8 FAM 301.12
Special Citizenship Provisions Regarding the Philippines
(CT:CITZ-1; 06-27-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 301.12-1 Introduction
(CT:CITZ-1; 06-27-2018)
The purpose of this subchapter is to provide detailed
historical background and guidance about special provisions in U.S. nationality
law for the Philippines. This subchapter includes guidance regarding:
(1) Acquisition of U.S. noncitizen national status by
birth in the Philippines after April 11, 1899 but before July 4, 1946;
(2) Calculation of prior residence or physical
presence in the Philippines between January 13, 1941 and July 4, 1946 for
transmittal of U.S. citizenship to a person born to one U.S. citizen parent
under section 201 of the Nationality Act (NA) of 1940 and Section 301 of the
Immigration and Nationality Act of 1952 (INA); and
(3) U.S. Naturalization of Philippine veterans of
World War II.
8 FAM 301.12-2 U.S. Citizenship
and the philippines
(CT:CITZ-1; 06-27-2018)
a. U.S. noncitizen national status of
certain persons in the Philippines, April 11, 1899- July 3, 1946:
(1) U.S. citizenship was never conferred on
Filipinos as a group by special U.S. legislation;
(2) Under article IX of the Treaty of Paris (which
ended the Spanish-American War, and through which Spain ceded the Philippines
to the United States), natives of Spain or the peninsula (the Iberian Peninsula
and adjacent islands (the Department considers "natives of the Peninsula"
to include natives of the Balearic and Canary Islands), then residing in the
Philippines were permitted to retain Spanish citizenship by declaration of
allegiance prior to October 11, 1900:
(a) If these individuals did not make such a
declaration, they became U.S. noncitizen nationals as of April 11, 1899;
(b) The treaty provided that "Other Spanish
subjects" (Filipinos), resident in the Philippines on April 11, 1899
became U.S. noncitizen nationals; and
(c) The time period within which such declaration could
be made was extended for a period of 6 months from April 11, 1900 (31 Stat.
1881);
(3) Children born in the Philippines after April 11,
1899, but before January 13, 1941, to persons with U.S. noncitizen national
status, became U.S. noncitizen nationals at birth (32 Stat. 386);
|
NOTE: This conferring of U.S. noncitizen
national status was accomplished in the second paragraph of article IX of the
Treaty of Paris. "The civil rights and political status of the native
inhabitants shall be determined by the Congress."
The passport law was modified in 1902 to address
documentation of these noncitizen nationals to read "No passport shall
be issued to any other persons than those owing allegiance, whether citizens
or not, to the United States." (32 Stat. 386)
|
(4) U.S. law regarding noncitizen national status for
a person born in an outlying possession of the United States, including the
Philippines, to a U.S. noncitizen national parent on or after January 13, 1941
but before July 4 1946 was specifically provided for in section 204 of the
Nationality Act of 1940 (54 Stat. 1139), by a person born in an outlying
possession of the United States, including the Philippines, to a U.S.
noncitizen national parent on or after January 13, 1941 but before July 4 1946;
and
(5) Filipinos continued as U.S. noncitizen nationals
until July 4, 1946 when, through Presidential Proclamation 2695, the United
States recognized the Philippines as an independent nation. With such
recognition, all Philippine citizens who had not acquired U.S. citizenship by
birth abroad to a U.S. citizen parent(s) or by naturalization, lost their U.S.
noncitizen nationality, whether residing in the Philippines or the United
States.
b. U.S. treaties with Spain regarding
the Philippines:
(1) Treaty of Paris (30 Stat. 1754; 11 Bevans
615). After the Spanish-American War, Spain ceded the Philippines to the
United States by the Treaty of Peace signed at Paris December 10, 1898 by the
United States and Spain. The treaty entered into force April 11, 1899 (see
also 8 FAM
302.1); and
|
Text of Article IX of the Treaty of Paris
"Spanish subjects, natives of the Peninsula,
residing in the territory over which Spain by the present treaty relinquishes
or cedes her sovereignty, may remain in such territory or may remove
therefrom, retaining in either event all their rights of property, including
the right to sell or dispose of such property or of its proceeds; and they
shall also have the right to carry on their industry, commerce and
professions, being subject in respect thereof to such laws as are applicable
to other foreigners. In case they remain in the territory they may preserve
their allegiance to the Crown of Spain by making, before a court of record,
within a year from the date of the exchange of ratifications of this treaty,
a declaration of their decision to preserve such allegiance in default of
which declaration they shall be held to have renounced it and to have adopted
the nationality of the territory in which they reside."
