On November 3rd, Puerto Rican voters chose statehood in a yes/no vote, ending more than a century of political limbo.
Now Congress must take action. Until Congress votes to admit Puerto Rico, the Island will continue to be an unincorporated territory belonging to the United States. Statehood is a permanent status, but territorial status is temporary. Until Puerto Rico is admitted as a state, it is still possible that Puerto Rico could become a state or a nation.
Independence in the future?
Puerto Rico does not want independence. Independence has never received more than 5% of the vote, the people of Puerto Rico have never elected an Independence Party governor, and polls continue to show that independence is as unpopular as ever. But theoretically, if Congress does not take action, Puerto Rico could choose independence at some time in the future.
If the voters of Puerto Rico choose independence, including independence with a free association treaty, U.S. citizenship based on birth in Puerto Rico will end. The United States has never agreed to automatic dual citizenship with another nation, and the government has said that it will not do so for Puerto Rico.
There are more than 5 million U.S. citizens born or descended from Americans born in Puerto Rico living throughout the 50 States. Will they lose their citizenship too? We’ve had questions about this.
We checked with attorneys and got an answer.
Will Puerto Ricans living in the states keep U.S. citizenship?
Any person who is born or naturalized under federal legal jurisdiction in a State of the Union is a citizen of the U.S. and of the state where they live, regardless of their ancestry, Puerto Rican or otherwise. A native born New Yorker whose parents came from Puerto Rico will continue to be a U.S. citizen no matter what happens to Puerto Rico. Independence for Puerto Rico will not affect the citizenship of these people.
If Puerto Rico is to become a separate sovereign nation with the right to full independence, both the U.S. and Puerto Rico need to ensure a smooth transition to true and unencumbered post-territorial national sovereignty for both nations. That means even if independence is phased in under a treaty of free association, both nations will have a sovereign interest in establishing separate national citizenship. Failure to do so would prevent each nation from preserving its right to independence with free association in the future.
Accordingly, if voters choose independence with or without a free association treaty, the U.S. Congress will end U.S. citizenship by birth or naturalization in Puerto Rico. There is no basis for doubt about that.
Of course, Congress could decide that people who acquired U.S. citizenship based on birth during the territorial period can retain that status for life, but it normally would require those who choose to keep it to choose between allegiance to the U.S. or Puerto Rico. When Puerto Rico was granted citizenship, citizens of Spain living in the Island were able to choose to keep their Spanish citizenship instead. Puerto Ricans might have the option of keeping their U.S. citizenship and refusing Puerto Rican citizenship.
Congress also could restrict those who acquired U.S. citizenship by birth in the territory from passing it on to their children in Puerto Rico.
This could become especially necessary if a new Republic of Puerto Rico decided to give Puerto Rican citizenship to U.S. citizens born in Puerto Rico while it was a territory, and even to their children after it becomes a nation. If that happened, the U.S. would be correct in finding that Puerto Rico failed to establish its own separate nationality and citizenship consistent with separate sovereignty.
Avoiding that scenario is one reason why Congress is likely to require that those with U.S. citizenship based on birth in the territory who also become eligible for citizenship under laws in the nation of Puerto Rico shall make a choice between allegiance to and citizenship of the U.S. or to Puerto Rico. Congress could make a law saying that anyone who accepts Puerto Rico citizenship would relinquish U.S. citizenship.
As a general principle a person must intend to relinquish U.S. citizenship in order to lose it. Federal law defines intent to relinquish citizenship based on certain actions inconsistent with allegiance to our nation. However, Congress could decide that during the transition from territory to nationhood, accepting citizenship of Puerto Rico shows an intent to give up U.S. citizenship.
The most likely scenario, then, is that U.S. citizens from Puerto Rico will have a choice between U.S. citizenship and Puerto Rican citizenship.
A new Republic of Puerto Rico might decide not to offer citizenship to U.S. citizens by birth in Puerto Rico during the territory period, particularly if they are living in the states. In that case, people currently living in the states would not be affected by the change in Puerto Rico’s status.
However, they would probably be affected if they have family in Puerto Rico. The U.S. doesn’t allow citizens of the current Free Associated States to travel to the U.S. without passports, though they have the rights to enter, live, work, study, and receive some services in the U.S. indefinitely.
A newly independent Puerto Rico with a Compact of Free Association (COFA) could be expected to have special citizenship transition provisions, which might be like those of the current Free Associated States. However, it is not possible to know what terms for travel the U.S. and a newly independent Puerto Rico would negotiate.
Statehood guarantees U.S. citizenship and free travel within the United States. Independence does not. And in fact, remaining a territory doesn’t guarantee future U.S. citizenship. Congress gave Puerto Rico citizenship and Congress could take it away again.