8 FAM 301.11
Special Citizenship Provisions Regarding Panama
(CT:CITZ-1; 06-27-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 301.11-1 Introduction
(CT:CITZ-1; 06-27-2018)
The purpose of this appendix is to provide detailed
historical background and guidance about special provisions in U.S. nationality
law for Panama. This appendix includes guidance regarding:
(1) Acquisition of U.S. citizenship by birth in the
Panama Canal Zone between February 26, 1904 and October 1, 1979; and
(2) Acquisition of U.S. citizenship by birth in Panama
of persons born to U.S. citizens employed by the U.S. Government or the Panama
Railroad Company on or after February 26, 1904.
8 FAM 301.11-2 Birth in Panama
AND PANAMA CANAL ZONE Special Provisions
(CT:CITZ-1; 06-27-2018)
a. The Panama Canal Zone, (also known as the Canal Zone
and the Isthmian Canal Zone), was never considered part of the United
States or designated as an outlying possession for purposes of section 201 Nationality
Act of 1940 (NA) or Immigration and Nationality Act (INA) Section 301:
(1) The "Isthmian Canal Convention" (33
Stat. 2234, 10 Bevans 663) dated November 18, 1903, (and which in effect the
Republic of Panama granted the United States occupation and control of the area
of the then unbuilt Panama Canal, which became known as the Panama Canal Zone),
was ratified, proclaimed, and entered into force February 26, 1904; and
(2) The Panama Canal Zone was abolished on October 1,
1979 (Panama Canal Treaty, 33 UST 39).
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NOTE: The Consul at Kingston, in reply to his
inquiry on a case involving the point who held sovereignty over the Panama
Canal Zone, was informed on March 17, 1927 that "The Department is of
the opinion that persons born in the Canal Zone of alien parents since the
annexation of the Zone do not thereby acquire American
nationality" (III, Hackworth, Digest of International Law, pp. 117-118).
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b. Incorporated and Unincorporated Territories:
(1) The U.S. Supreme Court ruled in Downes v. Bidwell
(182 U.S. 244) (1901) that unincorporated territories are not
considered part of the United States; and
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"The Court affirmed and held that Puerto Rico
was a territory appurtenant belonging to the United States, but not a part of
the United States within the revenue clauses of the U.S. Constitution."
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(2) The Supreme Court ruled in Rasmussen v. United
States (197 U.S. 516) (1905), that the Constitution applies for incorporated
territories of the United States.
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"The Court concluded that art. III of the
treaty regarding Alaska allowed its inhabitants all the rights, advantages
and immunities of citizens of the United States as an incorporated
territory. The Court then determined that U.S. Constitution Amendment VI was
applicable to Alaska."
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c. Until August 4, 1937, there was no
special law relating to U.S. citizens born in Panama. Acquisition of
U.S. citizenship was governed by Section 1993, Revised Statutes (RS):
(1) A person born in the Canal Zone before May 24,
1934, acquired U.S. citizenship at birth if the father was a citizen
of the United States at the time of the applicant's birth but the rights of
citizenship shall not descend to children whose fathers never resided
in the United States previous to the birth of such child;
(2) If the birth occurred on or after May 24, 1934,
but prior to August 4, 1937, U.S. citizenship was acquired at birth if the father
or mother was at the time of birth a citizen of the United States but the
rights of citizenship shall not descend to children whose fathers or
mothers never resided in the United States previous to the birth of such
child; and
(3) The act of May 24, 1934 amending section 1993 RS
also included retention requirements. With respect to birth in the Canal Zone
and the Republic of Panama, those retention requirements were superseded by the
August 4, 1937 Act. However, because the 1937 act applies retroactively, as
does its modern version, section 303(b) INA, requires no retention provisions.
d. On August 4, 1937, the U.S. Congress enacted special
legislation, "an act Relating to the Citizenship of Certain Classes of
Persons Born in the Canal Zone or the Republic of Panama" (50 Stat. 558),
governing the conditions under which U.S. citizenship may be acquired by birth
in Panama. This legislation (and its successor statutes (section 203(a) NA and
203(b) NA; sections 303(a) and 303(b) INA as explained below) does not
apply to all children born in Panama. It is limited to children of qualifying
parents. Additionally, this Act was retroactive to February 26, 1904
"Isthmian Canal Convention." (See also 8 FAM 302.1.)
Under the act:
(1) No child born in the Canal Zone after October
1, 1979 can acquire U.S. citizenship under Section 201(a) NA or Section
303(a) INA because the Panama Canal Zone ceased to exist on that date. Section
303(a) is inoperable, due to the fact that the Panama Canal Zone no longer
exits; and
(2) The provisions of section 203(b) NA or section
303(b) INA still apply today. Section 303(b) of the
INA was not amended by either the Panama Canal Treaty or by the legislation
that effected the elimination of the Panama Canal Commission. Furthermore, the
statute itself has not been repealed, either explicitly or by implication.
Section 303(b) continues in force.
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Text of the Act of August 4, 1937 (50 Stat.
558)
"Sec 1. That any person born in the Canal
Zone on or after February 26, 1904, and whether before or after the effective
date of this Act, whose father or mother or both at the time of the birth of
such person was or is a citizen of the United States, is declared to be a
citizen of the United States.
"Sec.2. Any person born in the Republic of
Panama on or after February 26, 1904, and whether before or after the
effective date of this Act, whose father or mother or both at the time of the
birth of such person was or is a citizen of the United States employed by the
Government of the United States or by the Panama Railroad Company, is
declared to be a citizen of the United States."
