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UNDERSTANDING CITIZENSHIP ISSUES
The Citizens Educational Foundation
June 9, 1999
Copyright © 1999 THE CITIZENS EDUCATIONAL FOUNDATION
Persons born in Puerto Rico acquire U.S. citizenship under
8 U.S.C. 1402, which is part of the U.S. Immigration and Nationality
Act. This is statutory citizenship rather than citizenship arising
from birth or naturalization in a state of the union under the
14th Amendment of the U.S. Constitution. The fact that one or
both parents of a person born in Puerto Rico may have been born
in a state is not controlling. This is because the citizenship
of persons born in Puerto Rico arises from the place of birth
rather than relationship to U.S. citizen parents.
As a practical matter, there is little danger that persons
already born in Puerto Rico will have their U.S. citizenship revoked.
Even though it is not 14th Amendment citizenship, once granted,
U.S. citizenship is protected by the U.S. Constitution from being
taken away arbitrarily. Congress can not take away citizenship
previously granted to Puerto Ricans in a way that would be discriminatory
or without any legitimate purpose. For example, if Puerto Rico
becomes an independent nation, Congress could end U.S. citizenship
for Puerto Ricans; but, even in that event, those who already
have U.S. citizenship would probably be able to make a choice
between U.S. and Puerto Rican citizenship. Those who wanted to
keep U.S. citizenship most likely could do so.
The more fundamental problem is that there is no constitutional
guaranty that U.S. citizenship will continue to be granted by
Congress. The U.S. Constitution does not protect citizenship for
Puerto Rico in the future. While it is the policy of Congress
to continue to grant U.S. citizenship in the future, Congress
does not have the power to bind a future Congress to that policy
by statute. A future Congress can always change that policy, and
might do so if, for example, Congress ever recognizes Puerto Rico
as a separate nation with its own national citizenship as proposed
by the commonwealth party. Even while U.S. administration continues,
based on recognition of Puerto Rico as a nation in the legal and
political sense, Congress could return to a policy similar to
the practice before U.S. citizenship was granted in 1917 by ending
conferral of U.S. citizenship for persons born in Puerto Rico.
The only way to secure constitutionally guaranteed U.S. citizenship
for the future as in the states is through statehood. That is
one factor that U.S. citizens in Puerto Rico should take into
consideration in deciding which ultimate political status will
be best for Puerto Rico. No one is predicting a sudden revocation
of U.S. citizenship for Puerto Rico, but history teaches that
permissive rights are no substitute for constitutionally guaranteed
rights.
As for seeking naturalization to achieve constitutional citizenship,
this has been attempted and so far the INS and federal courts
seem to have the view that naturalization of persons who already
have been granted U.S. citizenship by statute is a frivolous or
"hollow act". Since there is no injury in the legal
sense until if and when Congress actually acts to end conferral
of U.S. citizenship, the INS and the courts seem reluctant to
provide a remedy simply because there is the possibility that
Congress will abridge citizenship for Puerto Rico in the future.
However, if and when Congress does legislate to alter citizenship
for Puerto Rico, then the courts will have to hear cases arising
therefrom, as was the case when U.S. nationality was ended for
the Philippines. Even though the Commonwealth of the Philippine
Islands had U.S. nationality but not U.S. citizenship, the legal
issue of whether individuals can retain constitutional rights
after Congress decides to alter statutory rights is very similar
if not the same.
In the case of the Philippines, the U.S. Supreme Court upheld
the act of Congress extinguishing statutory rights; and there
is no reason of which the Foundation is aware why statutory citizenship
rights which are within the scope of statutory nationality would
not also be subject to alteration or termination by Congress.
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