POSTSCRIPT / August 26, 2007 / Sunday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Can pre-1946 Pinoys claim US citizenship?

JUS SOLI: There is this fascinating argument that — oversimplified here — persons born in the Philippines when the islands were still United States territory (1898-1946) are Americans under the principle of jus soli (Latin for “right of the soil”).

This argument has spawned many cases filed by Filipinos born before July 4, 1946, claiming birthright citizenship. Generally, US courts have been holding the line against a possible tidal wave of Filipinos attempting to land in America.

On a related issue, reader Elbert Friend laments that the US Supreme Court has slammed the door on Filipino Americans born in the Philippines by refusing to review an adverse Court of Appeals decision on a citizenship case cited below.

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JAMES’ SAGA: The case arose when the former US Immigration and Naturalization Service cancelled the certificate of citizenship of James (not his real name) after deciding that it committed an “error” in issuing the certificate to him.

After exhausting administrative remedies, James sued for declaratory judgment. The district court saw his point and declared him a US citizen. The INS elevated the case to the appellate court.

James, a natural son (his parents married only in 1952) of an American father and a Filipina, was born in the Philippines in 1931, when the islands were still US territory. After his father died in 1966, he sought to establish his US citizenship.

Initially blocked by the Department of State, he finally prevailed and was issued a certificate of citizenship in 1992 and later a US passport. His wife, admitted as a permanent resident, now resides with him and his children.

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DILEMMA: Friend summarizes the case for us:

The Court of Appeals ruled that residence in the Philippines during the territorial period does not qualify as residence “in the United States.” That effectively reversed the decision of the district court.

Revised Statutes section 1993 provides: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States, but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”

Strictly interpreted, this means that children of US citizens born in the Philippines during the territorial period were not born outside US “jurisdiction,” and therefore, the statute does not apply. Yet neither were they born “in the United States” under Article XIV, and therefore could not gain citizenship via that route.

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CRACK: The absurd situation arises that these children, denied their citizenship, have fallen through a “statutory crack,” an aberration in law.

While these children may have been disqualified under the literal reading of the statute, the INS did not engage in literal disqualification for many years. Instead, US agencies construed or interpreted the statute to include those children as citizens. Likewise, residence in the outlying possessions was deemed sufficient to transmit citizenship to a child.

James’s father, born and lived all his life in the Philippines, derived his US citizenship at birth from his father (James’s grandfather) despite not being born outside the “jurisdiction” of the US.

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UNJUST: James’s life has been turned upside down by the revocation of his citizenship on the basis alone of an “error” that INS freely admitted in the statutory construction which, if taken strictly, does not even apply to him.

The liberties taken by INS in reading into the statute an interpretation that deprives James of his citizenship is not only inequitable and unfair, but is at cross purposes with the substance and intent of the law itself.

James has no chance under the statute, not because he is disqualified by it, but because it does not apply to him. What the INS asked the court to uphold is the construction the INS itself gives to the statute, which disqualifies James.

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STATE’S STAND: Since 1912, the Department of State has held that Revised Statutes section 1993 applies, as of the date of birth, to a child born out of wedlock in the outlying possessions of the US, provided paternity is established.

The Attorney General sustained this in an opinion of April 7, 1920. Ironically, the same office now holds that residence in the Philippines during the territorial period does not satisfy the residence requirement of the Statute.

Since the appellate court has sustained a new statutory construction, will the Attorney General cancel the certificates of citizenship “illegally” issued to illegitimate children born in the Philippines since 1912?

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BIRTHRIGHT: Acquisition of birthright citizenship is retroactive to birth. The person is considered to have acquired citizenship at birth and to have always maintained that status, even if that status is not confirmed until adulthood.

While there are subsequent or concurrent conditions such as the modern retention requirements, once granted, there is no second class citizenship recognized either under the Constitution or in the statute.

James was determined by the INS to be a US citizen at the time of his birth. He was administered and voluntarily took an oath of allegiance, effectively renouncing his Philippine citizenship. He applied for and obtained a US passport.

By what contrived legal process can a person be stripped of his birthright citizenship or “returned” to a “former status” when he has been a citizen from birth?

The Supreme Court’s decision has rendered James stateless, a cruel and unusual punishment. He is unable to obtain a passport to travel and has been deprived peace of mind from fears of deportation and separation from loved ones.

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(First published in the Philippine STAR of August 26, 2007)

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