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The San Juan Star
The Legal Realities Of U.S. Citizenship In Puerto Rico
By Dick Thornburgh
April 8, 2002
In his Viewpoint column of March 11, 2002, Guillermo Moscoso ably clarified the legal nature of U.S. citizenship in Puerto Rico. However, the discussion regarding revocability of U.S. citizenship deserves to be augmented and amplified.
Under the U.S. Constitution there are two ways to acquire U.S. citizenship. First, persons born or naturalized in the United States (defined by the U.S. Supreme Court for this purpose as the states of the union) acquire U.S. citizenship under the 14th Amendment to the Constitution. Second, under Art. I, Sec. 8, Cl. 3 of the Constitution, Congress may confer U.S. citizenship by statute on persons who do not acquire it automatically under the 14th Amendment (i.e. Americans born overseas or in a territory).
Congress cannot take away or impose conditions on the right to automatic 14th Amendment citizenship for persons born or naturalized in one of the 50 states. In contrast, Congress can make statutory citizenship conditional on qualifications such as a period of previous or even post-naturalization residence in the United States. The U.S. Supreme Court has ruled that Congress is not obligated to confer statutory citizenship, so it can be denied or revoked if statutory conditions are not met.
Both constitutional and statutory citizenship can be ended if renounced voluntarily and with the actual intent to become an alien, in compliance with federal law.
In the case of Puerto Rico, since 1917 Congress has conferred U.S. citizenship without any conditions other than birth in the territory. However, there is no doubt Congress could impose additional conditions if deemed to be in the national interest.
Once conferred, statutory citizenship is constitutionally protected from unlawful infringement that violates "fundamental rights" such as due process. However, since the U.S. Constitution does not apply of its own force in Puerto Rico, the federal courts have upheld treatment of U.S. citizens in Puerto Rico differently than in the states.
In the case of Puerto Rico and other territories, relevant Supreme Court rulings and the record before Congress, including a series of legal opinions by the Congressional Research Service, lead to two conclusions regarding citizenship and political status resolution:
It is within the power of Congress to require residents in a territory that acquires a non-territorial status other than statehood (i.e. nationhood) to make an election between U.S. citizenship and citizenship of the new nation.
n Where a former territory has been recognized legally as a nation, the eligibility of persons born there to seek naturalization or travel to the U.S. without a visa would be determined exclusively by Congress in the exercise of its powers over immigration.
So far, this discussion has concerned the acquisition and loss of U.S. citizenship by individuals born in Puerto Rico. As to Puerto Rico and its body politic collectively, the constitutional and legal analysis of citizenship is much less complicated:
n The current statutory policy conferring U.S. citizenship at birth in Puerto Rico with no conditions exists at the discretion of Congress, and can be ended or altered unilaterally at any time by amendment or repeal of the conferring federal statute.
n The federal statute conferring U.S. citizenship is not part of the Puerto Rico Federal Relations Act or the commonwealth system of territorial self-government, and approval of the commonwealth constitution does not bind Congress to continue the current statutory policy of unconditional conferral of citizenship in the future.
Those are the legal realties of U.S. citizenship in Puerto Rico that must be weighed in evaluating the advantages and risks of political status options that may or may not be available in the future. For a more detailed official legal analysis of these governing legal principles, see U.S. Congress, House of Representatives Report 105-131, Part 1, pp. 13-14, 35-39 (June 12, 1997).
* Dick Thornburgh served as Attorney General of the United States under Presidents Reagan and Bush, and is a former two-term Governor of Pennsylvania.