[Congressional Record Volume 144, Number 56 (Thursday, May 7, 1998)]
[Extensions of Remarks]
[Pages E801-E803]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


     UNDERSTANDING U.S. NATIONALITY AND CITIZENSHIP IN PUERTO RICO

                                 ______
                                 

                          HON. GEORGE W. GEKAS

                            of pennsylvania

                    in the house of representatives

                         Thursday, May 7, 1998

  Mr. GEKAS. Mr. Speaker, I want to submit for the Record a letter 
dealing with U.S. citizenship and Puerto Ricans dated April 9, 1998, 
which I received during out recent recess. Its author, Dick Thornburgh, 
is well-known as a former two-term Governor of my home state of 
Pennsylvania and as our former U.S. Attorney General.
  I join Governor Thornburgh in praising Federal District Court Judge 
Stanley Sporkin and the State Department for their proper applications 
of federal immigration laws. In an opinion and order filed April 23, 
1998, Federal District Court Judge Stanley Sporkin upheld the policy 
adopted by the U.S. Department of State on the question of whether 
persons with U.S. nationality and citizenship based on birth in Puerto 
Rico can renounce that status and remain in Puerto Rico without a visa. 
In a ruling that was legally and morally correct, the Court said ``no'' 
to the absurd proposition that a person who becomes an alien under 
federal immigration and nationality law applicable in Puerto Rico in 
order to become an alien does not have to comply with federal law 
requiring aliens to get a visa to remain in the United States.
  The right of U.S. citizenship and all the benefits it provides should 
not be the subject of mockery. American citizenship refers to more than 
just status. It exemplifies all this country represents--the spirit of 
liberty and democratic values. I commend this letter for all to read.

 Statement of Dick Thornburgh on the Dangers of Judicial Usurpation of 
               Puerto Rico's Political Self-Determination

       Puerto Rico has been under the sovereignty of the United 
     States for one hundred years, and Puerto Ricans have been 
     citizens of the United States for 81 years. However, the 
     political status of Puerto Rico remains unsettled and 
     advocates within Puerto Rico of separatism under the American 
     flag are working to exploit that political uncertainty. The 
     tactics employed by these advocates harms all U.S. citizens--
     whether they reside in one of the states of the Union or in 
     Puerto Rico. Separatists within Puerto Rico have been forced 
     to find a way around the 95% of Puerto Ricans who want U.S. 
     citizenship, and they have found support among local judges 
     appointed by the last separatist governor of Puerto Rico.
       The will of the people of Puerto Rico was reflected on 
     November 17, 1997, when the Governor of Puerto Rico signed 
     into law a statute approved by the Legislature of Puerto Rico 
     defining a ``citizen of Puerto Rico'' as a person with United 
     States nationality and citizenship who is a lawful resident 
     of Puerto Rico. This new law affirmed the principles of U.S. 
     constitutional federalism as embodied in the local Puerto 
     Rican constitution, recognized one U.S. nationality based 
     citizenship under the American flag, and clearly expressed 
     the loyalty and patriotism of the 3.8 American citizens of 
     Puerto Rico.
       In contrast to the measure adopted by elected leaders, on 
     November 18, 1997, the local territorial court issued a 
     ruling suspending enforcement of a decades old statute 
     requiring U.S. citizenship in order to vote in local 
     elections in Puerto Rico. A majority on the territorial court 