"The civil rights and political status of the
native inhabitants of the territories hereby ceded to the United States shall
be determined by the Congress."
|
(2) Treaty of Washington (31 Stat. 1942, 11
Bevans 623). The Treaty for the Cession to the United States of any and all
Islands of the Philippine Archipelago lying outside of the lines described in
article III of the Treaty of Peace of December 10, 1898; signed at Washington November
7, 1900 by the United States and Spain; entered into force March 23, 1901. The
treaty sought to remove any ground of misunderstanding growing out of the
interpretation of article III of the 1898 Treaty of Paris by clarifying
specifics of territories relinquished to the United States by Spain.
|
Text of the treaty of Washington, Paragraph 1
(sole article)
"Spain relinquishes to the United States all
title and claim of title; which she may have had at the time of the
conclusion of the Treaty of Peace of Paris, to any and all islands belonging
to the Philippine Archipelago, lying outside the lines described in Article
III of that Treaty and particularly to the islands of Cagayan Sulu and Sibutu
and their dependencies, and agrees that all such islands shall be
comprehended in the cession of the Archipelago as fully as if they had been
expressly included within those lines."
|
c. U.S. laws, proclamations regarding
the status of the Philippines:
(1) Commencing in 1902, the U.S. Congress exercised
the "power to determine civil rights and political status of the native
inhabitants" provided for in article IX of the Treaty of Paris through a
series of acts which conferred Philippine, but not United States,
citizenship on the peoples of the Islands. (The Philippine Organic act of
1902 "An act Temporarily to Provide for the Administration of the Affairs
of Civil Government in the Philippine Islands, and for other purposes"
(also known as the Philippine Bill of 1902 and the Cooper act) (32 Stat. 691);
|
The Philippine Organic act of 1902, section 4
text (enacted July 1, 1902)
"That all inhabitants of the Philippine
Islands continuing to reside therein who were Spanish subjects on the
eleventh day of April, eighteen hundred and ninety-nine, and then resided in
said Islands, and their children born subsequent thereto, shall be deemed and
held to be citizens of the Philippine Islands and as such entitled to the
protection of the United States, except such as shall have elected to
preserve their allegiance to the Crown of Spain in accordance with the
provisions of the treaty of peace between the United States and Spain signed
at Paris December tenth, eighteen hundred and ninety-eight."
|
(2) The U.S. Congress, by legislation of 1902, 1912
and 1916, conferred Philippine citizenship upon persons who had become U.S.
noncitizen nationals, and also authorized the Philippine legislature to extend
Philippine citizenship to others. From March 26, 1920 to June 17, 1943, U.S.
Congress enacted territorial legislation bestowing U.S. noncitizen national
status upon all persons who acquired Philippine citizenship under thereunder;
(3) The act of March 23, 1912 (37 Stat. 76), "An
Act to Amend an Act Approved July First Nineteen Hundred and Two";
|
Act of March 23, 1912
"That section four of the act of Congress
approved July first, nineteen hundred and two, entitled, "An Act
Temporarily to Provide for the Administration of the Affairs of Civil
Government in the Philippine Islands, and for other Purposes," is hereby
amended to read as follows:
"Section 4
That all inhabitants of the Philippine Islands
continuing to reside therein who were Spanish subjects on the eleventh day of
April, eighteen hundred and ninety-nine, and then resided in said islands,
and their children born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands and as such entitled to the protection of
the United States, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the
treaty of peace between the United States and Spain signed at Paris December
tenth, eighteen hundred ninety-eight: Provided, that the Philippine
Legislature is hereby authorized to provide by law for the acquisition of
Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of other insular
possessions of the United States, and such other persons residing in the
Philippine Islands who could become citizens of the United States under the
laws of the United States if residing therein."
|
(4) The act of August 29, 1916, "An Act To
declare the purpose of the people of the United States as to the future
political status of the people of the Philippine Islands, and to provide a more
autonomous government for those islands" (Philippines Autonomy Act, also
known as The Jones Act)). (39 Stat. 545):
(a) The Jones Act also created the first fully elected
Philippine legislature;
(b)The words, "continuing to reside," which
were contained in the acts of 1902 and 1912 and apparently requiring residence
in the islands until the dates on which the acts went into effect, were omitted
in the Jones Act. (3 Hackworth Digest of International Law 128, U.S.
Department of State (1942))"
|
Act of August 29, 1916, section 2 (the
Jones Act)
"That all inhabitants of the Philippine
Islands who were Spanish subjects on the eleventh day of April, eighteen
hundred and ninety-nine, and then resided in said islands, and their children
born subsequent thereto, shall be deemed and held to be citizens of the
Philippine Islands, except such as shall have elected to reserve their
allegiance to the Crown of Spain in accordance with the provisions of the
treaty of peace between the United States and Spain, signed at Paris December
tenth, eighteen hundred and ninety-eight, and except such others as have
since become citizens of some other country: Provided, That the Philippine
Legislature herein provided for, is hereby authorized to provide by law for
the acquisition of Philippine citizenship by those natives of the Philippine
Islands who do not come within the foregoing provisions, the natives of
insular possessions of the United States, and such other persons residing in
the Philippine Islands who are citizens of the United States, or who could
become citizens of the United States under the laws of the United States if
residing therein."
