8 FAM 301.12
Special Citizenship Provisions Regarding the Philippines
(Office of Origin: CA/PPT/S/A)
8 FAM 301.12-1 Introduction
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
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:
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 Tydings–McDuffie 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;
"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
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:
"Citizenship—Acquisition at birth abroad—Section 301(a)(7) of 1952 Act—Physical presence of citizen parent—Savings 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
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
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 Luce–Celler 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
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 Roosevelt’s military order of July 26, 1941. President Roosevelt invoked his power under the Philippine Independence Act, Public Law No. 73–127, § 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'."
(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 101–649, 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.