Puerto Rico, Free Association, and Immigration

President Trump’s executive orders on immigration don’t affect people in Puerto Rico for one simple reason: Puerto Ricans are citizens of the United States. If the people of Puerto Rico choose the Free Association option on the June 11th status vote, that could change.

Here’s why: people born in the current FAS (Free Associated States) are not citizens of the United States, and there is no reason to think that residents of a Free Associated State of Puerto Rico will be, either. The people of the FAS used to be able to travel to the U.S. without a passport, but changes to the agreements with the U.S. now mean that these people must have passports. They can be refused entry or deported just as people who need visas to travel are.

A draft of Trump’s new immigration plan includes these rules:

• Refuse entry to any non-citizen who “is likely to become a public charge” — that is, anyone who doesn’t have a job.
• Deport any non-citizen who is receiving public assistance.
• “Combat the problem of ‘birth tourism’ ” — the practice of coming to the U.S. while pregnant in order to have a baby on U.S. soil. Any child born in the United States is a citizen of the United States.
• Re-examine any appeals to Immigration Services by individuals who receive public assistance.

Citizens of the Free Associated states can work in the United States “indefinitely” as non-immigrants– that is, they can live and work in the U.S. without any special work visa. If someone from the Marshall Islands comes to the United States to work and loses her job, however, she could be deported for being “a public charge.”

Rep. Luis Gutierrez has introduced a bill in Congress under which Puerto Rico could have independence with or without free association and still keep their U.S. citizenship. However, a compact of free association is an agreements between two nations, an agreement which can be changed or ended at any time. Puerto Rico would not have the option of negotiating the compact of free association before the June vote and then holding the U.S. to the terms of the compact if free association wins.

For these and other reasons, in Congressional testimony on behalf of the U.S. Department of Justice and the President, former U.S. Attorney General Thornburgh confirmed that mass dual citizenship for a sovereign nation of Puerto Rico would be incompatible with U.S. law and policy. Specifically, Thornburgh noted that Congress traditionally does not exercise its power under the Naturalization Clause to create dual citizenship under federal law. He also noted that that U.S. generally does not take enforcement action to prevent other governments from giving citizenship to U.S. citizens on an individual basis.

In that context Thornburgh made the following remarks on February 7, 1991, in a U.S. Senate hearing on Puerto Rico’s status, regarding dual citizenship if Puerto Rico chooses separate sovereign nationhood:

“…we strongly oppose allowing such arrangement for the entire population of Puerto Rico, which would differ fundamentally from the isolated cases of individual dual citizenship. It would not be in the best interest of the United States.”

More importantly, mass dual citizenship would not be compatible with a non-territorial, non-colonial free associated state status.

If the compact did not include U.S. citizenship for the citizens of the new Republic of Puerto Rico, it would be impossible to go back to being a U.S. territory or to become a state. The people of Puerto Rico would be subject to the U.S. rules about immigration, just as the people of the current free associated states are.

The law describing the 2017 plebiscite, as passed in Puerto Rico, gives a choice between statehood on the one hand and independence/free association on the other. If independence/free association wins the vote, there will then be a vote between independence and free association. At that point, U.S. citizenship may already be lost.