|
(5) Act of February 5, 1917, "An Act to Regulate
the Immigration of Aliens to, and the Residence of Aliens in, the United
States" (39 Stat. 874). Previously, the Department had held that persons
born outside of the Philippine Islands of parents who are citizens of the
Philippine Islands by virtue of the treaty with Spain and subsequent acts of
the Congress of the United States acquired the status of citizens of the
Philippine Islands at birth. The Department also considered that persons born
outside of the Philippine Islands of parents who were naturalized as citizens
of the Philippine Islands acquire the status of citizens of the Philippine
Islands at Birth. (Hackworth Digest of International Law 135, U.S. Department
of State (1942));
(6) The Philippines Independence Act, also known as
the TydingsMcDuffie Act Public Law 73-127, 48 Stat. 456, enacted March 24,
1934). The Tydings-McDuffie Act did not become effective until May 1, 1934,
when a concurrent resolution was adopted by the Philippine legislature in
acceptance of the act. This in turn led eventually to the establishment of the
Commonwealth of the Philippines. The Philippines Independence Act provided for
self-government of the Philippines and for Filipino independence from the
United States after a period of 10 years. It also established strict
limitations on Filipino immigration. Pending full independence, the act authorized
the Philippines to adopt a constitution and organize a new government. The
Philippines did so in 1935. Full implementation was delayed by World War II;
and
|
Philippines Independence Act 1934 (excerpt)
SEC. 2. (a) (1)
"All citizens of the Philippine Islands shall
owe allegiance to the United States."
Sec. 8 (a)(2)
"Citizens of the Philippine Islands who are
not citizens of the United States shall be considered as if they were aliens
for purposes of immigration, exclusion and expulsion under the Immigration
Acts of 1917 and 1924."
|
(7) Presidential Proclamation No. 2695, 3 CPR p. 86
(1943-48 Comp. Proc. No. 2695, eff. July 4, 1946, 11 F.R. 7517, 60 Stat. 1352,
issued pursuant to section 1394 of Title 22, Foreign Relations and Intercourse,
and set out under that section (Notes 48 U.S.C. 731). Under this Presidential
Proclamation the United States withdrew and surrendered all rights of
sovereignty over the territory and people of the Philippines. At that moment,
the allegiance, which the citizens of the Philippine Islands owed to the United
States, was terminated and the corresponding United States nationality of such
persons was likewise terminated.
|
Presidential Proclamation 2695
"WHEREAS the United States of America by the
Treaty of Peace with Spain of December 10, 1898, commonly known as the Treaty
of Paris, and by the Treaty with Spain of November 7, 1900, did acquire
sovereignty over the Philippines, and by the Convention of 47 Stat. 2198.
January 2, 1930, with Great Britain did delimit the boundary between the
Philippine Archipelago and the State of North Borneo; and
WHEREAS the United States of America has
consistently and faithfully during the past forty-eight years exercised
jurisdiction and control over the Philippines and its people; and
WHEREAS it has been the repeated declaration of
the legislative and executive branches of the Government of the United States
of America that full independence would be granted the Philippines as soon as
the people of the Philippines were prepared to assume this obligation; and
WHEREAS the people of the Philippines have clearly
demonstrated their capacity for self-government; and
WHEREAS the Act of Congress approved March 24,
1934, known as the Philippine Independence Act, directed that, on the 4th day
of July immediately following a ten-year transitional period leading to the
independence of the Philippines, the President of the United States of
America should by proclamation withdraw and surrender all rights of
possession, supervision, jurisdiction, control, or sovereignty of the United
States of America in and over the territory and people of the Philippines,
except certain reservations therein or thereafter authorized to be made, and,
on behalf of the United States of America, should recognize the independence
of the Philippines:
NOW, THEREFORE, I, HARRY S. TRUMAN, President of
the United States of America, acting under and by virtue of the authority
vested in me by the aforesaid act of Congress, do proclaim that, in accord
with and subject to the reservations provided for in the applicable statutes
of the United States,
The United States of America hereby withdraws and
surrenders all rights of possession, supervision, jurisdiction, control, or
sovereignty now existing and exercised by the United States of America in and
over the territory and people of the Philippines; and
On behalf of the United States of America, I do
hereby recognize the independence of the Philippines as a separate and
self-governing nation and acknowledge the authority and control over the same
of the government instituted by the people thereof, under the constitution
now in force."
|
d. Treaties between the United States
and the Philippines:
(1) Provisional agreement concerning friendly
relations and diplomatic and consular representation: Signed at Manila July 4,
1946. Entered into force July 4, 1946. 60 Stat. 1800; TIAS 1539; 11 Bevans 1;
6 UNTS 335;
|
Article I
"The Government of the United States of
America recognizes the Republic of the Philippines as a separate, independent
and self-governing nation and acknowledges the authority and control of the
Government of the Republic of the Philippines over the territory of the
Philippine Islands."
|
(2) Treaty of Manila General Relations, and Protocol:
Signed at Manila July 4, 1946. Entered into force October 22, 1946. 61 Stat.
1174; TIAS 1568; 11 Bevans 3; 7 UNTS 3. The United States granted the
Philippines independence, and the treaty provided for the recognition of that
independence; and
(3) Consular convention: Signed at Manila March 14, 1947.
