[Congressional Record Volume 143, Number 53 (Tuesday, April 29, 1997)]
[Extensions of Remarks]
[Pages E766-E768]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  ENFORCEMENT OF U.S. IMMIGRATION AND NATIONALITY LAWS IN PUERTO RICO

                                 ______
                                 

                          HON. GEORGE W. GEKAS

                            of pennsylvania

                    in the house of representatives

                        Tuesday, April 29, 1997

  Mr. GEKAS. Mr. Speaker, ever since I was stationed in Puerto Rico 
during my service in the U.S. Army from 1953 to 1955, I have harbored 
warm sentiments about the people I met, the beauty of the place, and 
the society of the island, as well as about its special bond with the 
mainland United States.
  I arrived there shortly after the U.S. Congress and the Puerto Rican 
people had authorized the local constitution under which the island has 
existed up to the present. I was never certain that the status under 
the new constitution was well-defined, or how the people regarded 
themselves as a result.
  For example, the Puerto Rican soldiers with whom I served expressed 
loyalty to the United States, and never felt that having U.S. 
nationality and citizenship meant that they had lost their status as 
citizens of Puerto Rico. In the same way that soldiers from Texas or 
Maine still saw themselves as citizens of their States,

[[Page E767]]

Puerto Ricans did not lose their identity as Puerto Ricans.
  That is how it has been and always should be for the people of the 
States of the Union, as well as the U.S. citizens in the territories 
until Congress and the residents decide about permanent union. Still, I 
am concerned that 45 years after I served in Puerto Rico--which remains 
the largest and most populous unincorporated territory--the decision on 
a permanent political status has not been reached. Even though 
economic, social, and cultural integration has advanced well, the 
question of full membership in the Union needs an answer one way or the 
other.
  As the end of a century within the U.S. political system approaches, 
Puerto Rico's future is full of promise. The local government is 
instituting bold market-oriented reforms and downsizing government as 
private sector led development expands and unemployment drops to 
historic lows. In addition, in November of 1996 the voters returned to 
office leadership committed to working with Congress to resolve the 
question of the territory's political status, and thereby create 
certainty about the future which is critical to even further economic 
success.
  Because Congress in 1995-96 clarified issues of law and policy which 
had been shrouded in ambiguity for many years, the people were 
empowered with information and ideas about their options for the 
future. In turn, the candidates in the 1996 elections last November 
were able to present the voters with clear choices regarding Federal-
territorial policy issues. The status-quo candidates lost by historic 
margins in last year's election, demonstrating the people know how to 
send a clear message to both the Federal and territorial governments 
when the issues and the choices are well-defined.
  It seems quite clear that the people of Puerto Rico want equal 
political standing under a form of full self-government. Who can blame 
people who have been within the U.S. political system for 100 years for 
wanting constitutionally guaranteed citizenship, with the ability to 
pass their nationality to the next generation without fear that it 
could be terminated by a future Congress. That is why they voted for 
leaders who told them the truth about the fact that they can not 
achieve that result under unincorporated territory status because the 
current form of political union with the United States itself is not 
permanent.
  Indeed, under the territorial clause Congress has the discretionary 
power to end the conferral of U.S. citizenship for persons born in 
Puerto Rico starting tomorrow if it so chooses. Of course, no one 
expects the Congress without any compelling reason to return to the 
pre-1917 days of the Foraker Act when birth in Puerto Rico did not 
result in U.S. citizenship, nor does any one expect Congress 
unilaterally to change Puerto Rico's status without considering the 
wishes of the people. But that is not the point, is it? The people of 
Puerto Rico want a status with rights that are guaranteed, not 
permissive.
  As a body politic and at the level of political culture, the U.S. 
citizens of Puerto Rico have taken possession of the concept of limited 
government, and they recognize that permanent territorial clause status 
is not the goal of American constitutionalism. Disenfranchisement can 
not be enhanced so that it becomes an acceptable permanent status.
  In this context, the question of citizenship becomes critical. The 
background paper which I am submitting for the Record today addresses a 
highly publicized citizenship case in Puerto Rico, and how it has been 
handled by the local and Federal authorities. I am concerned about the 
impact this case could have on the status of 3.8 million U.S. citizens 
residing in Puerto Rico who demonstrate every time they go to the polls 
that they cherish their U.S. nationality with patriotic pride. Congress 
must follow further developments in this case in an informed manner, 
and ensure that the administration's Puerto Rico task force manages 
this issue more effectively from this point forward.

