POSTSCRIPT / August 28, 2003 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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US policy now looks kindly on dual citizens

FILAMS’ QUERIES: Our last Postscript on the upcoming law on dual citizenship elicited questions on how such dual status may affect Filipinos who have been or will be naturalized as citizens of another country.

Most of the inquiring readers had US addresses, so we focus today on Filipino Americans. They may be relieved to know that American law and policy, alongside US Supreme Court decisions, have become less restrictive as regards dual citizenship.

We make this conclusion based on a study of State department and INS (Immigration and Naturalization Service) papers, summaries of some court decisions, anecdotal accounts, and websites of authorities on the subject.

We make clear at the outset, however, that whatever we say is just opinion in relation to the expected signing by President Arroyo this week of the Citizenship Retention and Reacquisition Act of 2003.

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OATH REQUIRED: The law will amend the 67-year-old Commonwealth Act No. 63 that automatically strips natural-born Filipinos of their citizenship when they are naturalized in another country. The new law will allow them to keep or regain their Philippine citizenship.

A provision, however, had been inserted into the new law requiring Filipino repatriates to apply for Philippine citizenship and take an oath of allegiance.

Many FilAms intending to reacquire Filipino citizenship are asking if this required oath would run counter to their US oath of allegiance and result in their loss of American citizenship.

The US oath of allegiance says in part: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen… and that I take this obligation freely, without any mental reservation or purpose of evasion….”

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POLICY RELAXED: New US policies have reversed the earlier presumption that when an American is naturalized abroad or takes a foreign oath of allegiance, that act is a strong indication of a desire to give up his US citizenship.

A State Department document sent in 1990 to US diplomatic and consular posts can shed some light on the retention and possible loss of US citizenship.

Nothing in it, however, suggests that the US has any objection if a person wants to keep both US and foreign citizenship. In short, the US allows dual citizenship despite some problems it sometimes creates.

The State document said in part: “The concept of dual nationality means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based on its own policy. Persons may have dual nationality by automatic operation of different laws rather than by choice.

“A US citizen may acquire foreign citizenship by marriage, or a person naturalized as a US citizen may not lose the citizenship of the country of birth. US law does not mention dual nationality or require a person to choose one citizenship or another.

“Also, a person who is automatically granted another citizenship does not risk losing US citizenship. However, a person who acquires a foreign citizenship by applying for it may lose US citizenship.

“In order to lose US citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up US citizenship.”

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CITIZENSHIP CLAUSE: The first sentence of the 14th Amendment to the US Constitution, often called the “citizenship clause,” says: “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 provision was originally intended to guarantee citizenship to the former slaves and their descendants after the Civil War. However, the Supreme Court held in Afroyim v. Rusk (1967) and Vance v. Terrazas (1980) that the “citizenship clause” prevents Congress from enacting laws revoking a person’s US citizenship without evidence of his intent to give it up.

Note the word “intent” as it is crucial in determining if a US citizen can be validly stripped of his citizenship when he becomes also a citizen of another country. If it is shown by a FilAm’s statements or actions that he does not intend to give up his US citizenship, he has a strong case for keeping it.

Note also the phrase “subject to (US) jurisdiction.” While any person born in the US is a citizen, the portion of the “citizenship clause” dealing with US jurisdiction excludes US-born children of foreign diplomats stationed in the US and enjoying diplomatic immunity.

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PRESUMED INTENT: The State department presumes that US citizens intend to retain their citizenship when they obtain naturalization in a foreign state, subscribe to routine declarations of allegiance to a foreign state, or accept non-policy level employment with a foreign government.

So when an American does the above acts, he does not have to submit a statement or evidence that he wishes to retain his American citizenship. That intent is already presumed.

Under the US Immigration and Nationality Act, an American who wants or intends to give up his citizenship can accomplish that by voluntarily “making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State.”

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ELEMENTS NEEDED: From that provision, we see that renunciation must have these elements: (a) appear in person before a US consular or diplomatic officer, (b) in a foreign country (normally at a US embassy or consulate); and (c) sign an oath of renunciation.

If any one of these elements is missing, the supposed act of renunciation has no legal effect. We point out additionally that many court decisions have affirmed that Americans cannot effectively renounce their citizenship by mail, through an agent, or while in the US.

Also, parents cannot renounce US citizenship for their minor children. Before an oath of renunciation is administered, a person below the age of 18 must convince the diplomatic or consular officer that he fully understands what he is doing and is doing so voluntarily.

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WRITE U.S. GOV’T: We are not dispensing legal advice, but our opinion is that when the dual citizenship law takes effect, FilAms seeking to regain their original citizenship lost upon naturalization in the US may become Filipinos again without automatically losing their US citizenship.

A good move would be to seek the advice of an immigration lawyer. Another recourse is to write the proper agencies in the State department or the Justice department asking for clear guidelines.

State clearly in your letter what you intend to do (reacquire Philippine citizenship and thus become a dual citizen) and ask if such act will result in your losing your US citizenship. We’ll appreciate your sharing the response with us.

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(First published in the Philippine STAR of August 28, 2003)

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