U.S. citizenship cannot be guaranteed for Puerto Ricans under any political status except statehood. But what about the children and grandchildren of current U.S. citizens from Puerto Rico? Could we expect to pass along U.S. citizenship to our descendents?
U.S. citizenship for Puerto Rico
The U.S. Code, Chapter 12: Immigration and Nationality explains the current law on citizenship for people born in the territory of Puerto Rico:
“All persons born in Puerto Rico on or after April 11, 1899, and prior to January 13, 1941, subject to the jurisdiction of the United States, residing on January 13, 1941, in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are declared to be citizens of the United States as of January 13, 1941. All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth.”
This law, still in effect in 2022, applies to two groups of people:
- people born in Puerto Rico between 1899 and 1941 who were living in a U.S. territory on January 13, 1941
- people born in Puerto Rico after 1941, if they are also “subject to the jurisdiction of the United States”
The first group includes people in their 80s and 90s who were born in Puerto Rico and living there in 1941. The second group includes most people now living who were born in Puerto Rico, as long as they are currently subject to the jurisdiction of the United States, as well as people born in Puerto Rico in the future, as long as they are under the jurisdiction of the United States.
This says quite specifically that people born in a new nation of Puerto Rico, who will not be under the jurisdiction of the United States at all, will not be citizens of the United States at birth.
The Puerto Rico Status Act
The Puerto Rico Status Act respects this, specifying that being born in Puerto Rico will no longer provide birthright U.S. citizenship after independence. However, it also claims that an Associated Republic of Puerto Rico would have a different set of rules during the first term of its Articles of Free Association.
“Birth in Puerto Rico shall cease to be a basis for United States nationality or citizenship. Individuals born in Puerto Rico to parents both of whom are United States citizens shall be United States citizens at birth, consistent with the immigration laws of the United States, for the duration of the first agreement of the Articles of Free Association.”
Under current law, a child born abroad to a U.S. citizen can generally be a citizen of the United States. Only one U.S. parent is required. It is not necessary for both parents to be U.S. citizens.
However, it also includes residence requirements. There are some variations of the law for different circumstances, but generally at least one of the parents must have lived in the United States for five years before the birth of the child. This is not required by The Puerto Rico Status Act.
Separate but equal?
Carmen Yulin Cruz, among others, has objected to the fact that The Puerto Rico Status Act specifies different rules for the descendants of Puerto Ricans than for other U.S. citizens. She wants to see the same rules for Puerto Rican citizens of the United States as for people born in states.
A woman born in Florida who has a baby in a new Republic of Puerto Rico could be confident that her child would be a citizen of the United States. However, a woman born in the territory of Puerto Rico having a baby in an Associated Republic of Puerto Rico would not have that assurance. The child’s father would also have to be a U.S. citizen.
What Yulin Cruz might not have realized is that if the current U.S. citizenship laws apply equally to citizens from a new nation of Puerto Rico, they would no longer be living in the United States. If our hypothetical Puerto Rican woman had never lived in a state, she would not be eligible to pass along her U.S. citizenship because she would not fulfill the residence requirement once Puerto Rico was no longer a territory of the United States.
The difference in requirements to pass on citizenship may seem arbitrary, but it might make it possible for citizens of a new nation of Puerto Rico to hold onto U.S. citizenship over the long term. That is, if the U.S. Congress accepts the prospect of having millions of U.S. citizens who owe loyalty to a foreign country.
A vote against statehood will probably be a vote against U.S. citizenship.
-STATUTORY US CITIZENSHIP is UN-PERMANENT-
SUM: According to legal experts: Types-Sources-Basis of US Citizenship are:
• Birthright Citizenship-“jus soli” (right of soil)—born in the US-in a State-per the 14th Amendment… (unquestioned permanent US Citizenship)
• Naturalization Citizenship—process through which immigrants from other countries can also become citizens if they wish to … (per 14th Amendment) (unquestioned permanent US Citizenship)
• Acquired Citizenship– acquiring citizenship from US Citizen parents; by descent from a State’s national (jus sanguinis)… (per 8 USC Code, per US Congress) PLUS-
• Statutory US Citizenship-per the US Territorial Clause (1789); Insular Cases (1901-1925+); Jones Act (1917); 8 USC Code §1402 (which can be amended or revoked)–ALL end upon Independence–*Allows for the US Congress to Legislate a non-permanent statutory US Citizenship…
*The source for statutory US Citizenship is the Territorial Clause, and the racist Insular Cases–that wrongly state the US Constitution does not fully apply to so called “unincorporated” US Territories such as Puerto Rico (which is “more foreign than domestic, belongs to, but, is not part of the US–Soil”)…
*Remember Puerto Rico is incongruently in “Legal Limbo” as “unincorporated”, it belongs to the US, but, it’s not part of the US or another Country…!
