Citizenship Law and Puerto Rico

on May 8, 2018

We received a comment on a post here at PR51st:

“This entire article is pointless because it does not point out a single federal law or legal precedent in which citizens of a former territory are obligated to give up their citizenship. THIS IS A MYTH that pro-statehood people use to instill fear into the hearts of the ignorant. Control through fear is a pathetic strategy and unbecoming of civilized adults. The passing down of citizenship by birth applies to any US citizen’s family living anywhere in the world. For example: Ted Cruz’ parents in Canada, John McCain in Panama, soldiers having kids in Germany, etc.”

This comment claims there is no precedent for loss by territorial residents of U.S. citizenship derived from a U.S. citizen parent. It is interesting the reader refers to the U.S. citizenship of U.S. Senator John McCain.

Senator McCain’s citizenship

McCain was presumed to be a “natural born citizen” eligible to serve as President under Article II, Section 1 of the U.S. Constitution.

In the case of McCain, his status was determined not by birth in the Canal Zone under applicable federal laws and treaties that defined that jurisdiction’s legal status, but rather birth to a U.S. citizen father under federal naturalization statutes (i.e. nationality and citizenship law).

The U.S. Congress limited acquisition of U.S. citizenship in the Panama Canal Zone to children born there whose U.S. citizens parents were U.S. government or Canal Zone Authority employees. Congress later conferred citizenship on children of U.S. citizens born in Panama only if the U.S. citizen parent had previously resided in a state of the union.

The point being that under both territorial organic acts and federal naturalization laws Congress can impose conditions on acquisition and retention of U.S. citizenship granted by federal statute rather than by direct application of the U.S. Constitution. In all cases Congress can end future statutory conferral of U.S. citizenship by birth in a territory or birth to a U.S. citizen as it deems necessary in its discretion.

If McCain’s father had not been a U.S. government employee or had been born in the Canal Zone but never lived in a state, John McCain might never have acquired U.S. citizenship.

After the Panama Canal Treaty ended U.S. control of the Canal Zone, birth in the former American controlled zone no longer conferred citizenship, because that jurisdiction as defined by U.S. law ceased to exist.

Puerto Rico

Similarly, birth in Puerto Rico would no longer give rise to U.S. citizenship “at birth” if it ceased to be a U.S. territory.

That’s because those who acquired U.S. citizenship during the territorial period did so based on birth in the “territory” of Puerto Rico. If Puerto Rico is reclassified as a sovereign nation (including a free associated state), the territory would cease to exist. Federal naturalization law would have to be changed for birth in a sovereign Puerto Rico to confer U.S. citizenship.

As with the U.S. territory of the Philippines and the Canal Zone, termination of U.S. sovereignty and/or federal jurisdiction by treaty or statute normally means the end of U.S. citizenship “at birth.” Those who acquired U.S. nationality and citizenship during the territorial period may be required to choose between retention of U.S. citizenship or allegiance to the new nation of Puerto Rico.

If there is a “myth,” it is that citizens can pass their U.S. citizenship on to children born in the former territory once the territory ceases to exist. How many former “U.S. nationals” in the Philippines and how many former “U.S. citizens” in Panama are able today to pass U.S. nationality or citizenship to children born in those former jurisdictions in 2018?

Want a precedent? The U.S. Supreme Court ruling upholding the 1946 act of Congress terminating “national” status for Filipinos when they became independent logically would apply to all residents of Puerto Rico.

Is citizenship passed on?

You assert that the children of all U.S. citizens “derive” citizenship from any U.S citizen parents. However, derivative citizenship exists only under federal statute, not under the U.S. Constitution. That means that all forms of derivative citizenship created by statute can be ended by statute.

Read the law on citizenship through parents and you will see that it has changed over time — including changes during the 21st century. You’ll also see that it’s not as simple as “The passing down of citizenship by birth applies to any US citizen’s family living anywhere in the world.” It doesn’t apply to grandparents and grandchildren. It often requires physical presence in the United States. It is not possible to apply these rules to an independent nation of Puerto Rico and end up with permanent U.S. citizenship for residents of a new nation.

Just as all forms of territorial status created by statute can be ended by statute, continued conferral of statutory citizenship in a current or former territory can be ended. The terms for transition may vary, but the end result is that universal dual nationality and citizenship will be phased out if territorial status ends in favor of any status other than statehood.

There are territories which have become independent nations, and the people living there do not have U.S. citizenship. There is no reason to assume that Puerto Rico would be different.

Thanks to our commenter for bringing up this point and allowing us to explain it.