 (Sept. 19, 2000).