Entered into force November 18, 1948. 62 Stat. 1593; TIAS 1741; 11 Bevans 74;
45 UNTS 23.
e. Judicial and administrative case law regarding
U.S. citizenship and noncitizen nationality of denizens and persons born in the
Philippines: Although the Philippines had become an unincorporated U.S.
territory under the Treaty of Paris, Congress did not enacted laws
incorporating the Philippines into the United States or making the Constitution
fully applicable to the Philippines. The question of the legal status of the
Philippines and applicability of U.S. citizenship laws was the subject of
extensive administrative and judicial review:
(1) 1901 Attorney General Opinion: The Attorney
General of the United States, on January 23, 1901, gave the following opinion:
|
The undisputed attitude of the executive and
legislative departments of the Government has been and is that the native
inhabitants of Porto Rico and the Philippine Islands did not become citizens
of the United States by virtue of the cession of the islands by Spain by
means of the treaty of Paris. It was not the intention of the commissioners
who negotiated the treaty to give those inhabitants the status of citizens of
the United States." (23 Op. Atty. Gen. 370)
|
(2) Board of Immigration Appeal:
(a) Matter of Peralta, 11 I. & N. Dec. 321, 322-23
(BIA 1965):
|
"As respondent, a native and citizen of the
Philippine Islands who was admitted to the United States for permanent
residence in 1928, lost his U.S. nationality on July 4, 1946 when The
Philippines became an independent country, he is deportable from the United
States under section 241(a) (1), Immigration and Nationality Act, as amended,
since at the time of his last entry in 1950 as a returning resident he was an
alien excludable under section 3 of the Immigration Act of 1917, as amended,
because of his conviction in 1936 of the crime of robbery in the first
degree. Although a U.S. national at the time of his conviction in 1936,
pursuant to section 8(a) (1) of the Philippine Independence Act of March 24,
1934, respondent was to be considered as if he were an alien for the purposes
of the Immigration Act of 1917."
|
(b) In the Matter of M-----, 6 I. & N. Dec. 182
(1954):
|
"While a person born in the United States
loses the citizenship acquired thereby only if he commits expatriating acts,
this is not true of a United States national who does not possess citizenship
but merely owes allegiance to the United States. All citizens of the
Philippine Islands who had not acquired United States citizenship lost their
United States nationality on July 4, 1946, whether residing in the Philippine
Islands or in the United States."
|
(c) In the Matter of Hermosa, 14 I. & N. Dec. 447
(1973):
|
"The Philippine Islands have never been
deemed part of the United States within the purview of the citizenship clause
of the Fourteenth Amendment of the Constitution of the United States; hence,
respondent's claim to United States citizenship under the provisions of
section 1 of the Immigration Act of February 5, 1917, as amended, and the
Fourteenth Amendment to the Constitution by virtue of her birth in the
Philippine Islands on March 27, 1943, is without merit."
|
(3) U.S. Courts:
(a) Dorr v. U.S., 195 U.S. 138 (1904): The Philippine
Islands were never incorporated into the United States, and the Constitution of
the United States thus never was fully applicable to them:
|
"If the treaty-making power could incorporate
territory into the United States without congressional action, it is apparent
that the treaty with Spain, ceding the Philippines to the United States [30
Stat. at L. 1759], carefully refrained from so doing; for it is expressly
provided that (article 9): The civil rights and political status of the
native inhabitants of the territories hereby ceded to the United States shall
be determined by the Congress. In this language it is clear that it was the
intention of the framers of the treaty to reserve to Congress, so far as it
could be constitutionally done, a free hand in dealing with these
newly-acquired possessions."
"The legislation upon the subject shows that
not only has Congress hitherto refrained from incorporating the Philippines
into the United States, but in the act of 1902, providing for temporary civil
government (32 Stat. at L. 691, chap. 1369), there is express provision that
1891 of the Revised Statutes of 1878 shall not apply to the Philippine
Islands. This is the section giving force and effect to the Constitution and
laws of the United States, not locally inapplicable, within all the organized
territories, and every territory thereafter organized, as elsewhere within
the United States."
|
(b) U.S. v. Gancy, 54 F.Supp. 755 (1944) United States
v. Gancy (1945), 4 F. Supp. 755 (D. Minn. 1944), affirmed 149 F.2d 788 (C.A.
8), cert. denied 326 U.S. 727, rehearing denied 326 U.S. 810 (1945):
|
Braulio Malim Gancy was indicted for failure to
register pursuant to the Alien Registration Act of 1940, Tit. 3, Secs. 30-37,
8 U.S.C.A. 451-460, and he moved to quash the indictment on the ground
that he is not an alien, but a citizen of the United States. The Court
found:
"We may, as these cases suggest, owe the
Filipinos a duty of protection in return for their allegiance and they may be
entitled to certain fundamental personal rights as nationals of a dependency,
but their rights under our immigration laws are a matter for Congress to
determine. That question has now been settled beyond any controversy. It
follows, therefore, that the motion to quash the indictment will be, and is,
denied. An exception is reserved to the defendant."
|
(d) Rabang v. Boyd, 353 U.S. 427 (1957): During the
period of American dominion over the Philippine Islands, between April 11, 1899
and July 4, 1946, large number of Filipinos were U.S. noncitizen nationals.