     was appointed by a former governor who supports a perpetual 
     ``commonwealth'' status for Puerto Rico in which the 
     territory would have some of the attributes of both a state 
     of the union and a separate nation. The local court's 
     decision to exempt Juan Mari Bras, a pro-Castro socialist who 
     renounced his U.S. nationality, from the local U.S. 
     citizenship requirement for voting is based on a doctrine 
     that a separate legal nationality for Puerto Ricans exists 
     within the U.S. constitutional system. While there are many 
     nationalities within the U.S. in the sense of cultural 
     heritage and identity, there is and can be only one legal and 
     constitutional form of national citizenship.
       In addition to running afoul of the one legal nationality 
     principle, the local Supreme Court's decision also 
     constitutes an official action by a co-equal branch of the 
     territorial government to nullify application of federal law. 
     Specifically, the local court ruled that a person who has 
     been certified by the State Department to be an alien can 
     nonetheless remain in a territory of the U.S. without a visa 
     or other legal authority from the U.S. The Puerto Rican court 
     held that a non-citizen could remain in Puerto Rico and enjoy 
     all the rights of a separate Puerto Rican nationality and 
     citizenship--even though he has not complied with the 
     immigration and nationality laws of the United States.
       Aware of the local court's decision, the State Department 
     adopted a policy of denying certification of loss of 
     citizenship to persons who intend to remain in Puerto Rico 
     based on a claim of local citizenship. On January 27, 1998, 
     in the case of a ``copy cat'' renunciation by one Alberto 
     Lozada Colon, the Department of State reiterated the 
     fundamental point that the U.S. citizenship of Puerto Ricans 
     is supreme to their citizenship of the constituent territory 
     of the U.S. This will prevent further ``copy cat'' cases and 
     provides the basis for bringing the previous cases into 
     compliance with U.S. immigration law, thereby rendering 
     meaningless the reckless action by the Puerto Rican court in 
     contravention of federal supremacy.
       However, this episode underscores the importance of 
     resolving Puerto Rico's status. H.R. 856, as approved by the 
     House on March 4, 1998, would provide a process to end the 
     current ambiguities about Puerto Rico, and it is hoped the 
     Senate will act soon on this matter. To help sort out the 
     issues of nationality and citizenship related to status, the 
     following principles and legal requirements must be 
     recognized.
       Similar to a State of the Union, Puerto Rico has sufficient 
     sovereignty over its internal affairs under the local 
     constitution to prescribe the qualifications of voters. 
     However, Puerto Rico's local sovereignty is a statutory 
     delegation of the authority of Congress to govern 
     territories, and is not a vested, guaranteed or permanent 
     form of sovereignty such as the states have under the 10th 
     Amendment. Even if it were, no state of the Union, much less 
     an unincorporated commonwealth territory, has the power to 
     declare that the citizenship of the state or territory 
     survives legally effective renunciation of U.S. nationality 
     and citizenship (see, discussion below of Davis v. District 
     Director, 481 F. Supp. 1178 (1979). Yet, that is precisely 
     what the territorial court in Puerto Rico has attempted to do 
     in the case of Juan Mari Bras.
       While Puerto Rico has powers of local government which in 
     some respects are like the