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f. The 1937 legislation was incorporated in section
203 NA (54 Stat. 1139).
g. In 1952, the above same provisions were incorporated
in section 303 INA (66 Stat 163), retroactively (8 U.S.C. 1403). This section
of the INA was operative until the Canal Zone was abolished on October 1,
1979. However, but there may still be U.S. citizens today whose claim to U.S.
citizenship arises under either section 203(a) NA or INA section 303(a) by
birth prior to October 1, 1979. The provisions of section 203(b) NA or section
303(b) INA still apply today.
h. The Panama Railroad Company was re-designated the Panama Canal Company by the act of September 26, 1950 (64
Stat.1038). References to the Panama Canal Company in laws of the United
States are deemed to refer to the Panama Canal Commission pursuant to 22 U.S.C.
3602(b)(5) (93 Stat. 455). The Panama Canal Commission was established by
Public Law 96-70 (the Panama Canal Act of 1979) and began operations on October
1, 1979. The Commission functioned as an independent agency with the primary
purpose of operating and maintaining the Panama Canal and associated facilities
in cooperation with the Republic of Panama. On December 31, 1999, the
Commissions duties and sovereignty over the canal were transferred to the
Republic of Panama, upon the termination of the Panama Canal Treaty of 1977.
i. Residence, physical presence,
legitimation and retention:
(1) Under the act of 1937, section 203 NA and section
303 INA, a child born in the Panama Canal Zone or in the Republic of Panama on
or after February 26, 1904, to a U.S. citizen employee of the U.S. Government
or the Panama Railroad Company is automatically a U.S. citizen at birth even
if the citizen parent had never previously resided or been physically present
in the United States;
(2) There are/were no retention requirements
for a person who acquired U.S. citizenship under the act of 1937, section 203
NA and section 303 INA; and
(3) Birth out of wedlock:
(a) As noted above, physical presence or residence in
the United States by the U.S. citizen parent(s) prior to child's birth is not
required under Section 303 INA and its predecessor statutes. This also applies
to the U.S. citizen parent(s) of an applicant born out-of-wedlock in the Canal
Zone or Republic of Panama;
(b) INA 303 does not require an affirmative act of
legitimation of a child born out of wedlock in Panama. The Department's
view is that since 309 INA makes no reference to section 303(b) INA,
out-of-wedlock births and in-wedlock births for the purposes of section 303(b)
are to be adjudicated in the same manner. Thus, a U.S. citizen father of a
child born out-of-wedlock in the Canal Zone or in the Republic of Panama does
not have to established a legal relationship or provide financial support to
his out-of-wedlock offspring. An additional view is that Panama law treats all
children born in Panama as legitimate; thus any requirement for legitimation
that may be ready into INA 303 is satisfied by the provisions of Panamanian
law; and
(c) A child born in the Canal Zone or in the Republic of
Panama out of wedlock to a U.S. citizen father or mother employed by the U.S.
Government or the Panama Railroad Company acquires U.S. citizenship at birth.
j. Applicants not subject to the act
of 1937:
(1) Applicants born in Panama to U.S. citizen parents
who did not have the qualifying employment of that Act are not subject to the
provisions of the Act of 1937;
(2) Acquisition of citizenship for these individuals
was governed by section 1993 RS, which on May 24, 1934, was amended to include
retention requirements. However, these retention requirements were superseded
retroactively by the Act of 1937;
(3) Many persons who worked on the construction or
operation of the Panama Canal lived in the Republic of Panama instead of the
Canal Zone. Prior to the Act of August 4, 1937 their children, born in the
Republic of Panama, could claim U.S. citizenship only if their cases came under
section 1993 RS including the amendment of the Act of May 24, 1934; and
(4) Section 2 of the act of August 4, 1937 therefore
gave these children very liberal treatment. There were no residence
requirements for transmission of citizenship, and the U.S. citizen mother in
certain cases could also transmit citizenship prior to 1934.
k. In cases outside the scope of section 303(b) INA,
and its predecessor statutes, the general laws that govern the acquisition of
U.S. citizenship by birth abroad apply.
l. Section 303(b) interpretation:
Section 303(b) INA continues in force. Recent court cases clearly indicate
that Section 303 is still in effect. However, in interpreting 203(b) NA, the
Department is of the opinion that the U.S. Government employee who is also the
U.S. citizen parent must be assigned to the Republic of
Panama at the time of the child's birth. Any other position would, in the
Department's view, create a loop hole never intended by Congress when it
enacted Section 303 (and its predecessor, Nationality Act section 203) to
protect U.S. Government interests in a functioning Panama Canal.
m. Evidence to prove a claim to U.S. citizenship under
section 303(b) INA would include:
(1) The child's Panamanian birth certificate or other
proof of the child's birth to a U.S. citizen (the blood relationship must be
established);
(2) The parents' marriage certificate, if applicable;
and
(3) Proof of the citizen parent's employment by the
U.S. Government or the Panama Railroad Company at the time of the child's
birth.
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NOTE: On November 2, 1966, in
Public Law 89-710, Congress authorized the Attorney General to issue in the Canal Zone Certificates of Citizenship to persons
eligible to receive them under Section 341 INA, (i.e., persons who are
citizens under any of the applicable cited provisions of the section would no
longer be required to travel to the United States to obtain a Certificate of
Citizenship. That law provided:
"For the purpose of issuing certificates of
citizenship to persons who are citizens of the United States, the term
"United States" as used in section 341 of this Act includes the
Canal Zone."
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