8 FAM 302.2
Acquisition by Birth in Puerto Rico
(CT:CITZ-1; 06-27-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 302.2-1 Current Law
(CT:CITZ-1; 06-27-2018)
a. Puerto Rico comes within the definition of
"United States" given in section 101(a)(38) INA. A person born in
Puerto Rico acquires U.S. citizenship in the same way as one born in any of the
50 States. Section 301(a) INA (8 U.S.C. 1401(a)) provides:
SEC 301: The following shall be nationals and
citizens of the United States at birth a person born in the United States, and
subject to the jurisdiction thereof.
b. Section 302, INA (8 U.S.C. 1402) applies
specifically to persons born in Puerto Rico on or after April 11, 1899:
SEC 302: All persons born in Puerto Rico on or
after April 11, 1899, and prior to January 13, 1941, subject to the
jurisdiction of the United States, residing on January 13, 1941, 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 as of January 13, 1941. All persons born
in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of
the United States, are citizens of the United States at birth
8 FAM 302.2-2 Status Before
December 24, 1952
8 FAM 302.2-2(A) Status of
Inhabitants of Puerto Rico After April 11, 1899, Before March 2, 1917
(CT:CITZ-1; 06-27-2018)
a. Treaty of Paris of 1899
(1) Sovereignty over Puerto Rico was ceded by Spain
to the United States by the Treaty of Paris of 1899 (30 Stat. 1754), following
the Spanish‑American War;
(2) Referring to the Iberian Peninsula, Article IX of
the treaty, states, in part, that 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 there
from. 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 one year from
the date of exchange of ratifications of this treaty (April 11, 1899), a
declaration of their decision to preserve such allegiance, in default of which
declaration they shall be held to have adopted the nationality of the territory
in which they may reside. The civil rights and political status of the native
inhabitants of the territory hereby ceded to the United States shall be
determined by the Congress;
(3) The Governments of Spain and the United States agreed that:
(a) Only the Spanish subjects who had been born in the Spanish
Peninsula could opt not to acquire U.S. nationality (not citizenship);
(b) Spanish subjects born in Puerto Rico had no such
right. If they were residents of Puerto Rico, they became U.S. nationals automatically; and
(c) A Spanish‑born male could elect Spanish
nationality on behalf of his Spanish‑born wife and children but not on
behalf of a wife or child born in Puerto Rico.
(4) The Department has a list of the Spaniards in
Puerto Rico who made article IX declarations to retain Spanish nationality.
Questions about whether a particular person made a declaration should be
referred by telegram to the Department (CA/OCS); and
(5) The status of persons who were not Spanish‑subject
inhabitants of Puerto Rico on April 11, 1899, was not affected by the treaty.
b. Act of April 12, 1900:
(1) After the year during which a declaration could be
made to preserve Spanish nationality, Congress quickly took steps to define the
status of the inhabitants of Puerto Rico. Section 7 of the Act of April 12,
1900 (31 Stat. 77) stated:
(a) That all inhabitants continuing to reside therein
who were Spanish subjects on the eleventh day of April, eighteen hundred and
ninety‑nine, and then resided in Puerto Rico, and their children born
subsequent thereto, shall be deemed and held to be citizens of Puerto Rico, 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 on or before
the eleventh day of April, nineteen hundred, in accordance with the provisions
of the treaty; and
(b) Thus, a Spanish subject who resided in Puerto Rico
on April 11, 1899, and continued to reside there until April 12, 1900, acquired
Puerto Rican citizenship and non-citizen U.S. nationality, unless that person
was born in the Spanish peninsula and had declared an intention to keep Spanish
nationality
(2) In 1902, in determining that "American
artist" as used in the U.S. Customs regulations applied to a native of
Puerto Rico who was a Spanish subject on April 11, 1899, but who on that day
and on April 12, 1900, was residing temporarily in France pursuing the
profession of artist, the Attorney General indicated that a person need not be
physically present in Puerto Rico to benefit from the treaty and the Act of
April 12, 1900. However, a Spanish citizen in Puerto Rico who was not residing
there permanently would not have acquired U.S. nationality or Puerto Rican
citizenship (24 Op Atty. Gen. 40). It was held that residence was a legal
matter to be determined by the facts in each case; and
(3) Generally, "residence" was taken to mean
a permanent dwelling place, or domicile, to which a person, when absent,
intended to return. In determining whether a person's residence in Puerto Rico
could continue during a stay abroad, the Department examined the nature of the
absence (prolonged and permanent or temporary due to employment, schooling, and
so forth), evidence of permanent ties to Puerto Rico (such as ownership of
property, payment of taxes, and/or presence of family), and the possible
existence of a fixed home elsewhere.