[[Page E802]]

     states to the extent consistent with federal law and the U.S. 
     Constitution, Puerto Rico does not have the sovereignty or 
     constitutional authority to ignore the supremacy clause of 
     the federal constitution by creating a separate nationality 
     (see, Rodriguez v. Popular Democratic Party, 457 U.S. 1 
     (1982). Congress alone determines and regulates nationality 
     under Article I, Section 8 of the Constitution. In the local 
     court's ruling in the Mari Bras case, however, a person 
     certified by the U.S. Department of State to be an alien 
     under U.S. immigration laws, and who has refused to obtain a 
     visa in compliance with the Immigration and Nationality Act, 
     is supposedly recognized as having the right to reside in the 
     United States, including Puerto Rico, and enjoy the rights 
     and privileges of a fictitious separate Puerto Rican 
     nationality citizenship.
       Fortunately, we do not have to wait for an appeal to the 
     U.S. Supreme Court to correct this miscarriage of justice 
     which infringes upon the voting rights of the U.S. citizens 
     of Puerto Rico who are legally qualified to vote under 
     applicable law. Nor do we need to wait for Congress to 
     restore the rule of law by confirming that under existing 
     federal law (8 U.S.C. 1402) there is only one nationality or 
     national citizenship for people born in Puerto Rico as long 
     as it remains within the sovereignty of the United States. 
     For Congress already has provided the statutory authority for 
     the Executive Branch of the federal government to preserve 
     the constitutional and federal legal order applicable to 
     Puerto Rico in these matters. As already mentioned, in the 
     Lozado Colon case the U.S. State Department has rectified the 
     anomaly of the Mari Bras case and determined that the 
     requirements of 8 U.S.C. 1481(a)(5) for loss of U.S. 
     nationality are not satisfied if the person renouncing 
     intends to remain in the U.S. without a visa based on a claim 
     of Puerto Rican nationality.
       Specifically, either the individual who has been certified 
     as an alien must be compelled by the INS to comply with the 
     requirements of the Immigration and Nationality Act for his 
     continued presence in the United States, or the State 
     Department must vacate the certification that he expatriated 
     himself in a legally effective manner under 8 U.S.C. 
     1481(a)(5). As discussed below, it has to be one or the 
     other.
       Last year a statement by Congressman George Gekas appeared 
     in the CONGRESSIONAL RECORD (143 Cong. Rec. E766 (daily ed. 
     April 29, 1997) (statement of Rep. Gekas) about creeping 
     separatism in Puerto Rico's local judiciary. This wake up 
     call was sounded when a local trial court judge ruled that it 
     was unconstitutional under the Constitution of the 
     Commonwealth of Puerto Rico for the legislative branch of the 
     local government to make U.S. citizenship a voter eligibility 
     requirement in elections in Puerto Rico--as it is in other 
     states and territory in the United States.
       The ruling of the trial court was that a radical socialist 
     named Juan Mari Bras, who had U.S. citizenship granted by a 
     federal statute extending that privilege to people born in 
     Puerto Rico, should be allowed to vote in elections even 
     though he had gone to Venezuela and taken an oath renouncing 
     his U.S. nationality and citizenship in the manner prescribed 
     by Congress. Mari Bras then went to Cuba to show solidarity 
     with the regime there, and returned triumphantly to Puerto 
     Rico. He was admitted back into U.S. territory by INS 
     officials, based on his U.S. birth certificate, without 
     disclosing that the State Department had issued an official 
     document certifying he was a stateless alien with no legal 
     right to enter or reside in the United States without an 
     appropriate visa.
       Not only did he assert exemption from visa requirements 
     based on a claim of a separate Puerto Rican nationality, he 
     then sought certification of his eligibility to vote, and was 
     challenged by U.S. citizen voters who do not want their own 
     votes diluted by non-citizens ineligible to vote under Puerto 
     Rican law. Since the elected representatives of the people of 
     Puerto Rico in the territorial legislature, had decided many 
     years ago to make U.S. citizenship a voter qualification 
     under the local election law, the trial judge threw out that 
     statute so the expatriate could cast a ballot. That ballot 
     was sealed pending an appeal of the case to the territorial 
     Supreme Court, which ultimately ordered that the ballot be 
     counted based on the local court's recognition of a separate 
     Puerto Rican nationality and non-recognition of Federal law.
       In the statement of April 29, 1997, cited above, Mr. Gekas 
     touched upon an argument which independently has been 
     developed further by the State Department in its own approach 
     to a ``copy cat'' renunciation case involving an individual 
     named Alberto Lozada Colon. Specifically, now that we know 
     what Mari Bras was actually intending when he executed his 
     oath of renunciation, it may well be that the U.S. State 
     Department should evaluate whether he actually had formed the 
     intention required to meet the criteria of 8 U.S.C. 
     1481(a)(5). Stated simply, the basis upon which his 
     application for certification of loss of nationality should 
     be re-evaluated, and perhaps rescinded, is as follows:
       The right to reside in territory under the sovereignty of 
     the United States, including Puerto Rico, arises from U.S. 
     nationality and citizenship or, in the case of non-citizen 
     aliens, compliance with the visa requirements of the federal 
     Immigration and Nationality Act.
       In accordance with 8 U.S.C. 1481(a), which prescribes the 
