A Sad Commentary On American Justice

The U.S. Supreme Court slammed the door on Filipino-Americans born in the Philippines. By its denial to review the appellate court’s decision, the Court closed the window of opportunity to address a wider issue of national importance which cuts to the very core of America, its loyalties and the allegiance of its citizens.

The case arose when the [former] Immigration and Naturalization Service [“INS”] decided after 2 years that they committed an “error” in issuing the certificate, and after protracted proceedings, cancelled James’s [not his real name] certificate of citizenship. After exhausting administrative remedies, James brought an action for declaratory judgment and the district court declared him a U.S. citizen.

James, a “natural” son [his parents married in 1958] of a U.S. citizen father and a U.S. national mother, was born in the Philippines in 1931 during the territorial period [1898-1946]. After his father died in 1966, James sought to establish claim to U.S. citizenship, being frustrated by the interpretation given by the Department of State. He finally prevailed and was issued a certificate of citizenship in 1992 and thereafter his U.S. citizenship passport. His wife was admitted as a lawful permanent resident and resides with him, as well as his youngest children who immigrated as minors.

On appeal, the appellate court ruled that “residence in the Philippines during the territorial period does not qualify as residence ‘in the United States’ and ‘the rights of citizenship shall not descend to children whose fathers never resided in the United States’ under Revised Statutes §1993,” effectively reversing the decision of the district court.

Revised Statutes §1993, originally enacted in 1855 when the U.S. was not yet a colonial power provides that “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States, but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”

Under strict interpretation of the statute, children of U.S. citizens born in the Philippines during the territorial period were not born outside the “jurisdiction” of the United States, and therefore, the statute does not apply. Yet they were not born “in the United States” under Article XIV, and could not gain citizenship in that manner. In other words, the absurd situation arises that these children, disenfranchised of their citizenship, could be considered to have fallen through a “statutory crack,” an aberration in law.

While children falling in the “statutory crack” may have been disqualified under the literal reading of the statute, the agency [INS] did not engage in the literal practice of disqualification for many years. Instead, U.S. agencies applied or interpreted or “constructed” Revised Statutes §1993 provisions to include those children as citizens. Likewise, residence in the outlying possessions was deemed sufficient to transmit citizenship to a child. James’s father, born and lived all his life in the Philippines, derived his U.S. citizenship at birth from his father [James’s grandfather] despite not being born outside the “jurisdiction” of the United States. R.W. Flournoy, Assistant to the Legal Adviser, Department of State, at the hearings before the House of Representatives, Subcommittee of the Committee on Immigration and Naturalization, 76^th Congress, H1073-6, Nationality Act of 1940, testified:

“We have been holding in the State Department for years that, notwithstanding the peculiar language of section 1993 of the Revised Statutes, which relates to a child born outside the territory and jurisdiction of the United States, we have been holding that that is applicable to a child born in one of the outlying possessions; otherwise those children would be aliens.” [Revise And Codify Nationality Laws, pp. 55-56].

James’s entire life has been literally turned upside down by this event – cancellation or revocation of citizenship – when in truth and in fact the sole basis of the upheaval is a purported “error” that INS freely admitted in the application or “construction” of Revised Statutes §1993 which, if taken strictly, does not even apply to him. The liberties taken by INS in reading into the Statute a “construction” which excludes James from his citizenship is not only inequitable and unfair under the circumstances, but is at cross purposes with the substance and intent of the law itself. James in truth has no chance under the Statute, not because he is disqualified by it, but because it does not apply to him. What the INS asked the court to uphold is the application, interpretation or “construction” the INS itself gives to the Statute, which unfairly disqualifies James.

The Department of State since 1912 has held that Revised Statutes §1993 apply as of the date of birth, to child born out of wedlock in the outlying possessions of the United States, provided paternity is established. The Attorney General sustained the “construction” in an opinion of April 7, 1920. [32 Op. Atty. Gen. 162]. Ironically, the same Attorney General now holds that residence in the Philippines during the territorial period does not satisfy the residence of the Statute. Since the appellate court has sustained a new statutory “construction”, will the Attorney General cancel the certificate of citizenship “illegally” issued to illegitimate children born in the Philippines since 1912?

Within In re Mendiola [647 F. Supp. 839 (S.D.N.Y 1986)], the originator of the chain of citizenship was a U.S. born great grandfather. All subsequent generations lived only in the Philippines, and all were granted certificates of citizenship. Will the Attorney General now apply the court-sanctioned “construction” and cancel certificates issued to the generations of Meniola’s?

Acquisition of birthright citizenship is retroactive to birth – the citizen is considered to have acquired citizenship at birth and to have always maintained that status, even if that status is not confirmed until adulthood. While there are conditions precedent, for some categories, conditions subsequent or concurrent such as the modern retention requirements, once granted, there is no second class citizenship status recognized either under the constitution or in the statute.

Here, James was determined by the INS to be a citizen of the United States at the time of his birth. He was administered and voluntarily took an oath of allegiance to the United States at the time of that determination, effectively renouncing his Philippines citizenship. He applied for and obtained a U.S. passport. Upon his last entry to the U.S., he was admitted as a U.S. citizen. The Court’s decision has rendered him stateless, a cruel and unusual punishment, unable to obtain passport to travel and has been deprived peace of mind from fears of deportation and separation from loved ones.

Current statute provides for the cancellation of a certificate of citizenship for those who “illegally” acquired citizenship at birth, but clearly states that cancellation of the certificate des not affect the underlying citizenship status of the person in whose name it was issued. There is absolutely no process for the removal of the citizenship, the nullification of the oath taken, or a return to former status, since from birth the status of the individual was that of the citizen.

The absence of a de-citizenship process and the express inclusion of the provision that cancellation of the certificates does not alter the underlying status is powerful evidence that James’s case should have been accorded the absolute scrutiny by the Supreme Court. Congress has had ample opportunity to correct this situation if it deemed it to be a defect. The Illegal Immigration Reform and Immigration Responsibility Act of 1966 was a comprehensive overhaul of the Immigration and Nationality Act, but did not include a provision to correct this alleged “defect.” James contends that this is because it is no defect in law, but rather a clear message that birthright citizenship, once granted, is not to be taken away.

It is clear that the court-sanctioned “construction” of Revised Statutes §1993 is flawed. Yet, the Supreme Court has declined to exercise its power of judicial review and takes issue with the narrow and myopic reading the appellate court gave to Revised Statutes §1993 in its adoption of the position of the Attorney General. As a result, the agency can now rightly lay claim to the enviable power to wield the unrestrained sword of bias and prejudice – today to interpret in favor, tomorrow, to interpret against. The many-horned hydra of arbitrariness, capriciousness and unbridled discretion shall rear its ugly head.