*The Territorial Clause and the “Insular Cases” allow the US Constitution to incongruently not be fully applied (including the Due Process Clause) to Puerto Rico…
*8 USC Code §1402-is only for Persons born in Puerto Rico (doesn’t mention “birthright” Citizenship…); can be amended; is non-permanent; and will not apply upon Independence…
*The US Congress can amend or revoke any Laws-Codes it makes… IAW the US Constitution… that will cease to apply to a US Territory if it becomes an Independent Nation (with or without a Pact of Free Association)… Thus, a Group issued statutory US Citizenship, based on the Territorial Clause, can end upon Independence.
Statutory US Citizenship is mainly governed by the old US Constitution’s Territory Clause (1787) that states: “US Congress shall have the power to dispose of and make all needful rules and regulations respecting the Territory and other Property belonging to the US…” And the “Insular Cases” (1901-1925 + based on racism and discrimination) that state (not in the US Constitution)—“Puerto Rico is an “unincorporated” US Territory that is more foreign than domestic, belongs to, but, is not part of the United States”. (Other US Territories before Puerto Rico were NOT treated this way.)
Statutory US Citizenship isn’t fully protected by the US Constitution’s 14th Amendment (1868), according to some US Supreme Court decisions. It states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside…” The Amendment does not mention “unincorporated” US Territories which incongruently are not considered part or soil of the US…
The legal meaning of statutory US Citizenship is a confusing and complex issue! But, there is no precedence or settled law or Constitutional Article, Law or Supreme Court Decision that mentions statutory US Citizens have a permanent US Citizenship… or that it can be “for life with benefits…”
On the contrary, below are some US Supreme Court Decisions, Presidential and Congressional Reports; a US Attorney General, Federal Judges and Others that content or imply the US Constitution does not fully apply to statutory US Citizens or an “unincorporated” US Territory (which technically/legally is not US soil). You can’t have it both ways– its illogical and nonsensical to say statutory US Citizenship is not permanent and then turn around and say you can keep it for Life (with benefits) under Independence…
Thus, today, millions of statutory US Citizens, can be “born” US Citizens, but, don’t have a permanent “birthright” US Citizenship (which is not mentioned in the 8th US Code for statutory US Citizens…), no matter where they reside (even in a State), because the US Congress can amend or revoke any Law or Code that a previous US Congress enacted… Also, the US Constitution’s Article 5th and Amendment 14th don’t mention suffrage (Voting Rights) for “unincorporated” Territories, but, it fully applies only to STATES…
Besides, once, there is Independence, a Nation has its own Sovereignty and Citizenship, after which (not before) it can enter into a Pact (like Free Association) between sovereign Nations… Thus, US Laws (like the Territorial Clause, Insular Cases, &1917-Jones Act which granted a statutory US Citizenship to Puerto Ricans), will cease to be in effect, and subject to no negotiation… Remember, in our US Constitution there is no mention of “Group Dual Citizenship” in a Foreign Country…
A Nation can’t be Sovereign with the Citizenship of another Nation! Where would the National Loyalty lie? The US Congress doesn’t have the power to grant National US Citizenship to an Independent Nation or provide US Citizens with Federal benefits in another Country, under any Pact… Thus, Puerto Rican statutory (by Law) US Citizenship will be lost, under Independence…, per the below sources.
Besides, statutory US Citizens that reside in the States have an equity interest because they can lose their statutory US Citizenship under Independence (or Free Association)… Thus, the US Congress must state in any Plebiscite– that statutory US Citizens residing in a State will not lose their US Citizenship (naturalize them under the 14th Amendment) or let them Vote because the outcome affects them… Only Statehood guarantees permanent US Citizenship!