 The Effect of Renunciation of Nationality and Citizenship in the Case 
                     of Persons Born in Puerto Rico

       Question: Does a person who renounces U.S. nationality and 
     citizenship acquired by birth in Puerto Rico thereafter have 
     separate nationality and citizenship of Puerto Rico?
       Answer: No. Presently there is no separate Puerto Rican 
     nationality or nationality-based citizenship in the legal, 
     political or constitutional sense. The People of Puerto Rico 
     have a distinct cultural heritage, which can be sustained 
     through U.S. nationality and citizenship or through separate 
     nationality and citizenship. Which path is taken will depend 
     on where national sovereignty rests when the self-
     determination process for Puerto Rico is completed in favor 
     of either statehood or separate nationhood. As long as Puerto 
     Rico remains under the present form of commonwealth status 
     the nationality and nationality-based citizenship of persons 
     born there will be defined and regulated in accordance with 
     the provisions of the U.S. Constitution and federal law 
     applicable to Puerto Rico as determined by Congress.
       Explanation: The question arises from the case of Mr. Juan 
     Mari Bras. He is a resident of Puerto Rico and lawyer by 
     profession, but he is most well-known as a publicity-seeking 
     member of a small socialist political faction in Puerto Rico 
     which views U.S. sovereignty, nationality and citizenship in 
     Puerto Rico as illegal and repressive. Mari Bras had U.S. 
     nationality and statutory citizenship based on birth in 
     Puerto Rico in 1927, until he went to the U.S. Embassy in 
     Caracas, Venezuela July 11, 1994 and renounced allegiance to 
     the United States and terminated his U.S. nationality in 
     accordance with 8 U.S.C. 1481(a)(5).
       It is standard U.S. embassy and INS procedure for a person 
     who renounces U.S. nationality to be allowed to return to the 
     U.S. pending certification of loss of nationality by the U.S. 
     State Department as required by federal statute. However, in 
     a high-profile media campaign and legal actions challenging 
     the enforcement of U.S. citizenship laws in Puerto Rico, Mari 
     Bras and his supporters have used his re-entry to this 
     country after renunciation of its citizenship as the basis 
     for a propaganda campaign asserting the existence of separate 
     Puerto Rican nationality.
       With regard to this claim of a separate Puerto Rican 
     nationality, it is necessary to note that under Article IX of 
     the Treaty of Paris the nationality of persons born in Puerto 
     Rico is that of the United States, and the citizenship status 
     of such persons is determined by Congress in the exercise of 
     its territorial clause powers (U.S. Const. article IV, 
     section 2, clause 3). Consistent with both the federal and 
     local constitutions, current federal law defines nationality 
     and citizenship of the residents of Puerto Rico as Congress 
     has deemed necessary. See, 8 U.S.C. 1402; 48 U.S.C. 733a.
       In the case of Gonzales v. Williams, 192 U.S. 1 (1904), the 
     U.S. Supreme Court stated that under the Treaty of Paris the 
     ``. . .nationality of the island became American . . .'' 
     Then, quoting Article IX of the treaty the court stated that 
     those inhabitants of Puerto Rico who did not elect continued 
     allegiance to Spain were held ``. . .to have adopted the 
     nationality of the territory in which they reside.'' Article 
     IX of the treaty goes on to state that ``. . . the civil 
