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The Citizens Educational Foundation

June 9, 1999

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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