**Best Option: PR EQUALITY & PROGRESS with STATEHOOD!
“En la Unión esta la Fuerza!”**
Until there is a clear Decision by the Supreme Court, today, the facts point to that there are two main sources of US Citizenship—One permanent– fully protected by the 14th Amendment; the Other– is statutory or “by Law”– which is un-permanent (for un-incorporated US Territories), not fully protected, as any Law can be amended or revoked by the US Congress or cease to exist upon Independence…
The US Territory of Puerto Rico is Federally undemocratically ruled by the US Congress, under the Territorial Clause; and the US Supreme Court Insular Cases (1901-1925+) that covertly, are incongruently based on racism and discrimination, until Today! There are indicators/ evidence that attest–a statutory US Citizenship is not permanent by its very nature. (Even though there are no clear US Supreme Court rulings or settled law, but, some evidence is below.)
(Dennis O. Freytes-Florida Veterans Hall of Fame; former PMS-Professor UPR…)
PS: If there is evidence that statutory US Citizenship can be for “Life with benefits)—show the evidence; source or basis.
ENCLOSURE: FACTS & SOURCES-Statutory US Citizenship is unpermanent
*We need to strive for the truth-facts, proper analysis, and true Justice based on the reasonable merits of the case, based on equality! Unjust Laws must be overturned!
• The 14th Amendment states: “All Persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside…”
o The 14th Amendment doesn’t mention “Territory” or being born as a statutory US Citizen in an “un-incorporated” US Territory… It mentions you are a US Citizen of the “State wherein they reside…” Thus, protecting those born in the States or Naturalized in the States; and not protecting statutory US Citizenship which is at the will of our US Congress, and per the Insular Cases (1901-1925+/ Downes vs Bidwell and Balzac vs Porto Rico that generally state: “Puerto Rico is a US Territory; more foreign than domestic; belongs to; but, is NOT part of the US”…
o “The in-applicability of 14th Amendment outside a State of the Union also explains why for “unincorporated” territories like Puerto Rico Congress had to enact a FEDERAL STATUE (8 USC 1402) to provide statutory rather than constitutional birthright citizenship based on birth in Puerto Rico.” Any Laws US Congress makes can be amended (like it has done before) or revoked (that can be done, if Puerto Ricans choose Independence–with or without a PACT of free Association)…
• US President Task Force on PR Status (2004 & 2006) “If P.R. were to become independent “… those…who had U.S. Citizenship only by statute would cease to be citizens of the United States, unless a different rule were prescribed by legislation…” (Page 9) (US Congress can revoke a Statutory US Citizenship, even if residing in a State… But, it has no power in an Independent Nation. However, it’s very doubtful US Congress can legislate a permanent statutory US Citizenship-because there is no authority to do so under the US Constitution or Supreme Court Cases, and per other facts.
• Afroyim v. Rusk (1967), established that citizens of the United States cannot be deprived of their citizenship involuntarily. But—
o The national citizenship clause of the 14th Amendment to the U.S. Constitution is not the source of U.S. citizenship for any person born in Puerto Rico. That means the Afroyim case defining constitutional citizenship rights, applies only to U.S. citizens born or naturalized under the 14th Amendment as it applies in a State of the Union.
o It was not the Afroyim ruling, but rather the case of Rogers v. Bellei in which the U.S. Supreme Court ruled on the legal nature of U.S. citizenship granted at the discretion of Congress by federal statutory law, based on birth or naturalization outside a State of the Union. Puerto Rico is a U.S. territory that has not been “incorporated” under the U.S. Constitution, so the national citizenship clause of the 14th Amendment as interpreted in the Afroyim case is not the source of citizenship in the territory.