Their noncitizen nationality automatically was terminated upon the grant of
independence July 4, 1946. This applied even to Filipinos who were residing in
the United States on July 4, 1946. Application for habeas corpus and
declaratory relief from order of deportation. The Court of Appeals for the
Ninth Circuit, 234 F.2d 904, affirmed a judgment denying the application, and
petitioner brought certiorari. The Supreme Court, Mr. Justice Brennan, held
that person born in the Philippine Islands, who thereby was a national of the
United States, became an alien on grant of independence to Philippines,
regardless of permanent residence in the continental United States on that
date, and was deportable on conviction of Federal narcotics offense.
Affirmed. Mr. Justice Douglas dissented. Upon the proclamation of Philippine
independence on July 4, 1946, 8 s 14 of the Philippine Independence Act of 1934
became operative. Section 14 provided:
|
"Upon the final and complete withdrawal of
American sovereignty over the Philippine Islands the immigration laws of the
United States (including all the provisions thereof relating to persons
ineligible to citizenship) shall apply to persons who were born in the
Philippine Islands to the same extent as in the case of other foreign
countries." (48 Stat. 464)
|
8 FAM 301.12-3 residence/physical
presence in the philippines transmittal of u.s. citizenship by a u.s. citzen
parent to a child born abroad
(CT:CITZ-1; 06-27-2018)
a. A person born in the Philippines subject to section
1993 of the Revised Statutes April 11, 1899 - January 11, 1941, did not
acquire U.S. citizenship by virtue of their U.S. citizen parent's residence in
the Philippines:
(1) On September 4, 1930, In the Matter of Rheta
Maurine Smidt, the Solicitor of the Department of State reached a conclusion on
the subject of whether residence in the Philippine islands satisfied the
requirement of section 1993 of the revised statutes concerning residence in the
United States (III Hackworth, Digest of International Law, U.S. Department of
State, p. 21 (1942)). The solicitor concurred in the Department's opinion that
the expression "out of the limits and jurisdiction of the United
States" as used in section 1993 is the antithesis of the expression
"in the United States and subject to the jurisdiction thereof" as
used in article 14 of the Amendments to the Constitution of the United States.
The 14th Amendment has been construed as applicable to persons born in the
Continental United States and incorporated territories" (see U.S. v. Wong
Kim Ark, 169 U.S. 649; In re Lam Mow, 24 F. 2d 316); and
(2) This interpretation was reiterated by the
Department of State in 1942. "Residence in the United States" within
the meaning of section 1993 of the revised statues was generally construed by
the Department of State as not including residence in the unincorporated
territories and possessions." (3 Hackworth Digest of International Law
21, U.S. Department of State (1942).
b. One's residence or physical presence in the
Philippines until it became independent on July 4, 1946 would be relevant for
purposes of the Nationality Act Section 201 and INA 301: Birth to one U.S.
citizen parent after January 12, 1941 and prior to July 4, 1946:
(1) Section 201(e): A
person born in the Philippines after January 12, 1941 (the effective date of
the Nationality Act of 1940) and prior to July 4, 1946 (the date of Philippine
Independence) to a U.S. citizen parent who previously resided in an outlying
possession of the United States (including the Philippines), acquired U.S.
citizenship at birth under section 201(e) of the Nationality Act of 1940. No
specific period of residence was required to transmit U.S. citizenship;
and
|
Text of section 201(e)
"The following shall be nationals and
citizens of the United States at birth:
"(e) A person born in an outlying possession
of the United States of parents one of whom is a citizen of the United States
who resided in the United States or one of its outlying possessions prior to
the birth of such person."
Section 101(e) provided:
"The term "outlying possessions"
means all territory, other than as specified in subsection (d), over which
the United States exercises rights of sovereignty, except the Canal
Zone."
|
(2) Section 201(g): A person
born outside the United States and its outlying possessions (outside the
Philippines) of parents one of whom is a citizen of the United States, who,
prior to the birth of such person had had 10 years residence in the United
States or one of its outlying possessions (including the Philippines), at least
five or which were after attaining the age of 16 years, acquired U.S.
citizenship at birth under section 201(g) of the Nationality Act of 1940.
Residence or physical presence in the Philippines after January 12, 1941 (the
effective date of the Nationality Act of 1940) and prior to July 4, 1946 (the
date of Philippine Independence) would be pertinent.
|
Text of section 201(g) Nationality Act of 1940:
"Sec. 201 The Following shall be nationals
and citizens of the United States at birth:
"g) A person born outside the United States
and its outlying possessions of parents one of whom is a citizen of the
United States who, prior to the birth of such person, has had ten years'
residence in the United States or one of its outlying possessions, at least
five of which were after attaining the age of sixteen years, the other being
an alien." [Section 201(g) included retention provisions. See 7 FAM
1100 Appendix L.]
|
c. Immigration and Nationality
Service decisions:
(1) INS administrative decisions in cases involving
acquisition of citizenship at birth abroad under sections 201(e) and section
201(g) of the Nationality Act of 1940 have held that a parent's residence in
the Philippine Islands prior to July 4, 1946, was residence in an outlying
possession of the United States for the purpose of those sections:
(a) In the Matter of S, 4 IN 575 (1951):
|
"(1) Until July 4, 1946, the date on which
the independence of the Philippine Islands was recognized, the Philippine
Islands were outlying possessions of the United States within the meaning of
Section 201(e) of the Nationality Act of 1940, as amended.
