Andres Cordova has written an essay at El Vocero examining the issue of citizenship under independence, with or without a Compact of Free Association. “The misnamed draft consensus Puerto Rico Status Act bill implies certain premises that require further discussion, particularly with regard to American citizenship under Independence under its two modalities,” he writes. “The draft provides that under Independence or Free Association those who already possess American citizenship by birth (known as jus soli) will retain it, but from the transfer of sovereignty, birth in Puerto Rico will cease to be a reason for its acquisition, but those born to parents with citizenship (known as jus sanguinis) may be eligible to apply for it for the period of time covered by the first agreement between the United States and Puerto Rico.”
What is jus soli?
“Jus soli” is a Latin phrase translating into English as “right of the soil.” It refers to citizenship based on place of birth. In more than 30 countries, including the United States, children born within the borders of the country are automatically citizens of that nation.
Not all countries follow the custom of jus soli. For example, the Dominican Republic ended just soli in 2013. Australia also does not automatically confer citizenship on babies born in Australia.
If Puerto Rico were to become an independent country, the new nation would have to decide whether or not people born in Puerto Rico would automatically become citizens of Puerto Rico. At present, the territory of Puerto Rico provides jus soli U.S. citizenship: everyone born in Puerto Rico is a U.S. citizen. This will continue to be true if Puerto Rico becomes a State.
What is jus sanguinis?
The Latin phrase “jus sanguinis” means “right of blood.” For nations that give jus sanguinis, a child has the same nationality as his or her parents, regardless of where the child was born. The child of a French citizen is a citizen of France, wherever the birth takes place.
The United States uses both just soli and jus sanguinis.
A child born outside the United States to a U.S. citizen is often a U.S. citizen, but not always. There are requirements based on the circumstances of the parents:
- The child’s legal parents must be married to each other and at least one of them must be the biological parent of that child.
- The parent must meet residence or physical presence requirements. These requirements vary over time and can change again in the future. The parent must meet the physical presence requirements which were current when the child was born.
There are many complicated possibilities here, and the law specifies the outcomes of many of them. For example, what would be the position of a baby born abroad to a man who is a U.S. citizen who is married to another man who is not a U.S. citizen, and whose mother is a U.S. citizen who lives in the United States and is not married to the father? The law is complicated because it covers all these various scenarios.
This law also changes from time to time. In some cases, a person born before noon would have to meet a different set of criteria from someone born after noon on the same day. Since the law changes, decisions in each case must be made on the basis of the law as it was in force at the time of birth.
What would this mean in a nation of Puerto Rico?
“The due process of law required to demarcate American citizenship from Puerto Rican citizenship under the assumption of independence/sovereignty is already implicitly contemplated in the naturalization processes of the Immigration and Naturalization Act for the children of American citizens born abroad,” Cordova wrote. “Anyone who wanted to retain their American citizenship would have to take the affirmative acts required by those born abroad.”
If Congress agrees that current Puerto Rico-born U.S. citizens may keep their citizenship, their children would presumably be subject to the same complex rules as children of U.S. citizens born in other foreign jurisdictions.
However, Cordova makes a good point. “It would have been enough for the draft to include language that said that under independence/sovereignty the continuity of American citizenship would be governed by the provisions of the Immigration and Naturalization Act,” he pointed out. “The lack of that language forces us to ask: Why its absence?”
Perhaps the drafters of the law envision a special set of rules for the children of people born in Puerto Rico before independence. Perhaps they could acquire citizenship regardless of marital status or physical presence or other factors affecting other children of U.S. citizens who are born abroad. If this is the intention, the bill would represent a significant change in immigration law and further review and analysis would be in order.