• US Supreme Court (Rabang Case–The Philippines-2003) state: “In the “Insular Cases” the Supreme Court decided that the territorial scope of the phrase “the United States” as used in the Constitution is limited to the States of the Union. It is thus incorrect to extend citizenship to persons living in United States territories simply because the territories are “subject to the jurisdiction” or “within the dominion” of the United States, because those persons are not born “in the United States” within the meaning of the Fourteenth Amendment…”
• In Harris v. Rosario, 446 U.S. 651 (1980), “the Court in a succinct per curium order, applied Califano v. Torres, 435 U. S. 1 (1978), to hold that a lower level of aid to families with dependent children to residents of Puerto Rico did not violate the “Equal Protection Clause”, because in U.S. territories Congress can discriminate in applying the US Constitution against its Citizens by applying a rational basis standard. However, Justice Marshall issued a staunch dissent, again noting that Puerto Ricans are United States Citizens and that the Insular Cases are indeed questionable…”
• US Attorney General Dick Thornburg (& Under Secretary of the United Nations)—in “THE STATUS OF PUERTO RICO A CONSTITUTIONAL FRAMEWORK FOR SELF-DETERMINATION” (2007) and in other Writings States:
o In Rogers v. Bellei 401 U.S. 815 (1970), regarding the nature of statutory citizenship is consistent with the conclusion that even a statutory extension of the Fourteenth Amendment to Puerto Rico could not limit the discretion of Congress to amend or repeal that statutory extension.” *NOTE: “It confirms that Congress can grant citizenship to persons who don’t acquire it under the 14th Amendment, but all such statutory citizenship laws exist at the pleasure of Congress. That means Congress can make acquisition and retention of statutory citizenship conditional and REVOCABLE.” Also, that federal citizenship laws remain subject to amendment or repeal as to persons born outside a State of the Union, including those born in “unincorporated” territories like Puerto Rico.
• US v. Wong Kim Ark. Wong…: U.S. Supreme Court ruled on the legal nature of statutory citizenship for children “born abroad,” which means outside a State of the Union, including territory under U.S. sovereign rule but, not incorporated under the U.S. Constitution… (per Insular Cases). Ruling: “The first sentence of the Fourteenth Amendment has no application…The claim thus must center in the statutory power of Congress…”
• CONGRESSIONAL RESEARCH SERVICE (1989)- confirmed that Puerto Rico belongs to the United States but is not in the United States. “Whatever its exact status and relationship to the United States,” CRS cautioned, “Puerto Rico is not itself in the United States.” The 14th amendment, according to CRS, therefore doesn’t apply to people born in Puerto Rico.
• The 1997 Congressional GAO Report-U.S. INSULAR AREAS Application of the U.S. Constitution, states: “Citizenship is derived either from the Fourteenth Amendment to the Constitution or from a specific STATUS that confers citizenship on the inhabitants of an area that, although not a state, is under the sovereignty of the United States. Such legislation has been enacted for Puerto Rico (8 USC § 1402)…”
• Tuaua v. United States (2016)- CONFIRMED- the legal nature of U.S. nationality and citizenship law in “unincorporated” territories. Says–the Constitution’s 14th amendment does not fully apply to people born in a U.S. Territory, per, Territorial Clause and INSULAR CASES-which DECIDED– that the U.S. Constitution doesn’t fully apply to unincorporated territories like Puerto Rico… This is standing Law… *On June 13, 2016, the US Supreme Court denied certiorari, meaning the case will not be heard, and the lower court’s ruling stands. Thus:
o People born “unincorporated” U.S. territories (Puerto Rico) do not have any right to U.S. citizenship under the U.S. Constitution as it applies in a State of the Union. Rather, persons who are not born in a State of the Union do not acquire citizenship unless Congress exercises its discretionary power to grant citizenship by statute (that can be revoked).
o That is why federal statute law (8 USC 1401) had to be enacted to provide for naturalization of persons born outside a State of the Union based on relationship to a U.S. citizen parent.
• The U.S. Court of Appeals for the District of Columbia ruled 3–0 to deny birthright citizenship to American Samoans, ruling that the guarantee of such citizenship to citizens in the Fourteenth Amendment does not apply to “unincorporated” U.S. Territories (like Puerto Rico).
• This truth is masked in a recent U.S. Department of Justice letter and White House reports on Puerto Rico’s status also have been somewhat vague, but at least recognize that even sovereignty with a treaty of Free Association is a form of Independence leading to loss of US Citizenship…
• Congressional Reports adopted by Committees with jurisdiction for Territories, as well as Congressional Research Service, reports, make it clear U.S. Citizenship will end if U.S. sovereignty ends in Puerto Rico. See U.S. House of Representatives Report 105-131, Part 1, pp. 13-14; pp. 35-38.
• 8 USC Code, CH 12, SUB-CH III: NATIONALITY & NATURALIZATION-can be amended or revoked by US Congress).
