KIRKPATRICK & LOCKHART LLP
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
April 9, 1998
Congressman George W. Gekas
U.S. House of Representatives
2410 Rayburn HOB
Washington, D.C. 20515
RE: U.S. Citizenship Renunciation Cases - Puerto Rico
Dear Congressman Gekas:
I read with great interest your statement in the Congressional Record of April 29, 1997. Subsequently, I have followed the matter to see what course events might follow. Attached is an update on developments in the Puerto Rican renunciation cases, which points out that the status quo, rather than separate sovereignty or statehood, may pose the greatest threat of separatist disputes.
It seems there is a faction that wants to convert the present commonwealth into a separate nation within the United States. The elected Governor and Legislature have rejected that idea, but the "nation-within-a-nation" separatists seem at least temporarily to have found some sympathy in the local courts.
The U.S. State Department seems to be sorting the problem out, and so this report is somewhat timely. I hope you find it useful.
Sincerely
Dick Thornburgh
STATEMENT OF DICK THORNBURGH:
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 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 like 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 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 national 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 Lozada 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, 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 meet 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 statue 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 a 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 the 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 can not be ended without the consent of Puerto Rico.
The opinion of the Federal Court of Appeals in Davis, 481 F. Supp at 1178 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 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. 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 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 is 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 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 Sates. 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 of 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 Lozada 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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