     rights and political status of the native inhabitants. . 
     .shall be determined by the Congress.''
       Thus, Congress, has clear authority and responsibility to 
     define a form of territorial citizenship under the umbrella 
     of U.S. nationality as it deems appropriate. Under Section 7 
     of the Foraker Act of 1900 (31 Stat. 77), Congress conferred 
     the status of ``citizen of Puerto Rico'' for persons born in 
     the territory. Under Section 5 of the 1917 Jones Act (39 
     Stat. 961), Congress extended statutory U.S. citizenship to 
     those born in Puerto Rico.
       Under the Jones Act arrangement, retention of ``citizen of 
     Puerto Rico'' status was an option foreclosed to all who did 
     not exercise it in 1917. In addition, the statutory 
     citizenship extended by Congress was not permanently 
     guaranteed and conferred less-then-equal legal and political 
     rights compared to those born or residing in the states of 
     the union due to the limited application of the federal 
     constitution in an unincorporated territory. Downes v. 
     Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 
     138 (1904); Balzac v. People of Puerto Rico, 258 U.S. 298 
     (1922); Rogers v. Belei, 401 U.S. 815 (1971).
       Of course, states, territories and even counties or cities 
     can exercise local jurisdiction to confer purely local 
     ``citizenship'' under local laws. As discussed below in some 
     detail, under territorial law Puerto Rico still recognizes a 
     ``citizen of the Commonwealth of Puerto Rico'' status in the 
     exercise of local jurisdiction, but this is not a 
     nationality-based form of citizenship. See, Const. 
     Commonwealth of Puerto Rico, Art. IX, Sec. 5; 1 LPRA Sec. 7.
       Pursuant to the territorial clause and article I, Section 8 
     of the U.S. Constitution, the nationality and any derivative 
     nationality-based citizenship status of persons born in 
     Puerto Rico is determined exclusively by applicable federal 
     statute--currently 8 U.S.C. 1402, as noted above. Thus, there 
     is no separate or dual Puerto Rican nationality or 
     ``citizenship'' as that term is used in the context of the 
     domestic and international law of nationality and immigration 
     applicable to Puerto Rico, including all provisions of the 
     Immigration and Nationality Act.
       Consequently, Mari Bras is subject to the provisions of 
     federal immigration and nationality law with respect to his 
     nationality, including 8 U.S.C. 1481(a)(5) as it relates to 
     renunciation of U.S. nationality. Because Mari Bras 
     repudiated allegiance to the U.S. (the nation which currently 
     is recognized under international law and constitutionally as 
     exercising lawful sovereignty in the place where he was 
     born), it was a fairly routine matter for the Department of 
     State to determine that he lost U.S. nationality. As a 
     result, on November 22, 1995, the U.S. Department of State 
     certified his loss of U.S. nationality and citizenship.
       The federal court case Davis v. District Director, INS, 481 
     F. Supp. 1178 (1979) correctly establishes that when a person 
     loses U.S. nationality all forms of citizenship, including 
     local citizenship conferred by any political subdivision of 
     the nation, are lost as well. In that case the court properly 
     held that ``citizenship'' of the state of Maine did not 
     entitle the former U.S. citizen renunciant to enter the 
     United States, except upon compliance with alien entry 
     requirements.