*Part I- Nationality at Birth and Collective Naturalization:
o Code §1401. Nationals and citizens of United States at birth US Citizenship (Covers all US Citizens–including Sen. McCain, but, not statutory US Citizens which are covered under a different Status-Code… (Maybe so it can be easier to amend, revoke or change in the future…?)
o Code §1402: “All persons born in Puerto Rico on or after April 11, 1899, and prior to January 13, 1941, subject to the jurisdiction of the United States, residing on January 13, 1941, in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are declared to be citizens of the United States as of January 13, 1941. All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are Citizens of the US at birth.” **NOTE: Statutory US Citizenship is by a Law that can be revoked and it is not by “birthright”… nor fully protected by the 14th Amendment nor Due Process (which doesn’t cover suffrage…; see below.)
o The question–Why wasn’t the statutory US Citizens from the” unincorporated” US Territory of Puerto Rico included in the amended Part I §1401– that includes all other Citizens of the US as “birthright” and “jus soli” (right of soil) or under *Part II: Nationality Through Naturalization-(doesn’t mention statutory US Citizenship or Territories…)?
o Answer: Because, statutory US Citizenship can be revoked; is non-permanent!
**U.S. Supreme Court ruled (US v. Wong Kim Ark. Wong…): on the legal nature of statutory citizenship for children “born abroad,” which means outside a State of the Union, including territory under U.S. sovereign rule but, not incorporated under the U.S. Constitution:
• “The first sentence of the Fourteenth Amendment has no application…The claim thus must center in the statutory power of Congress…’naturalization by descent’ was…dependent, instead, upon statutory enactment…’But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.’ …there emerged an express constitutional definition of citizenship. But it was one restricted…
• The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action…
• The Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent…This takes us, then, to the issue of the constitutionality of the exercise of that congressional power when it is used…We conclude that its imposition is not unreasonable, arbitrary, or unlawful, and that it withstands the present constitutional challenge…
• Congress has no ‘power, express or implied, to take away an American Citizen’s citizenship without his assent,’ Afroyim v. Rusk…But, as pointed out above, these were utterances bottomed upon Fourteenth Amendment citizenship and that Amendment’s direct reference to ‘persons born or naturalized in the United States.’
• We do not accept the notion that those utterances are now to be judicially extended to citizenship not based upon the Fourteenth Amendment and to make citizenship an absolute. That it is not an absolute is demonstrated by the fact that even Fourteenth Amendment citizenship by naturalization, when unlawfully procured, may be set aside…A contrary holding would convert what is congressional generosity into something unanticipated and obviously undesired by the Congress…”
• US v Vaello-Madero (21 APR 2022)-US Supreme Court unjustly Rules-Congress was within its power to exclude Puerto Rican from a benefits program (SSI-Supplemental Security Income) for the very old, poor and disable that’s available in all 50 states and the District of Columbia– which implies the US Constitution does not fully apply to all “WE THE PEOPLE” as it upheld the Federal unequal treatment of fellow US Citizens-US Veterans in the US Territory of Puerto Rico (since 1898).
o The Court (both Republican and Democrat appointees) held by an 8-1 vote that it was not unconstitutional for the Federal Government to deny equal rights or benefits that other US Citizens have to US Citizen-US Veterans in Puerto Rico. They failed to support the People, as they supported Federal oppression!
o In dissent, Justice Sotomayor responded, “In my view, there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others. To hold otherwise, as the Court does, is irrational and antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution. I respectfully dissent.”
o Also, Justice Gorsuch wrote—that the Insular Cases needed to be overturned. “The flaws in the Insular Cases are as fundamental as they are shameful! The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
US Attorney General Thornburg further states: “Four million U.S. citizens live under the U.S. flag in Puerto Rico, yet they can neither vote for president nor have voting representation in Congress, which enacts the federal laws under which they live. Residents of Puerto Rico and other U.S. territories are deprived of basic rights of self-determination that U.S. citizens generally enjoy and that the United States has committed itself to achieving for peoples around the globe.”
“Political gridlock in Congress and in Puerto Rico has stymied efforts to put Puerto Rico on a path toward a permanent political status that ensures full self-government for its residents. If Congress does not act soon, U.S. courts may be asked to give more serious consideration to whether the residents of Puerto Rico and other U.S. territories have full political and human rights under U.S. and international law that can no longer be ignored by the political branches of government.”