8 FAM 302.2-2(B) Status
Acquired by Birth in Puerto Rico After Annexation but Before March 2, 1917
(CT:CITZ-1; 06-27-2018)
a. A child born in Puerto Rico after April 11, 1900,
and before March 2, 1917, acquired Puerto Rican citizenship and non-citizen
U.S. nationality if one of its parents was a Puerto Rican citizen under Section
7 of the Act of April 12, 1900 (see 8 FAM
302.2-2(A)).
b. If the child was born out of wedlock to a Puerto
Rican father and an alien mother, legitimation was necessary before the child
acquired the father's status. A child who acquired Puerto Rican citizenship
through a parent could benefit from the act of March 2, 1917 (see 8 FAM
302.2-2(C)).
c. A child born in Puerto Rico to alien parents did
not acquire U.S. nationality or Puerto Rican citizenship at birth. Aliens born
in Puerto Rico could acquire citizenship by naturalization in the usual fashion
or by taking the steps required by the act of March 2, 1917, or the act of
March 4, 1927 (described in 8 FAM
302.2-2(C)), or by meeting the conditions specified by the Act of June 27,
1934 (see 8
FAM 302.2-2(D)).
8 FAM 302.2-2(C) U.S.
Citizenship Granted to Citizens of Puerto Rico and Certain Natives of Puerto
Rico
(CT:CITZ-1; 06-27-2018)
a. Act of March 2, 1917:
(1) The act of March 2, 1917 (39 Stat. 953) granted
U.S. citizenship as of that date to all citizens of Puerto Rico and to certain
natives of Puerto Rico who had been absent from Puerto Rico on April 11, 1899,
but had returned to reside permanently. Section 5 of the Act provided:
That all citizens of Puerto Rico, as defined by
section seven of the act of April twelfth, nineteen hundred ... and all natives
of Puerto Rico, who were temporarily absent from that island on April eleventh,
eighteen hundred and ninety‑nine, and have since returned and are
permanently residing in that island, and are not citizens of any foreign
country, are hereby declared, and shall be deemed and held to be, citizens of
the United States: Provided, That any person hereinbefore described may retain
his present political status by making a declaration, under oath, of his
decision to do so within six months of the taking effect of this act before the
district court in the district in which he resides...
(2) The following persons who did not make the
declaration mentioned in section 5 became U.S. citizens as of March 2, 1917:
(a) All citizens of Puerto Rico regardless of their
place of residence on March 2, 1917; and
(b) All natives of Puerto Rico who were not citizens of
any foreign country and who were absent from Puerto Rico when the United States
acquired it but had returned to Puerto Rico and were residing there on March
17, 1917.
(3) In addition, alien women who were married to
Puerto Rican citizens acquired U.S. citizenship automatically upon their
husbands' acquisition of U.S. citizenship pursuant to Section 5, unless they
were ineligible for naturalization;
(4) The opportunity to decline U.S. citizenship was
included in section 5 in recognition of the Puerto Rican nationalism of many
Puerto Ricans. The act of March 4, 1927, (44 Stat. 1418) allowed a person to repudiate
such a declaration within the year following the date of that Act and thereby
to acquire U.S. citizenship. Section 322 NA permitted persons who had declared
their intention not to become U.S. citizens under the act of March 2, 1917, to
acquire U.S. citizenship by making a declaration before the U.S. District Court
of Puerto Rico at any time;
(5) Other provisions of section 5 of the Act of March
2, 1917, not quoted in 8 FAM
302.2-2(B), permitted permanent residents of Puerto Rico who had been born there
to alien parents to acquire U.S. citizenship by declaring allegiance before the
U.S. District Court for Puerto Rico within 6 months after March 2, 1917, or
within 1 year of reaching age 21, if the person was still a minor on March 2,
1917. The act of March 4, 1927, amended section 5 to provide that qualified
persons who had not taken the opportunity to become U.S. citizens by making
such a declaration had another chance to do so before March 4, 1928.
