A 1990 paper by John L. A. de Passalacqua, “The Involuntary Loss of United States Citizenship of Puerto Ricans upon Accession to Independence by Puerto Rico”, brings up an enduring question that is once again in the spotlight: whether Congress could take away U.S. citizenship from people living in Puerto Rico if the territory were to become a sovereign nation.
“There is no question that by applying United States law to a hypothetical independent state or associated republic of Puerto Rico, Congress could establish conditions under which voluntary expatriation could be achieved by United States citizens wishing to renounce, relinquish or repudiate such citizenship,” he wrote in the Denver Journal of International Law & Policy. Current U.S. citizens could choose to become citizens of a Republic of Puerto Rico and give up their U.S. citizenship.
“It is also not ruled out that the legislature of an independent Puerto Rico (whether associated or not to the United States) could require as a condition of Puerto Rican citizenship that individuals holding United States citizenship relinquish, repudiate or renounce it. This would apply to both constitutional and legislative citizenships.”
These two possibilities — people choosing to give up U.S. citizenship in order to become Puerto Rican citizens and Puerto Rico demanding that people do so — are both legally possible.
If a new Republic of Puerto Rico were willing to allow dual citizenship for U.S. citizens and the new citizens wanted that dual citizenship, could Congress refuse?
According to de Passalacqua, the answer is yes.
Constitutional or legislative citizenship
First, de Passalacqua distinguishes between constitutional citizenship, which is citizenship guaranteed under the 14th amendment to the U.S. Constitution, and legislative citizenship.
People born in a state or naturalized in a state have 14th amendment citizenship, the kind guaranteed by the Constitution. This kind of citizenship, says de Passalacqua with support from several Supreme Court cases, can be given up by an individual, but it cannot be taken away except for good reasons. Treason, for example, would be an acceptable reason under the law to strip someone of U.S. citizenship. However, becoming a citizen of another nation is generally not enough.
So an individual born in Florida and living in Puerto Rico at the moment Puerto Rico becomes an independent nation (with or without a Compact of Free Association) could continue to hold U.S. citizenship throughout his or her life, if the laws of the new Republic of Puerto Rico allowed it.
People who are citizens because of legislation, such as the Jones-Shafroth Act of 1917 which declared Puerto Ricans to be U.S. citizens, have that citizenship only as long as Congress allows it. They got their U.S.citizenship through an act of law, and it can be taken away by an act of law.
Congress could therefore make a law that citizens of a new nation of Puerto Rico could continue to hold U.S. citizenship only if they declare allegiance to the United States and lived in a state for some period of time. There is legal precedent on this as well.
Independence or Associated Republic – Any Difference?
The author explains that “in the case of an independent Puerto Rico in free association with the United States (associated republic), the same conclusions apply as those reached for an independent Puerto Rico.”
He likewise points out that there would be no U.S. federal courts or administrative agencies in an associated republic of Puerto Rico or in an independent nation of Puerto Rico, which could further complicate the efforts of Puerto Rican citizens who seek U.S. citizenship on a practical level.
Sovereignty and Immigration Policy
de Passalacqua also reminds readers that the laws governing immigration and citizenship are up to the sovereign nations involved. The United States makes its own laws about its own citizenship and immigration processes and would continue to do without input from or agreement with a sovereign nation of Puerto Rico, and vice versa.