     procedure for renouncing citizenship in a legally effective 
     manner, Mari Bras executed an oath voluntarily and 
     intentionally relinquishing ``all rights and privileges'' of 
     United States nationality and citizenship.
       Since we now know Mari Bras intended to continue to enjoy 
     the right to reside in the United States as a non-citizen 
     alien under federal immigration law without complying with 
     applicable visa requirements, we can presume that he did not 
     truly intend to renounce and cease to enjoy ``all rights and 
     privileges'' of United States nationality and citizenship.
       Consequently his oath of renunciation does not mean the 
     statutory criteria of 8 U.S.C. 1481(a), which, again, 
     requires intent to relinquish all rights and privileges of 
     U.S. nationality and citizenship.
       Clearly, Mari Bras has not honored his oath of 
     renunciation, and his certification of loss of U.S. 
     nationality and citizenship should be vacated. He should not 
     be allowed to benefit from a false oath, or to act in a 
     manner which contradicts his oath, without consequence and 
     legal accountability. For there is only one nationality and 
     nationality-based citizenship in the United States, including 
     Puerto Rico. There is no separate Puerto Rican nationality or 
     nationality-based citizenship which enables Mari Bras to 
     reside in Puerto Rico and enjoy the rights of citizenship in 
     violation of federal law.
       If Mari Bras is an alien he must comply with federal law 
     regulating the presence of aliens in the United States. If he 
     has not truly expatriated himself due to lack of actual 
     intent to live as a alien in Puerto Rico then his hoax should 
     be brought to an end by proper action to enforce the criteria 
     of 8 U.S.C. 1481(a)(5). This statute and the implementing 
     regulations promulgated by the Secretary of State (22 CFR 
     50.40-50.50) require the accredited diplomatic officer at the 
     U.S. Embassy involved to ``determine'' that the statutory 
     criteria for effective renunciation exists, and require the 
     Secretary of State to ``approve'' the certification of same. 
     If the declarations made by the renouncing party before, 
     during or after the certification, or the actions of the 
     person after certification, establish that the requirements 
     of the statute for effective renunciation have not been met, 
     then the Secretary of State has a responsibility to prevent 
     abuse of the renunciation procedure for purposes of violating 
     or evading Federal immigration laws.
       The Supreme Court of the Commonwealth of Puerto Rico based 
     its reasoning on the concept that there is a Puerto Rican 
     citizenship separate from U.S. citizenship that arises from 
     birth in Puerto Rico under U.S. sovereignty. This citizenship 
     is not merely residency or the status of a person subject to 
     the jurisdiction of the Commonwealth of Puerto Rico. Rather 
     it is a separate nationality that exists within U.S. 
     nationality. Of course, the court found no support in the 
     text of Puerto Rican statutes, the Puerto Rican Constitution, 
     or the U.S. Constitution. In its convoluted opinion, the 
     court is saying one thing and doing another in at least two 
     ways.
       First, while the court pretends to refrain from declaring 
     the local statute invalid, the court invalidates the statute 
     by amending it in contravention of the Legislature's 
     expressed intent. Thus, instead of affirming the trial court 
     in declaring the statute unconstitutional because its clear 
     language would prevent Puerto Rican born Mari Bras from 
     voting, the court states that it would be unconstitutional if 
     the statute were to be enforced in the case of Mari Bras.
       The court's ruling amounts to nothing less than a 
     suspension of the rule of law under local constitution. The 
     effect is that the statute is constitutional only if it is 
     not enforced in the case of a person to whom it applies, so 
     the court avoids making a constitutional determination by 
     amending rather than interpreting the statute.
       Second, the court attempts to delimit the constitutional 
     nature of this separate Puerto Rican nationality by claiming 
     that it exists within the framework of the United States-
     Puerto Rico relationship and is not equivalent to citizenship 
     of an independent country. At the same time, the court is 
     attempting to establish a separate constitutional nationality 
     and legal citizenship which has rights and privileges 
     separate from but duplicating the rights and privileges of 
     U.S. nationality and citizenship in Puerto Rico. This 
     alternative nationality and citizenship is claimed by the 
     Puerto Rican separatists as a right binding on the U.S. in 
     perpetuity which cannot be ended without the consent of 
     Puerto Rico.
       The opinion of the Federal Court of Appeals in Davis, 481 
     F. Supp. 1178 (1979), includes an excellent explanation of 
     why the separate-state-citizenship-as-separate-nationality 
     argument must fail in the case of the states of the union. 
     Certainly a territory with a local commonwealth constitution 
     authorized by Act of Congress (P.L. 81-600) does not have 
     greater sovereignty than a state of the Union. While the 
     people of Puerto Rico consented to the establishment of the 
     Commonwealth of Puerto Rico structure of local government 
     with respect to the internal affairs of the territory, this 
     does not create a local sovereignty or a basis for separate 
     nationality and citizenship superior to that of the states of 
     the Union yet that is what the result would be if, as the 
     Puerto Rico Supreme Court has ruled, ``citizenship of 
     Puerto Rico'' constitutes a form of citizenship superior 
     to that of citizenship of a state of the Union.
       Thus, those who argue that Puerto Rico could become a 
     Quebec-like situation if it is

