Jus Soli Citizenship
In other words, this section will in effect
apply the rule of jus soli to Puerto Rico
as of the date of its annexation to the
United States, treating Puerto Rico
for such purpose as an incorporated
territory of the United States.
President Franklin D. Roosevelt’s Committee
to Review the Nationality Laws of the United States,
Hearings for H.R. 9980 (1940)
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 4 March 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 five years.
As noted in the previously, Section 5 of the Jones Act of 1917 initially extended a derivative form of paternal or jus sanguinis (blood right) citizenship to Puerto Rico without changing the island’s territorial status. However, the 1934 amendment, Section 5(b) introduced a territorial form of birthright citizenship limited to Puerto Rican citizens. Nonetheless, in all its iterations, the citizenship provision of the Jones Act of 1917 only conferred a naturalized form of citizenship subject to the prevailing immigration and naturalization laws of the United States. In 1940, Congress began to enact legislation that conferred a native-born citizenship status on persons born in Puerto Rico and replaced the citizenship provision of the Jones Act of 1917.
On 25 April 1933, President Franklin D. Roosevelt issued an executive order creating a committee comprised of six representatives from the Departments of State, Labor, Justice “to review the nationality laws of the United States, to recommend revisions, and to codify the laws into one comprehensive nationality law for submission to the Congress.” The ensuing committee (hereinafter President’s Committee Report) drafted a comprehensive code which was subsequently enacted by Congress as the Nationality Act of 1940. This national law included provisions to address the administrative problems created by the Jones Act citizenship and Puerto Rico’s unincorporated territorial status more generally. The President’s Committee recommendations for Puerto Rico were accepted with little debate and no substantive modifications. The Nationality Act, a statute, was the first of three citizenship laws that extended the rule of jus soli or birthright citizenship to Puerto Rico.
The President’s Committee submitted a draft of the Nationality Act to President Roosevelt on 1 June 1938. In the accompanying letter of submittal, Secretary of State Cordell Hull, Attorney General Homer Cummings, and Secretary of Labor Frances Perkins wrote “(s)ince the citizenship status of persons born in the United States and the incorporated territories is determined by the fourteenth amendment to the Constitution, the proposed changes in the law governing acquisition of nationality at birth relate to birth in unincorporated territories and birth in foreign countries to parents one or both of whom have American nationality” (President’s Committee Report 1938, v). Stated differently, while the President’s Committee believed that the Citizenship Clause was the constitutional source of jus soli citizenship legislation in the states and incorporated territories, it also recognized unincorporated territories were not located in the United States for purposes of the first sentence of the 14th Amendment. The President’s Committee believed that the 14th Amendment was the only constitutional source of jus soli citizenship and that incorporated territories were located within the United Sates for purposes of the Citizenship Clause.
The Nationality Act of 1940 contained two citizenship provisions for Puerto Rico. The first provision extended the rule of jus soli or birthright citizenship to Puerto Rico. The Nationality Act began by establishing that Puerto Rico became a part of the United States for the purposes of this law only. Section 101(d) established that the “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, 1138). The President’s Committee Report explained the intent of this provision in the following terms:
In bringing the Virgin Islands within the term “United States” for purposes of acquisition of nationality, and for such purposes treating them as if they were incorporated with the continental United States, this code follows the act of March 2, 1917 (39 Stat 953, 965), and it extends the same advantages to Puerto Rico, where, considering the express provisions of the act of June 27, 1934, it seems clear that the common law rule of acquisition of nationality through the fact of birth within the territory and jurisdiction of the United States (jus soli) does not apply. According to the act mentioned, persons born in Puerto Rico acquire citizenship of the United States at birth only in case they are “not citizens, subjects, or nationals of any foreign power.” In the proposed new law this condition is eliminated, and birth in Puerto Rico will have the same effect as birth in the continental United States” (President’s Committee Report 1938, 4).
To become a part of the United States, the authors of Section 101(d) reasoned, Puerto Rico needed to be selectively treated as an incorporated territory. In addition, Section 102(a) unequivocally described Puerto Rico as a “State” for the sole purpose of defining the island as a part of the United States. This interpretation was affirmed by Representative Edward H. Rees (R-KS) during the congressional hearings for the Nationality Act.
