Para ver este documento en
español, oprima aquí.
THE SAN JUAN STAR
The San Juan Star
Monterrey Industrial Urbanization
5 Acacia Street
San Juan, Puerto Rico 00920-1511
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.
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.
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
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.
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.
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.
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
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.
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.
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.
Citizens' Educational Foundation, Inc.