POSTSCRIPT / August 10, 1999 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Those born before 1946 are still US nationals?

THAT column on citizenship, nationality and extradition (“Filipinos carrying US passports,” Aug. 4 Postscript) brought in interesting and very informative reactions from readers all over the globe who obviously have studied the matter. We share some of their views here.

For those who came in only now, a flashback: While commenting on the proposed extradition of erstwhile presidential adviser Mark Jimenez, we raised a legal theory that Filipinos born before we were granted independence on July 4, 1946, were born in what was technically an American territory and are, therefore, Americans under the principle of jus soli.

The theory went on: Since there are specific processes for losing one’s citizenship, the Filipinos at the time who were also US nationals could not have been legally stripped of their nationality en masse or by a sweeping unilateral proclamation of the US government.

The mind-boggling implication is that if we or our parents are/were Americans who had not been validly stripped of our/their US nationality, it should not be difficult for us to enter the US since we are still American nationals.

* * *

FROM Yucca Valley, California, lawyer-civic leader-publisher Emmanuel S. Tipon wrote:

“The jus soli rule is alive and well in the United States because it is part of the Constitution by virtue of the 14th Amendment adopted in 1868.

“The first clause reads: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’ This is the very issue litigated in the leading case of Rabang v. INS, 35 F3d 1449, decided in 1994.

“In the Rabang case, a Honolulu lawyer, Ronald Oldenberg, brought a declaratory judgment action on behalf of seven Filipinos in Hawaii who were being deported seeking a declaration that they were US citizens pursuant to the 14th Amendment because they or their parents were born in the Philippines before July 4, 1946, when it was still a US territory.

“According to a three-judge panel of the Ninth Circuit of the US Court of Appeals, based in San Francisco, no court had addressed the question whether persons born in a US territory are born in the United States within the meaning of the 14th Amendment.

“Judge Tang, a Chinese American, and Judge Alarcon, a Hispanic-American, ruled that birth in the Philippines during the territorial period did not constitute birth in the US under the citizenship clause of the 14th Amendment.

“Judge Pregerson, a Caucasian, wrote a well-reasoned dissenting opinion. He concluded that persons born in the Philippines during the territorial period indisputably were born within the US dominion, and therefore were born ‘in the United States’ within the meaning of the citizenship clause.

“He added that neither the congressional power to control naturalization and regulate territories, nor the now disfavored doctrine of territorial incorporation, authorized the court to deny to the plaintiffs what the people of the Unites States sought to ensure under the 14th Amendment—the inviolability of the fundamental right to citizenship by birth.

“The Rabang case is only binding within the jurisdiction of the Ninth Circuit (Hawaii, Guam, California, Alaska, Oregon, Washington, Nevada). Consequently, any Filipino born in the Philippines before July 4, 1946, may raise the same issue as Rabang before another court outside the Ninth Circuit.

“Would he/she succeed? As you are aware of, in decision-making, judges sometimes do not strictly follow the law. There are other considerations involved—like policy and, as you (Postscript) put it, the ‘terrifying implications’ of a decision.”

* * *

ON the question of dual citizenship, or specifically of Filipinos holding both Philippine and American citizenship, Tipon said:

“As for dual citizenship, this is an internationally recognized principle of law. For example, a child of Filipino citizens born in the US has dual citizenship at birth. The child is a US citizen by virtue of the principle of jus soli which is embodied in the 14th Amendment, since he was born in the US.

“The child is also a Filipino citizen by virtue of the principle of jus sanguinis recognized in the Philippine Constitution since the child’s parents are Filipino citizens.

“When Emilio ‘Lito’ Osmena was running for governor of Cebu, his opponent went to court contending that he was ineligible because he was a US citizen. Apparently, he was born in the US of Filipino parents. The Philippine Supreme Court dismissed the challenge, holding that he was eligible because he was also a Filipino citizen.”

* * *

TIPON contended that the provision in the Constitution on dual allegiance of citizens being “inimical to the national interest and shall be dealt with by law” (Article IV, Section 5) should not stand in the way of the enactment of a dual citizenship bill.

“Look at Israel,” Tipon said. “They believe that if you are a Jew, you are a Jew, wherever you live and even if you were born outside Israel. That is why the Jewish people living outside Israel love Israel and are very enthusiastic about helping Israel because it is also their country.

“The Mexicans are now embracing the idea of dual citizenship. Like the Philippines, Mexico forbids non-citizens from owning lands in the country. Millions of Mexicans who became Americans want to invest their money in real property in Mexico, but they are legally barred. I read a report that they will now be permitted to buy lands in Mexico”

* * *

FROM Belgium, reader Andy Grossman of the Université Catholique de Louvain said:

“American nationality is governed by the 14th Amendment (enacted to assure the rights of liberated slaves), which fixes in law the principle of jus soli that the US inherited from English law but which Britain itself partly abolished under the British Nationality Act 1981 (only offspring born in Britain of a permanent resident or citizen parent gets British nationality).

“Nationality of persons born outside the US states is governed by statute—the Immigration and Nationality Law. There is also a category of “non-citizen national” that applies to persons born in American Samoa and Swains Island to natives of those islands. That category used to apply to Filipinos born in the Philippines between the signing of the Treaty of Paris in December 1898 and the granting of Philippine independence on July 4, 1946:

“Filipinos were at the same time non-citizen nationals of the US and Philippine citizens. (Puerto Ricans had a similar status; they are now statutorily US citizens.) There are a number of court decisions clarifying the status of Filipinos. The theory mentioned in Postscript failed in court.

“The point is that—at least until the 1950s and perhaps still today—US non-citizen nationals could be deprived of their nationality by statute.”

* * *

GROSSMAN cited some points also made in his doctoral dissertation:

The inhabitants of America’s Asian and Pacific possessions had a distinct sub-nationality, “non-citizen national,” not fully defined but subject to collective divestiture. It was supposed that with the grant of independence, a distinct Philippine sub-nationality was created.

Filipinos were Philippine citizens as well as non-citizen nationals of the US. They were deprived of the status of US nationals, and their right of unrestricted entry and of US residence extinguished upon the grant of independence on July 4, 1946, in the absence of pre-existing residence on US territory.

“If resident in the US, the Filipino, like the Irish national resident in the United Kingdom, was subject to the obligation of military service,” Grossman said. “The Supreme Court affirmed that a Filipino was (within limitations) a national of the United States who owed permanent allegiance to the United States, including the obligation of military service.’

“There was, however, the conundrum of race,” he said. “Legislative provision was necessary to except Filipinos from existing racial exclusion laws.”

Thus, beginning in 1918, Filipinos became eligible for naturalization despite not being “free white persons” or “of African nativity.” Before that time they might have been naturalized in the US only on condition of having served three years in the US naval forces.

* * *

GROSSMAN concluded: “On July 4, 1946, non-citizen nationals of the US who were born in the Philippines became aliens, even if they happened to be permanent residents of the US. Those who had entered the US before May 1, 1934, had the status of legal permanent residents eligible for naturalization.

“Their maintenance of that status would depend on presence on US territory at the moment of their loss of nationality status. A person born in the Philippines in 1913 who immigrated to the US in 1930, before the Philippines Independence Act of 1934 could not be deported.

“Today, the status of non-citizen national applies to a very limited number of persons, born and living in ‘outlying possessions’—American Samoa including Swains Island, a historical anomaly resulting from the Philippine experience.

“Race issues had caused American judges some considerable logical difficulty in nationality matters and not only with respect to Asians.”

* * *

(First published in the Philippine STAR of August 10, 1999)

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