When crafting Section 101(d) the President’s Committee also invoked the precedent established by the U.S. Virgin Islands (U.S.V.I.). The United States purchased and annexed the U.S. Virgin Islands in 1916. In 1927, Congress enacted a citizenship statute both providing for the retroactive collective naturalization of all persons born in the U.S.V.I since 17 January 1917 and established the extension of jus soli citizenship. The accompanying House Report explained that Section Three of the U.S. Virgin Islands’ citizenship statute of 1927 “provides for persons hereafter born in the Virgin Islands of the United States [sic] the rule of citizenship already provided in the fourteenth amendment to the Constitution of the United States” (U.S. Congress 1927, H. Rept. 2093, 3). Stated differently, according Representative Edgar R. Kiess (R-PA), the author of the report, the Citizenship Clause of the Fourteenth Amendment was the constitutional source of Section Three, the birthright citizenship provision of the U.S. Virgin Islands’ citizenship statute of 1927. It also means that Congress began to enact birthright citizenship legislation anchored on the Citizenship Clause of the 14th Amendment to unincorporated territories in 1927.
Having established that Puerto Rico was a part of the United States for the purposes of this legislation, the Nationality Act applied the rule of jus soli to Puerto Rico under the terms of Section 201(a). According to the President’s Committee Report:
Subsection (a), which it is to replace, is in effect a statement of the common-law rule, which has been in effect in the United States from the beginning of its existence as a sovereign state, having previously been in effect in the colonies. It accords with the provision in the fourteenth amendment to the Constitution of the United States (President’s Committee Report 1938, 7).
During the congressional hearings, testifying on behalf of the President’s Committee, Richard W. Flournoy, an assistant legal adviser for the State Department, noted that the language and logic of Section 201(a) was “taken of course from the fourteenth amendment to the Constitution” (U.S. Congress 1940, Hearings, H.R. 9980, 38). Federal lawmakers did not object this interpretation. The Citizenship Clause of the 14th Amendment became the constitutional source for Section 201(a) of the Nationality Act of 1940. Since then, birth in Puerto Rico has been tantamount to birth in the United States.
The Nationality Act contained a second citizenship provision for persons born in Puerto Rico before 1940. Section 202 retroactively amended Section 5 of the Jones Act of 1917 and all other citizenship and naturalization laws enacted between 11 April 1899, and 13 January 1941 granting these persons a territorial citizenship at birth. 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 (54 Stat. 1137, 1139).
Stated differently all Puerto Ricans born in Puerto Rico between the ratification of the Treaty of Paris 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.
Again, the President’s Committee Report summarized the intent of the law in the following manner:
This section is designed to do what is believed to have been intended by those who sponsored the bill which became the existing law concerning nationality in Puerto Rico, that is, the act of Congress of June 27, 1934. The latter does not apply the jus soli to persons born in Puerto Rico, since it expressly excepts children born in the island of parents who are citizens or subjects of a foreign state. The proposed new provision will remedy this. In other words, this section will in effect apply the rule of jus soli to Puerto Rico as of the date of its annexation to the United States, treating Puerto Rico for such purposes as an incorporated territory of the United States (President’s Committee Report 1938, 11).
This provision was designed to correct or perhaps clarify the 1934 amendment to the Jones Act and was applied to previously naturalized Puerto Ricans. Naturalized Puerto Ricans were retroactively granted citizenship at birth status, albeit via a special statute. Again, no clear objections to this provision were raised during the relevant congressional debates.
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) and who had left Puerto Rico prior to the enactment of the Nationality Act from the automatic denaturalization provision of the new law. Section 404(c) provided for the automatic denaturalization of naturalized citizen who resided outside of the United States for five 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 at least several dozens of Puerto Ricans were denaturalized under the terms of Section 404(c).
On 25 June 1948, Congress enacted legislation resolving the latter problem by amending both Section 5(b) of the Jones Act and Section 404(c) of the Nationality Act. The Pagán Amendment of 1948 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 (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.