8 FAM 302.2-2(D) U.S.
Citizenship of Persons Born in Puerto Rico On or After March 2, 1917, and
Before January 13, 1941
(CT:CITZ-1; 06-27-2018)
a. The act of March 2, 1917, as originally enacted, did
not make any provisions for acquiring U.S. citizenship by birth in Puerto Rico.
b. The first law specifically relating to the
acquisition of U.S. citizenship by birth in Puerto Rico was the act of June 27,
1934 (48 Stat. 1245), which amended the act of March 2, 1917, and stated, in section
5b, that:
All persons born in Puerto Rico on or after April
11, 1899 (whether before or after the effective date of this Act) and not
citizens, subjects, or nationals of any foreign power, are hereby declared to
be citizens of the United States: Provided, That this Act shall not be
construed as depriving any person, native of Puerto Rico, of his or her
American citizenship heretofore otherwise lawfully acquired by such person; or
to extend such citizenship to persons who shall have renounced or lost it under
the treaties and/or laws of the United States or who are now residing
permanently abroad and are citizens or subjects of a foreign country.....
c. Under this act, persons born in Puerto Rico after
April 10, 1899, who were not U.S. citizens on June 27, 1934, acquired U.S.
citizenship on that date unless they:
(1) Had acquired a foreign nationality at birth;
(2) Had in some way lost previously acquired U.S. citizenship before June 27, 1934; or
(3) Were on that date foreign citizens residing
abroad.
d. Under the same act, persons born in Puerto Rico on
or after June 27, 1934, but before January 13, 1941, became U.S. citizens at
birth, unless they acquired a foreign nationality at birth through a parent.
e. The act of June 27, 1934, was intended to confer
citizenship only on persons born in Puerto Rico who would otherwise be
stateless; thus, acquisition of a foreign nationality in any manner, including
by automatic operation of foreign law, would keep a person born in Puerto Rico
from benefiting from the act of June 27, 1934.
f. Absent other laws conferring citizenship, a person
born in Puerto Rico to two U.S. citizen parents could acquire U.S. citizenship
under either the original or the amended version of section 1993, rev stat.
(see 8 FAM
301.5). Such a person, who met the conditions specified in the 1934
amendment of the act of March 2, 1917, or Section 202 NA, was not obliged to
comply with applicable retention requirements.
g. Persons born in Puerto Rico to aliens from March 2,
1917 to January 13, 1941 acquired no claim to U.S. citizenship unless they:
(1) Met the conditions of the 1934 amendment to the act
of March 2, 1917;
(2) Were residing in the United States on January 13,
1941, when the Nationality Act of 1940 went into effect;
(3) Made a declaration before the District Court for
Puerto Rico upon reaching age 21 or within one year thereafter; or
(4) Were naturalized as prescribed by U.S.
law.
8 FAM 302.2-2(E) Effect of the
Nationality Act of 1940 on Persons Born in Puerto Rico
(CT:CITZ-1; 06-27-2018)
a. The Nationality Act of 1940, effective January 13,
1941, provided that:
SEC 202. 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.
b. To benefit from section 202, a person did not have
to be in Puerto Rico or other U.S. territory on January 13, 1941, as long as
the person's residence there or in other U.S. territory continued. In Puig
Jimenez v. Glover, 255 F.2d 54 (1st Cir., 1958), it was held that a woman born
in Puerto Rico in 1922 to Spanish permanent residents of Puerto Rico, who
accompanied her parents on a visit to Spain in 1936 and was unable to return to
the United States until July 14, 1941, because of the Spanish Civil War, could
still be considered a resident of Puerto Rico within the meaning of Section
202, NA and had acquired U.S. citizenship.
c. Puerto Rico came within the 1940 act's definition
of "United States." Persons born there on or after January 13, 1941,
acquired U.S. citizenship on the same terms as persons born in other parts of
the United States. The current laws are quoted in 8 FAM 302.2-1.
8 FAM 302.2-3 Status Acquired By
Birth Abroad to Puerto Rican U.S. Nationals
(CT:CITZ-1; 06-27-2018)
a. Section 7 of the Act of April 12, 1900 provided that
a child born any time after April 11, 1899, in any place to a person who became
a Puerto Rican citizen and a non-citizen U.S. national pursuant to the Treaty
of Peace with Spain and the Act of April 12, 1900, acquired the Puerto Rican
citizen parent's status at birth.
b. To acquire the father's status a child born out of
wedlock to a Puerto Rican father and an alien mother had to be legitimated.
c. A child who acquired Puerto Rican citizenship by
birth abroad to a Puerto Rican parent was entitled to U.S. citizenship
automatically under the act of March 2, 1917 (see 8 FAM
302.2-2(C)).