"(2) A child born in the Philippine Islands
in 1942 of a native Filipino father and a native Filipino mother, the later
having acquired U.S. citizenship under section 1993 of the Revised Statutes
(by reason of the birth of her father in New York), is deemed to have
acquired U.S. citizenship at birth pursuant to the provisions of section
201(e) of the Nationality Act of 1940."
|
(b) In the Matter of Y, 7 IN 667 (1958):
|
"Citizenship Acquisition at Birth: Residence
of parent for required period in territory which was possession of United
States at any time prior to birth of child satisfied section 201(g),
Nationality Act of 1940, even though such territory was not United States
possession at the time of the child's birth."
|
(2) In the Matter of V, 9 IN 558 (1962) addressed the
question of whether residence or physical presence in the Philippines prior to
the effective date of the Nationality Act of 1940 can be calculated as
physical presence under section 301(a)(7) INA. In the Matter of V
concluded that residence in the Philippines by a citizen parent does constitute
presence for the purposes of section 301(a)(7) INA despite the fact that the
unincorporated outlying possession has since become an independent country,
citing the savings clause:
|
"CitizenshipAcquisition at birth
abroadSection 301(a)(7) of 1952 ActPhysical presence of citizen
parentSavings clause preserves residence in outlying possession which has
since become independent country."
|
8 FAM 301.12-4 Birth in the
Philippines to a U.S. Citizen Parent Who Served Honorably in the Armed Forces
of the United States December 7, 1941 - December 31, 1946
(CT:CITZ-1; 06-27-2018)
a. Section 201(i): The act of
July 31, 1946 (60 Stat. 721) added section 201(i) to the Nationality Act of
1940 to make special provision for persons born abroad to U.S. citizen veterans
of World War II. Section 201(i) pertains to birth outside the United States
and its outlying possessions (including the Philippines) of parents one of whom
is a citizen of the United States who served honorably in the armed forces of
the United States after December 7, 1941 and before the date of termination of
hostilities December 31, 1946, who had, prior to the birth of such person 10
years residence in the United States or one of its outlying possessions, at
least 5 of which were after the age of 12.
|
Text of section 201(i) of the Nationality Act:
"(i) A person born outside the United States
and its outlying possessions of parents one of whom is a citizen of the
United States who has served or shall serve honorably in the armed forces of
the United States after December 7, 1941, and before the date of the
termination of hostilities in the present war as proclaimed by the President
or determined by a joint resolution by the Congress and who, prior to the
birth of such person, has had 10 years' residence in the United States or one
of its outlying possessions, at least five of which were after attaining the
age of 12 years." [Section (i) also included retention provisions not
quoted here]
|
b. This assisted veterans who had departed the United
States to serve in the U.S. military before they reached age 21, and lacked
sufficient residence in the United States to transmit citizenship.
c. One feature of section 201(i) is that it only
required that paternity be established. It did not require legitimation.
Citizenship claims under section 201(i) were subject to the retention
provisions of former Section 301(b) INA.
d. Section 201(i) can only be used for persons
born in the Philippines to a U.S. citizen parent after July 4, 1946 and before
December 24, 1952 (the effective date of the INA).
8 FAM 301.12-5 Philippine
Citizens and U.S. Lawful Permanent Resident Status
(CT:CITZ-1; 06-27-2018)
a. Toyota v. United States, 268 U.S. 402 (1925,)
assumed that Filipinos may become citizens by naturalization by bringing
themselves within the narrow provisions of an act of Congress applicable to
them. "The seventh subdivision of 4, of the Act of May 9, 1918 (40
Stat. 542), permits "any native-born Filipino" or "any alien, or
any Porto Rican not a citizen of the United States" belonging respectively
to the classes there described, on presentation of the required declaration of
intention, to petition for naturalization without proof of 5 years' residence
within the United States; and the act permits "any alien" serving in
the forces of the United States" during the time this country is engaged
in the present war" to file his petition for naturalization without making
the preliminary declaration of intention and without proof of 5 years'
residence in the United States."
b. Filipino citizens who had entered the United States
before May 1, 1934, as U.S. noncitizen nationals, without regard to the
immigration laws, and had continued to reside therein as permanent residents,
were not in a position to establish the lawful admission for permanent
residence required for the naturalization of aliens.
