Jus Soli Citizenship
On 23 February 1948 Fernando Mallorga, a Puerto Rican merchant residing in La Habana, Cuba, wrote to the Governor of Puerto Rico requesting assistance in re-establishing his U.S. citizenship in order to acquire a U.S. passport. Mr. Mallorga was born in 1893, in the town of Mayagüez and was subsequently naturalized under the terms of the Jones Act of 1917. Sometime after 1940, Mr. Mallorga began to travel between the Caribbean and the United States for business purposes. Apparently, Mr. Mallorga worked for the Cuban based firm Victor G. Mendoza Company, S.A. In 1946, while residing in the Dominican Republic, Mr. Mallorga acquired a U.S. passport with a two-year expiration date. Following the expiration of his passport in 1948, he approached the U.S. consulate in La Habana to acquire a new passport in order to travel to the United States to conduct business transactions. However, the U.S. consulate informed Mr. Mallorga that he had lost his citizenship because he had continuously resided outside of the United States for more than 5 years. In a letter dated March 4, 1948, Haydee F. San Miguel, the Executive Secretary for the Governor of Puerto Rico, responded that the Puerto Rican governor could not help Mr. Mallorga because Puerto Ricans naturalized under the Jones Act of 1917 were subject to the denaturalization provision of Section 404(c) of the Nationality Act of 1940, which provided for the automatic expatriation of naturalized citizens residing outside of the United States for a period longer than 5 years.
The citizenship provisions of the Nationality Act of 1940 replaced the citizenship provision of the Jones Act. As noted elsewhere, the Jones Act of 1917 extended a derivative form of paternal or jus sanguinis (blood right) citizenship to Puerto Rico without changing the island’s territorial status. The Jones Act provided for the naturalization of Puerto Ricans. In contrast, the Nationality Act of 1940 changed Puerto Rico’s territorial status for the sole purpose of extending birthright or jus soli citizenship to the island. Stated differently, whereas birth in Puerto Rico prior to 1940 enabled Puerto Ricans to acquire a naturalized citizenship, persons born after acquired a birthright citizenship tantamount to that of a native or natural-born U.S. citizen. Congress subsequently amended the Nationality Act in 1948. The Immigration and Nationality Act of 1952 merely adopted the language of the Nationality Act. Since January 13, 1941, when Congress officially enacted the Nationality Act of 1940, birth in Puerto Rico is tantamount to birth in the United States.
The Nationality Act of 1940 contained three citizenship provisions addressing the status of Puerto Ricans. The first provision, Section 101(d) established that “(t)he term ‘United States’ when used in a geographical sense means the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the United States” (54 Stat. 1137). According to the provision, albeit for the sole purpose of this law, Puerto Rico was incorporated to or became a part of the United States. After the enactment of the Nationality Act of 1940, birth in Puerto Rico was the same as birth in the United States. It followed that persons born in Puerto Rico acquired a birthright or jus soli citizenship under the terms of Section 201(a) of the Nationality Act.
In addition, the Nationality Act applied the rule of jus soli or birthright citizenship to Puerto Rico retroactively to 11 April 1899, the date in which the United States formally annexed the island. Specifically, Section 202 established that:
All persons born in Puerto Rico on or After April 11, 1899, subject to the jurisdiction of the United States, residing on the effective date of this Act in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are hereby declared to be citizens of the United States (Nationality Act, 54 Stat. 1137, 1139).
Stated differently all Puerto Ricans born in Puerto Rico between 11 April 1899 and the enactment of the Nationality Act of 1940 and residing in Puerto Rico at the time were retroactively granted a native or natural-born citizenship status.
Fixing the Denaturalization Exception
However, in 1941, then Puerto Rican Resident Commissioner Bolivar Pagán (S/C-PR) began to introduce an amendment to the Nationality Act of 1940 to protect Puerto Ricans residing outside of the United States (mostly in Latin America) from the automatic denaturalization provision of the new law. As noted above, Section 404(c) provided for the automatic denaturalization of naturalized citizen who resided outside of the United States for 5 years or more. Resident Commissioner Pagán’s bill sought to protect Puerto Ricans who had acquired their citizenship under the BINA of 1906 or the Jones Act of 1917 and who were residing outside of Puerto Rico at the time of the enactment of the Nationality Act, from automatic denaturalization. Although it is not clear how many Puerto Ricans were subsequently denaturalized, public records at the Archivo General de Puerto Rico show that between 1941 and 1948 several dozens of Puerto Ricans were denaturalized under the terms of Section 404(c).
Between 1941 and 1948, or between the 77th and 80th Congresses, federal lawmakers debated upwards of 13 bills containing citizenship provisions. Most of these bills, however, were amendments to the Nationality Act of 1940, but some were also status bills for Puerto Rico with an array of citizenship provisions. On 25 June 1948, Congress enacted legislation resolving this problem and amending both Section Five of the Jones Act and Section 404(c) of the Nationality Act. The 1948 Amendment established that:
Sec. 5b. Section 404(c) of the Nationality Act of 1940 (U.S.C. title 8, sec. 804(c)), shall not be applicable to persons who acquired citizenship under the provisions of sections 5 and 5a of this Act." This amendment to be retroactive to October 13, 1945 (Pagán Amendment, 62 Stat 1015).
Stated differently, persons born in Puerto Rico between 11 April 1899 and 13 January 1941 would no longer be considered naturalized citizens. Congress retroactively declared that Puerto Ricans were now native-born citizens for purposes of the prevailing U.S. citizenship, naturalization, and immigration laws.
The Immigration and Nationality Act of 1952 (INA), the current source of law defining the citizenship status of Puerto Ricans, essentially copied the principles established in the Nationality Act of 1940. To be sure, the accompanying House Report on the original legislation states that “(t)he citizenship status of persons born in and living in Puerto Rico… is set out in the Nationality Act of 1940 and is carried forward in the bill” (U.S. Congress 1952, H. Rept. 1365, 76). Suffice it to say that the 1952 law affirmed the notion that since 1941 persons born in Puerto Rico acquired a jus soli or birthright citizenship status tantamount to that of a native-born or person born in the United States.
Between 1952 (86th Congress) and 1988 (100th Congress), federal lawmakers debated six bills containing citizenship provisions for Puerto Rico. However, like most bills debated in the aftermath of the INA of 1952, these were status and plebiscitary bills for Puerto Rico, not citizenship bills. As the legislative history of the citizenship bills suggests, the question of the citizenship status of persons born in Puerto Rico was essentially resolved in Congress between 1940 and 1948. Birth in Puerto Rico was tantamount to birth in the United States for the sole purpose of conferring a native-born citizenship status on Puerto Ricans.
In sum, the Nationality Act of 1940 established that birth in Puerto Rico was tantamount to birth in the United States. Since January 13, 1941 persons born in Puerto Rico acquire a birthright or jus soli citizenship. They are considered native or natural-born citizens of the United States. Congress affirmed this interpretation with the 1948 Pagán Amendment and the Immigration and Nationality Act of 1952. Congress has not enacted any other citizenship provision for Puerto Rico since 1952.