Native-Born Citizenship
In 1940, Congress replaced the citizenship provision of the Jones Act of 1917 with legislation conferring birthright of jus soli citizenship to persons born in Puerto Rico. According to Congress, the Citizenship Clause of the 14th Amendment was the only constitutional source for this legislation. In order to enact legislation that extended the Citizenship Clause, Congress began to selectively treat Puerto Rico as an incorporated territory or a part of the United States. Since the enactment of the Nationality Act of 1940, birth in Puerto Rico is tantamount to birth in the United States for the sole purpose of extending jus soli or birthright citizenship. Again, drawing on its enumerated powers under the Territories Clause, Congress extended the Citizenship Clause of the 14th Amendment via legislation without incorporating or changing Puerto Rico’s political status. Congress affirmed this interpretation with the Pagán Amendment of 1948 and the Immigration and Nationality Act of 1952. Congress has not enacted any other citizenship provision for Puerto Rico since 1952.
Cited and Suggested Resources:
Primary Sources
Citizenship for Inhabitants of Virgin Islands Act of 1927, Pub. L. No. 69-640, 44 Stat. 1234 (1927).
Files for Mr. Mallorga’s case are available at the Archivo General de Puerto Rico, Oficina del Gobernador, T-96-20, Caja 424, American Cases.
Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952).
Jones Act of 1917, Pub. L. No. 64-368, 39 Stat. 951 (1917).
Nationality Act of 1940, Pub. L. No. 76-853, 54 Stat. 1137 (1940).
Pagán/Fernós-Isern Amendment of 1948, Pub. L. No. 80-776, 62 Stat. 1015 (1948).
United States Congress. House of Representatives. Revising The Laws Relating To Immigration, Naturalization, And Nationality, 82nd Cong., 2d Sess. 1952, H. Rept. 1365.
United States Congress. House of Representatives. To Revise and Codify the Nationality Laws of the United States into a Comprehensive Nationality Code (Nationality Act of 1940): Hearings on H.R. 6127 and H.R. 9980 Before the House Committee on Immigration and Naturalization, 76th Cong. 38 (1940) [statement of Representative Edward H. Rees (R-KS)].
Secondary Sources
Álvarez González, José Julián. “The Empire Strikes Out: Congressional Ruminations on the Citizenship Status of Puerto Ricans,” 27 Harv. J. on Legis. 309 (1990).
_____. Derecho constitucional de Puerto Rico y relaciones constitucionales con los Estados Unidos, Casos y materiales. Bogotá: Editorial Temis, S.A., 2009.
Bothwell, Reece B. La ciudadanía en Puerto Rico. Spain: Editorial Universitaria, 1980.
González Lamas, Antonio. Adquisición y perdida de la ciudadanía de Estados Unidos por los naturales de Puerto Rico, 9 Revista de derecho, legislación y jurisprudencia 209 (1946).
Perez, Lisa Maria. Note: Citizenship Denied: The Insular Cases and the Fourteenth Amendment, 94 Va. L. Rev. 1029 (2008).
Venator-Santiago, Charles R. “Extending Citizenship to Puerto Rico, The Three Traditions of Inclusive Exclusion,” CENTRO: Journal of Puerto Rican Studies 25(1) (2013): 50-75.
_____. “Are Puerto Ricans Native-Born U.S. Citizens? The 1948 Pagán/Fernós-Isern Amendment,” Ámbito de Encuentros 6 (2) (2013): 1-23.
_____. “A Note on Jesús T. Piñero and the Polemics of U.S. Citizenship for Puerto Ricans During the Decade of 1940,” Ámbito de Encuentros 9 (2) (2016): 7-22.
_____. “Balzac v. People of Porto Rico and the Problem of the Liberal Narrative of Citizenship, Why Puerto Ricans are Not Second-Class Citizens Today” CENTRO Journal 34(1) (Spring 2022).
with José Javier Colón Morera, eds. Special Issue: Back to the future: The Implications of Balzac One Hundred Years Later, CENTRO Journal 34(1) (Spring 2022).
with José Javier Colón Morera, eds. Special Issue: En la sombra de Balzac. U.P.R. Law Review (scheduled for publication, Summer 2022).