[[Page E768]]

       The court in that case also ruled that Article 15 of the 
     Universal Declaration of Human Rights as well as other non-
     binding and non-self-executing international conventions do 
     supersede 8 U.S.C. 1481--the U.S. law under which 
     renunciation of this country's nationality and citizenship 
     is, in the words of the court, ``* * *a natural and inherent 
     right of all people.''
       In addition to the preceding legal context, the State 
     Department's certification of his loss of nationality and 
     citizenship was based on the fact that Mari Bras signed a 
     statement of understanding at the time the oath of 
     renunciation was administered establishing that he fully 
     understood the legal consequences of his actions, and that 
     the loss of nationality and citizenship was voluntary and 
     intentional. Thereupon, as he had expressly acknowledged in 
     writing in the statement of understanding, Mari Bras became a 
     stateless alien due to the lack of any other recognized 
     nationality.
       It was obvious from the propaganda campaign and legal 
     disputes that commenced immediately upon the return of Mari 
     Bras to Puerto Rico, however, that this was not a case of an 
     eccentric person relinquishing U.S. nationality for abstract 
     philosophical reasons or as a symbolic expression of 
     opposition to the United States. As explained below, this was 
     part of an orchestrated effort to create a conflict between 
     federal and local law. The objective was to undermine the 
     current political status of Puerto Rico and establish a de 
     facto separate sovereignty and nationality for persons born 
     in Puerto Rico without going through a democratic political 
     process of self-determination or constitutional change to 
     accomplish that result.
       In December of 1995 and March of 1996 there were press 
     reports in Puerto Rico and major mainland newspapers about 
     Maria Bras and other ``copy cat'' renunciants traveling into 
     and out of Puerto Rico on fake ``Puerto Rican passports'' 
     issued by advocates of separate nationality for persons born 
     in Puerto Rico. The press also quoted INS officials who 
     stated that these cases were being studied, but due to an 
     apparent lack of policy guidance nothing was done by U.S. 
     authorities to discourage the use of phony passports by 
     current or even former citizens, or to accurately inform the 
     public regarding the consequences of renunciation of U.S. 
     nationality and citizenship.
       To its credit, on February 13, 1996, the U.S. Department of 
     State responded to an inquiry from the government of Puerto 
     Rico with a statement establishing that Mari Bras is a 
     stateless alien. Even then, the responsible federal agencies 
     authorities did not choose in the case of Mari Bras to 
     enforce the laws enacted to protect the borders and the 
     sovereignty of the United States, as well as federal local 
     laws restricting or regulating voting, certain financial 
     transactions, and employment applicable to illegal aliens in 
     the United States. In part, this may have been due to an 
     incorrect reading of the applicable statue by local INS 
     officers, who reportedly were under the mistaken belief a 
     person who renounces must leave the U.S. before the loss of 
     citizenship becomes effective.
       However, in May of 1996 it was reported in the press that 
     Maria Bras would travel to Cuba. Soon after, photographs 
     appeared in the press of Mari Bras being embraced in the arms 
     of Fidel Castro on June 28, 1996, at the thirtieth 
     anniversary of an office in Havana which supports anti-U.S. 
     activities in Puerto Rico. It was after that event that he 
     was allowed to enter the U.S. once again, even though he had 
     no legal right or moral justification for seeking re-
     admission to this nation.
       In press report after press report in late 1995 and early 
     1996 the more grandiose dimensions of the Mari Bras scheme 
     were explained in great detail. According to Mari Bras and 
     his supporters, in addition to establishing that 
     international travel is possible using birth certificates and 
     phony travel documents (even after renouncing citizenship), 
     the plan was to establish a legal premise for the assertion 
     of separate nationality-based ``citizenship'' for persons 
     born in Puerto Rico. This was to be accomplished openly 
     through relinquishment of U.S. citizenship and subsequent 
     exercise of the right to vote in local elections conducted 
     under Puerto Rico law.
       In furtherance of this objective, Mari Bras confirmed his 
     voter registration in March of 1996 after he had lost U.S. 
     nationality and citizenship. However, his voter eligibility 
     was challenged by U.S. citizens born in Puerto Rico who were 
     qualified to vote under the Puerto Rico elections statute. 
     Like similar statues in every other state and territory, the 
     Puerto Rican election law requires U.S. citizenship in order 
     to vote in local elections, and on that basis the 
     qualification of Mari Bras to vote was challenged.
       The case to protect the voting rights of U.S. citizens 
     Puerto Rico was brought before the local election board, from 
     which it was passed to the territorial trial court on 
     procedural grounds. At that point the election officials of 
     the Commonwealth of Puerto Rico joined in the legal action to 
     uphold the local statute requiring U.S. citizenship to vote.
       Unfortunately, the trial judge--in an opinion that seems to 
     express separatist political sentiment more than it 
     interprets law--ruled that it was unconstitutional for the 