c. To meet this situation, Congress, when it amended
the Act of October 14, 1940 in the act of July 2, 1946, Public Law 483, to
confer eligibility for naturalization upon Filipinos as a class, also added
section 321A to the 1940 statute which, in its effect, was similar to current
section 326. A Filipino citizen who seeks the benefits of current section 326
must establish by evidence satisfactory to the naturalization court that he
entered the United States before the May 1st, 1934 date mentioned above and has
continuously resided therein since such date. In sustaining the burden of this
proof, the petitioner is entitled to the use of any INS records concerning him.
|
Act of July 2, 1946, Public Law 483, also known
as the LuceCeller Act of 1946
"Certificates of arrival or declarations of
intention shall not be required of Filipino persons or persons of Filipino
descent who are citizens of the Commonwealth of the Philippines on the date
of the enactment of this Section, and who entered the United States prior to
May 1, 1934, and have since continuously resided in the United States. The
term "Filipino persons" or "Persons of Filipino descent as
used in this Act shall mean persons of a race indigenous to the Philippine
Islands and shall not include persons who are of as much as one half of a
race ineligible to citizenship."
|
8 FAM 301.12-6 Philippine
Veterans of World War II
(CT:CITZ-1; 06-27-2018)
a. The Commonwealth Army of the Philippines was called
to serve with the United States Armed Forces in the Far East during World War
II, under President Roosevelts military order of July 26, 1941. President
Roosevelt invoked his power under the Philippine Independence Act, Public Law
No. 73127, 2(a)(12), 48 Stat. 456, 457 (1934), to call various Philippine
military organizations into the service of American armed forces. The order
of July 26, 1941 provided:
|
"I hereby call and order into the service of
the armed forces of the United States for the period of the existing
emergency, and place under the command of a General Officer, United States
Army, ... all of the organized military forces of the Government of the
Commonwealth of the Philippines."(6 Fed.Reg. 3825 (1941).
|
b. Sections 701, 702 and 705 of the Nationality Act of
1940, added by the Second War Powers Act, 1942, 56 Stat. 182, as amended,
provided for the naturalization of noncitizens who served honorably in the
Armed Forces of the United States during World War II authorizing the
appointment of naturalization officers to confer these benefits on noncitizens
outside the jurisdiction of a naturalization court:
(1) Section 701 exempted certain alien servicemen who
served outside the continental limits of the United States from some of the
usual requirements for naturalization, including those of a period of residence
in the United States and literacy in English. An amendment to this section
specified that all petitions filed under it had to be filed no later than
December 31, 1946;
(2) 702 provided for the overseas naturalization of
persons eligible for naturalization under 701 who were not within the
jurisdiction of any court authorized to naturalize aliens; naturalization under
702 could take place only during active service in the Armed Forces; and
(3) Section 705 authorized the Commissioner of
Immigration and Naturalization, with the approval of the Attorney General, to
make such rules and regulations as were necessary to carry into effect the
provisions of the act.
c. Text of the law:
|
"Sec. 701. '(A)ny person not a citizen,
regardless of age, who has served or hereafter serves honorably in the
military or naval forces of the United States during the present war and
(w)ho shall have been at the time of his enlistment or induction a resident
thereof and who (a) was lawfully admitted into the United States, including
its Territories and possessions, or (b) having entered the United States,
including its Territories and possessions, prior to September 1, 1943, being
unable to establish lawful admission into the United States serves honorably
in such forces beyond the continental limits of the United States or has so
served may be naturalized upon compliance with all the requirements of the
naturalization laws except that (1) no declaration of intention, no
certificate of arrival for those described in group (b) hereof, and no period
of residence within the United States or any State shall be required; (2) the
petition for naturalization may be filed in any court having naturalization
jurisdiction regardless of the residence of the petitioner; (3) the
petitioner shall not be required to speak the English language, sign his
petition in his own handwriting, or meet any educational test; . . .
Provided, however, That . . . (3) the petition shall be filed not later than
December 31, 1946. . . .'
"Sec. 702. 'During the present war, any
person entitled to naturalization under section 701 of this Act, who while
serving honorably in the military . . . forces of the United States is not
within the jurisdiction of any court authorized to naturalize aliens, may be
naturalized in accordance with all the applicable provisions of section 701
without appearing before a naturalization court. The petition for
naturalization of any petitioner under this section shall be made and sworn
to before, and filed with, a representative of the Immigration and
Naturalization Service designated by the Commissioner or a Deputy
Commissioner, which designated representative is hereby authorized to receive
such petition in behalf of the Service, to conduct hearings thereon, to take
testimony concerning any matter touching or in any way affecting the
admissibility of any such petitioner for naturalization, to call witnesses,
to administer oaths, including the oath of the petitioner and his witnesses
to the petition for naturalization and the oath of renunciation and
allegiance prescribed by section 335 of this Act, and to grant
naturalization, and to issue certificates of citizenship . . .'