[[Page E803]]

     ever admitted as a state had better recognize that the real 
     danger of a Quebec-like problem is if the current ambiguous 
     status continues and this nation-within-a-nation ideology is 
     imposed by local authorities without a clear choice by the 
     people based on a Federal policy to define the current status 
     and options for change accurately. The local judiciary's 
     ruling in this case is an attempt to usurp the authority of 
     Congress under the territorial clause in Article IV, Section 
     3, Clause 2 and Section 8 of Article I to determine the 
     nationality and nationality-based citizenship of persons born 
     in Puerto Rico. That authority also is recognized in Article 
     IX of the Treaty of Paris under which the U.S. became 
     sovereign in Puerto Rico. The United States has not ceded or 
     restricted that authority by agreeing to establish internal 
     self-government under the commonwealth structure.
       The United States gave the mechanisms of internal self-
     government in the territory the chance to resolve this 
     problem under local law by sorting out the mess and 
     conforming local law to federal law. The elected co-equal 
     branches of government acted responsibly and consistent with 
     the federal and local constitutions. Unfortunately, the 
     territorial court of last resort failed the test. Now this 
     has become a political question which must be resolved by the 
     political branches of the Federal government.
       The failure of the judicial branch of the local 
     constitutional government to respect the separation of powers 
     under the local constitution does not bode well for the 
     viability of continued territorial status under the 
     commonwealth structure. The court's ruling in this case 
     suggests that the present status quo is not a permanent 
     solution to the question of Puerto Rico's political status.
       However, the territorial commonwealth structure cannot be 
     made acceptable by defining it as something other than what 
     it really is. Revisionist judicial rulings which attempt to 
     transform unincorporated territory status into a form of 
     permanent statehood without going through the admissions 
     process under Article IV of the federal constitution, and at 
     the same time seek separate nationality do nothing to clarify 
     Puerto Rico's political future. It is becoming more clear 
     every day that either statehood or separate nationhood are 
     the only viable solutions to the problem of Puerto Rico's 
     political status.
       Clearly, Puerto Rico is not a state, but an internally 
     self-governing territory of the United States. Likewise, the 
     ``people of Puerto Rico'' are not a separate nationality, but 
     a body politic consisting of persons with United States 
     nationality and citizenship who reside in Puerto Rico. This 
     includes those born there and those who were born or 
     naturalized in a state of the union and now reside there. 
     See, 48 U.S.C. 733; also Gonzales v. Williams, 192 U.S. 1 
     (1904).


                               CONCLUSION

       The local election law in Puerto Rico requiring U.S. 
     citizenship to vote in local elections was enacted by the 
     democratically elected representatives of the people. The 
     local statute approved by the Legislature of Puerto Rico 
     properly recognizes that only the United States can define 
     and confer nationality and citizenship on people born in 
     Puerto Rico as long as it is within U.S. sovereignty.
       The attempt of local courts to recognize, and thereby 
     exercise the sovereign power to create, an alternative 
     separate nationality and citizenship status in lieu of the 
     federally defined status, and to impose non-citizen voting on 
     the people of Puerto Rico without their consent, has been 
     repudiated by the Federal government through the State 
     Department's action in the Mari Bras ``copy cat'' case of 
     Lazada Colon.
       Only if the people of Puerto Rico, acting through their 
     constitutional process and in an exercise of self-
     determination, requested that the U.S. Congress approve 
     legislation to end the current U.S. nationality and 
     citizenship of persons born in Puerto Rico, and Congress in 
     fact does so, would a different result appear to be 
     constitutionally possible.
       In that event, presumably, a process leading to separate 
     sovereignty, nationality and citizenship for Puerto Rico 
     would commence. Previously, neither the electorate in Puerto 
     Rico nor the local legislature have expressed significant 
     levels of support for that approach to resolving the ultimate 
     status of Puerto Rico. Inevitably, the decision must be made 
     by the people of Puerto Rico through a process of self-
     determination in a clear and transparent election. Judicial 
     usurpation of the process of self-determination harms all of 
     us.

     

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