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December 22, 1999

Readers' Viewpoint
The San Juan Star
Monterrey Industrial Urbanization
5 Acacia Street
San Juan, Puerto Rico 00920-1511

Dear Editor:

Once again, misinformation abounds in Puerto Rico about a federal court ruling with profound implications for all of us born here under the current status. To understand the case of our fellow citizen Jennifer Efrón, we must refer directly to applicable law.

The 14th Amendment of the U.S. Constitution states that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside." The U.S. Supreme Court has interpreted the right to national and state citizenship created by the 14th Amendment to mean such citizenship is conferred as a constitutional right only for persons born or naturalized in a state of the union.
As it did before the 14th Amendment was adopted, Congress also has the power under the naturalization clause in Article I, Section 8 of the U.S. Constitution to confer U.S. citizenship on persons who do not have a constitutional right to citizenship under the 14th Amendment. Congress has exercised that power by enacting the Immigration and Nationality Act, a federal statute conferring U.S. citizenship on persons who do not acquire it by birth or naturalization in a state of the union.

Under Section 1402 of this federal statute, Congress has established a policy that persons born in Puerto Rico while it is under U.S. sovereignty become U.S. citizens at birth. The Immigration and Nationality Act treats Puerto Rico as part of the United States for purposes of that federal law only, and does not extend the 14th Amendment to Puerto Rico.

Even if it wanted to extend the 14th Amendment to Puerto Rico, Congress does not have the power by mere statute to make any provision of the federal constitution applicable to Puerto Rico in any permanent sense that would be binding on Congress in the future. That would require either admission into the union or a constitutional amendment.

The Efrón family correctly concluded, therefore, that the citizenship status of persons born in Puerto Rico, like all other elements of territorial law and policy, is subject entirely to the discretion of a Congress in which the U.S. citizens of Puerto Rico do not have voting representation. The Efrón family was also aware that the U.S. Supreme Court had ruled that as long as due process is observed and any discrimination affecting the commonwealth is deemed reasonable, Congress retains all residual sovereignty and the plenary power to unilaterally alter the status of Puerto Rico and its residents under federal law.

Ms. Efrón sought to protect herself from discriminatory policies of Congress that could impair or impede her enjoyment of the rights of U.S. citizenship in the future by applying for naturalization in a state of the union. In order to acquire U.S. citizenship as a constitutional right under the 14th Amendment, she complied with the requirements for naturalization as set forth in the Immigration and Nationality Act. However, the INS denied her application, so she sued in federal court. The federal trial court ruled in favor of the INS, so she appealed. After she lost her appeal, she petitioned the U.S. Supreme Court to review her case.

The Supreme Court denied her petition, which leaves standing the federal court ruling in this case which once again specifically stated that Puerto Rico is "a United States territory." The Efrón case also confirms that Congress has legislative authority over the naturalization of all persons who acquire U.S. citizenship under federal statute, including those born in Puerto Rico.

The Efrón case recognizes that, under the current policy of Congress, persons born in Puerto Rico are citizens and not "aliens" under the Immigration and Nationality Act. Because they are not aliens, they are not eligible for the form of naturalization available to aliens under the current statute. Thus, Congress has not made any means to acquire citizenship other than its discretionary grant under 8 U.S.C. 1402 available to those born in Puerto Rico, and there is no separate constitutional right for persons born in Puerto Rico to upgrade their citizenship by naturalization in a state.

Ms. Efrón correctly argued that Congress could choose to end or amend the terms of U.S. citizenship for those born in Puerto Rico in the future. It was also argued that Congress would have discretion to alter the citizenship rights of persons born in Puerto Rico if Congress accepted Puerto Rico as a separate nation. However, the federal courts held that, as long as Congress continues to exercise its discretion by providing U.S. citizenship by statute, Puerto Rico will not be eligible for naturalization in a state in order to acquire 14th Amendment citizenship.

The logic of this ruling indicates that, if those who want Puerto Rico to become even more loosely associated with the United States get their way, the credibility of any proposal or claim by Puerto Rico seeking to secure constitutionally permanent U.S. citizenship will be even further diminished. In addition, since there is no constitutional right to pass statutory citizenship to the next generation of persons born in Puerto Rico, if Puerto Rico is recognized as a separate nation with its own citizenship (as some advocate), Congress could change the current policy giving U.S. citizenship to those born in Puerto Rico. Thus, if Puerto Rico ceases to be a territory and becomes a separate nation with its own citizenship, the assumption that those born in Puerto Rico would enjoy so-called dual citizenship under federal law in perpetuity may be wishful thinking-or collective self-deception.

Policy changes when status changes. For example, even though the citizens of the Pacific island free associated states have freedom of travel in the United States under a 1986 compact, they enter the United States as documented aliens under an INS Form I-94. In addition, the time they reside in the United States under the compact does not count toward naturalization.

Core elements of the compact under which this open travel arrangement exists expire in 2001. The Clinton Administration notified the Pacific island free association state governments in October of this year that this special immigration policy is one of the items on the table for renegotiation. It is expected that after 2001 citizens of the free associated states will need to obtain visas to enter the U.S. mainland, based on health screening as well as means test to show that the person will not go on welfare in the mainland.

Thus, until Puerto Rico achieves a constitutionally permanent status either under U.S. sovereignty or separate nationhood, our nationality and citizenship status will remain politically and legally uncertain. In this regard, the Efrón case has far-reaching implications for Puerto Rico and gives us all a lot to think about.


Herbert W. Brown III
Citizens' Educational Foundation, Inc.