"Sec. 705. 'The Commissioner, with the approval
of the Attorney General, shall prescribe and furnish such forms, and shall
make such rules and regulations, as may be necessary to carry into effect the
provisions of this Act'."
|
d. Implementation:
(1) Over the next 3 years, approximately 7,000 Filipino
soldiers were naturalized as U.S. citizens in places outside the Philippine
Islands (which were occupied during that entire period by Japan). Most of
these were naturalized by courts in the United States, but at least 1,000
others were naturalized by U.S. immigration officials appointed under 702,
traveling from post to post on rotation throughout England, Iceland, North
Africa, and the islands of the Pacific (see INS v. Hibi, 414 U.S. 10 (1973);
and
(2) After the Philippines were liberated from Japanese
occupation, in August 1945, George Ennis, the U.S. Vice Consul in Manila, was
designated to naturalize aliens pursuant to the 1940 act. Almost immediately
after that, the Philippine Government began to express its concern that a mass
migration of newly naturalized veterans would drain the country of essential
manpower, undermining postwar reconstruction efforts in the soon-to-be
independent country. Accordingly, on September 13, 1945, the Commissioner
recommended to Attorney General Clark that Vice Consul Ennis's naturalization
authority be revoked. (Memorandum to Tom C. Clark, Attorney General, from Ugo
Carusi, INS Commissioner, dated September 13, 1945, quoted in Matter of
Naturalization of 68 Filipino War Veterans, 406 F. Supp. 931, 936, n. 5 (ND
Cal.1975).) On October 26, 1945, Ennis was informed of that revocation. For
the next 9 months, no official with 702 authority to receive and act upon
petitions for naturalization was present in the Philippines, the Immigration
and Naturalization Service (INS) apparently taking the position that
appointment of such an official was authorized, but not mandated. Not until
August, 1946, did the INS designate a new 702 official for the Philippines,
who naturalized approximately 4,000 Filipinos before the December 31, 1946,
expiration date of the 1940 act.
e. The 9-month absence of a naturalization examiner
during the filing period was the basis of numerous lawsuits filed by Filipino
World War II veterans. (For example, In the Matter of Petitions for Naturalization
of 68 Filipino War Veterans, 406 F. Supp. 931 (ND Cal. 1975); United States v.
Mendoza, 464 U.S. 154 (1984); Olegario v. United States, 629 F. 2d 204 (2nd
Cir. 1980).)
f. The U. S. Supreme Court ruled that Filipino World
War II veterans had no statutory rights to citizenship under the expired
provisions of the Nationality Act of 1940:
(1) In the matter of U.S. Immigration and
Naturalization Service v. Hibi, 414 U.S. 5; 94 S. Ct. 19, (October 23, 1973)
the U.S. Supreme Court held that neither failure to fully publicize rights
which Congress accorded under Nationality Act of 1940 nor failure to have
stationed in Philippine Islands during all of time such rights were available
an authorized naturalization representative gave rise to estoppel against the
government. Mr. Justice Douglas, with whom Mr. Justice Brennan and Mr. Justice
Marshall concurred, dissented and filed opinion; and
(2) On July 17, 1988, INS v. Pangilinan, 486 U.S. 875
(1988) the U.S. Supreme Court, held that: (1) court lacked power to confer
citizenship in violation of limitations imposed by Congress in exercise of its
exclusive constitutional authority over naturalization, and (2) revocation of
vice consul's naturalization authority did not deprive Filipino nationals of
their rights under the due process clause of the Fifth Amendment and under its
equal protection component. The Supreme Court ruled that the courts could not
order redress to Philippine veterans, many of whom had sued repeatedly over the
years, saying they were deprived of their right to claim the benefit Congress
had promised in the expired law. Only Congress could set the terms and
conditions of naturalization, the court said.
f. Rescission Act of 1946: On
February 18, 1946, the Congress enacted the Rescission Act of 1946, now
codified as section 107 of Title 38 of the United States Code. The 1946 act
deemed that the service performed by these Filipino veterans would not be
recognized as active service for the purpose of any U.S. law conferring
rights, privileges, or benefits.
g. Act of 1948: Besides the
explicit cutoff date in the 1940 act, Congress in 1948, adopted a new
liberalized citizenship program that excluded Filipino servicemen, and
specifically provided that even applications timely filed under the 1940 act
and still pending would be adjudged under the new provisions act of June 1,
1948, Ch. 360, 62 Stat. 281. These provisions were carried forward into the
1952 Nationality Act, see 66 Stat. 250, 8 U.S.C. 1440.
h. Immigration Act of 1990:
Section 405 of the Immigration Act of 1990 (Public Law 101-649; PL 101649,
November 29, 1990, 104 Stat 4978) provided for expeditious naturalization of
certain Philippine Veterans of World War II. Congress passed several bills to
amend the Immigration Act of 1990, making it possible for veterans to
naturalize in the Philippines and extending the cut-off date for application (8
CFR 329.5). Interviews were conducted in the Philippines and in the United
States. In 1997 Congress extended the filing deadline until Feb. 3, 2001 (P.
L. 05-119, 112(d)(2). That was the last extension. This soon brought about
a large wave of elderly Filipino applicants, some twenty-eight thousand of whom
had become U.S. citizens. The text of 405 does not address the derivative naturalization
of spouses, widows or children of veterans.