     Legislature of Puerto Rico to enact a statute requiring U.S. 
     citizenship to vote. The judge concluded that this somehow 
     discriminates unfairly against people born in Puerto Rico who 
     renounce U.S. citizenship. It is reported that after this 
     singular contribution to Puerto Rico jurisprudence the trial 
     judge retired.
       The case is now before the Supreme Court of Puerto Rico. If 
     the Supreme Court of Puerto Rico does not dispose of the case 
     in a manner consistent with the Puerto Rico Federal Relations 
     Act as approved by Congress and the voters of Puerto Rico in 
     1952, including the federal law under which the nationality 
     and citizenship of persons born in Puerto Rico under U.S. 
     sovereignty is determined and regulated, then the federal 
     courts and/or Congress will have to resolve the problem and 
     restore rule of law.
       Once the loss of citizenship was certified, the INS agents 
     in Puerto Rico should have given appropriate instructions, so 
     that Mari Bras would not be leading political rallies and 
     conducting seminars in Puerto Rico and New York in which he 
     demands that the U.S. flag be lowered before he speaks. 
     Instead of abusing the rights of a citizenship he has 
     forsaken in service to his ideology, Mari Bras should be 
     finding out just how good permanent living is in Cuba 
     under the regime of his comrade Fidel Castro.
       Similarly, even though support for the Puerto Rican 
     independence movement in local elections in Puerto Rico 
     consistently is somewhere between 3% and 4%, independence is 
     a valid future status option for the territory. It does not 
     help the independence movement to allow a person who is being 
     used by Fidel Castro to subvert the rule of law in Puerto 
     Rico and in the name of independence to make a mockery of 
     U.S. nationality and citizenship.
       Mari Bras has enjoyed a long period of freedom to use the 
     ordered system of liberty that other Puerto Ricans have died 
     to protect to bring about through juridical gimmicks a result 
     in Puerto Rico that he apparently believes he will never be 
     able to bring about through the voting process.
       Perhaps his loss of U.S. nationality and citizenship should 
     not have been certified due to the fact that Mari Bras 
     intended to retain nationality and citizenship of an area 
     that is within the sovereignty of the United States. How can 
     a person renounce the nationality of a country and at the 
     same time claim the nationality of territory under the 
     sovereignty of that country? If he genuinely is laboring 
     under the mistaken belief that there is a separate Puerto 
     Rican nationality, should the State Department have concluded 
     that he did not meet the intentionality test of 8 U.S.C. 
     1481(a)(5)?
       In this regard, however, the Congressional Research Service 
     has concluded that ``Although Puerto Rican residents who 
     renounce U.S. citizenship might argue that they intended to 
     renounce U.S. citizenship only if they actually acquired 
     Puerto Rican citizenship, Davis and other cases indicate that 
     courts have not found that such conditions and qualifications 
     in the motives of the renouncer are separate from and 
     invalidate the basic intent to relinquish U.S. citizenship.'' 
     CRS Memorandum, ``The Nature of U.S. Citizenship for Puerto 
     Ricans,'' American Law Division, March 26, 1996.
       The Mari Bras theory that a U.S. citizenship requirement 
     for voting violates natural law and the rights of man fails 
     not due to some over-reaching federal mandate, but as a 
     result of the principles set forth in the Preamble and 
     citizenship-related provisions of the Constitution of Puerto 
     Rico as approved by the voters in 1952. The local 
     constitution states: `'We consider as determining factors in 
     our life our citizenship of the United States of America and 
     our aspiration continually to enrich our democratic heritage 
     in the individual and collective employment of its rights and 
     privileges . . . ''
       The Preamble goes on to identify as an additional 
     ``determining factor'' in the life of Puerto Rico ``. . . our 
     loyalty to the principles of the Federal Constitution . . . 
     '' This is important for many reasons, including the fact 
     that it recognizes the requirement set forth in Section 3 of 
     P.L. 600 (48 U.S.C. 731d) of compatibility between local 
     constitutionally implemented measures and the federal 
     constitution and laws.
       As noted already, in the case of Davis v. District 
     Director, INS, 481 F. Supp. 1178 (1979), referred to in the 
     CRS analysis cited above, the court ruled that citizenship of 
     the state of Maine did not entitle the former U.S. citizen 
     who had made himself an alien by renunciation to remain in 
     the U.S. even if he agreed to reside only in Maine. Rather, 
     the court ruled that the alien must get a visa and petition 
     for permanent resident alien status or be subject to 
     exclusion. So it apparently will be in the Mari Bras case.
       Of course, the INS has better things to do than hunt down 
     and depot any of the approximately 100 ideological extremists 
     who renounce their citizenship for similar reasons each year, 
     especially when one thinks about the millions of other more 
     serious illegal alien cases. However, if Mari Bras keeps 
     going to Cuba to aid and abet the totalitarian collectivist 
     regime there, the day may come when he finds the door to his 
     homeland closed. If he ends up back in the country from which 
     his return travel originated, it will be his own doing.

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