UNCLASSIFIED (U)

8 FAM 302.4

Special Citizenship Provisions Regarding Panama

(CT:CITZ-35;†† 05-15-2020)
(Office of Origin: †CA/PPT/S/A)

8 FAM 302.4-1 †Introduction

(CT:CITZ-35;†† 05-15-2020)

The purpose of this subchapter is to provide detailed historical background and guidance about special provisions in U.S. nationality law for Panama.† This subchapter includes guidance regarding:

(1)† Acquisition of U.S. citizenship by birth in the Panama Canal Zone between February 26, 1904 and October 1, 1979; and

(2)† Acquisition of U.S. citizenship by birth in Panama of persons born to U.S. citizens employed by the U.S. Government or the Panama Railroad Company on or after February 26, 1904.

8 FAM 302.4-2 †Birth in Panama AND PANAMA CANAL ZONE Special Provisions

(CT:CITZ-35;†† 05-15-2020)

a. The Panama Canal Zone, (also known as the Canal Zone and the Isthmian Canal Zone), was never considered part of the United States or designated as an outlying possession for purposes of section 201 Nationality Act of 1940 (NA) or Immigration and Nationality Act (INA) Section 301:

(1)† The "Isthmian Canal Convention" (33 Stat. 2234, 10 Bevans 663) dated November 18, 1903, (and which in effect the Republic of Panama granted the United States occupation and control of the area of the then unbuilt Panama Canal, which became known as the Panama Canal Zone), was ratified, proclaimed, and entered into force February 26, 1904; and

(2)† The Panama Canal Zone was abolished on October 1, 1979 (Panama Canal Treaty, 33 UST 39).

NOTE:† The Consul at Kingston, in reply to his inquiry on a case involving the point who held sovereignty over the Panama Canal Zone, was informed on March 17, 1927 that "The Department is of the opinion that persons born in the Canal Zone of alien parents since the annexation of the Zone do not thereby acquire American nationality" (III, Hackworth, Digest of International Law, pp. 117-118).

b. Incorporated and Unincorporated Territories:

(1)† The U.S. Supreme Court ruled in Downes v. Bidwell (182 U.S. 244) (1901) that unincorporated territories are not considered part of the United States; and

(2)† The Supreme Court ruled in Rasmussen v. United States (197 U.S. 516) (1905), that the Constitution applies for incorporated territories of the United States.

c.† Until August 4, 1937, there was no special law relating to U.S. citizens born in Panama.† Acquisition of U.S. citizenship was governed by Section 1993, Revised Statutes (RS):

(1)† A person born in the Canal Zone before May 24, 1934, acquired U.S. citizenship at birth if the father was a citizen of the United States at the time of the applicant's birth but the rights of citizenship shall not descend to children whose fathers never resided in the United States previous to the birth of such child;

(2)† If the birth occurred on or after May 24, 1934, but prior to August 4, 1937, U.S. citizenship was acquired at birth if the father or mother was at the time of birth a citizen of the United States but the rights of citizenship shall not descend to children whose fathers or mothers never resided in the United States previous to the birth of such child; and

(3)† The act of May 24, 1934 amending section 1993 RS also included retention requirements.† With respect to birth in the Canal Zone and the Republic of Panama, those retention requirements were superseded by the August 4, 1937 Act.† However, because the 1937 act applies retroactively, as does its modern version, section 303(b) INA, requires no retention provisions.

d. On August 4, 1937, the U.S. Congress enacted special legislation, "an act Relating to the Citizenship of Certain Classes of Persons Born in the Canal Zone or the Republic of Panama" (50 Stat. 558), governing the conditions under which U.S. citizenship may be acquired by birth in Panama.† This legislation (and its successor statutes (section 203(a) NA and 203(b) NA; sections 303(a) and 303(b) INA as explained below) does not apply to all children born in Panama.† It is limited to children of qualifying parents.† Additionally, this Act was retroactive to February 26, 1904 "Isthmian Canal Convention."† (See also 8 FAM 302.1.)† Under the act:

(1)† No child born in the Canal Zone after October 1, 1979 can acquire U.S. citizenship under Section 201(a) NA or Section 303(a) INA because the Panama Canal Zone ceased to exist on that date.† Section 303(a) is inoperable, due to the fact that the Panama Canal Zone no longer exits; and

(2)† The provisions of section 203(b) NA or section 303(b) INA still apply today.† Section 303(b) of the INA was not amended by either the Panama Canal Treaty or by the legislation that effected the elimination of the Panama Canal Commission.† Furthermore, the statute itself has not been repealed, either explicitly or by implication.† Section 303(b) continues in force.

f.† There may still be U.S. citizens today whose claim to U.S. citizenship arises under either section 203(a) NA or INA section 303(a) by birth prior to October 1, 1979.† The provisions of section 203(b) NA or section 303(b) INA still apply today.

g. The Panama Railroad Company was re-designated the Panama Canal Company.† The Commission functioned as an independent agency with the primary purpose of operating and maintaining the Panama Canal and associated facilities in cooperation with the Republic of Panama.† On December 31, 1999, the Commissionís duties and sovereignty over the canal were transferred to the Republic of Panama, upon the termination of the Panama Canal Treaty of 1977.

h. Residence, physical presence, legitimation and retention:

(1)† Under the act of 1937, section 203 NA and section 303 INA, a child born in the Panama Canal Zone or in the Republic of Panama on or after February 26, 1904, to a U.S. citizen employee of the U.S. Government or the Panama Railroad Company is automatically a U.S. citizen at birth even if the citizen parent had never previously resided or been physically present in the United States;

(2)† There are/were no retention requirements for a person who acquired U.S. citizenship under the act of 1937, section 203 NA and section 303 INA; and

(3)† Birth out of wedlock:

(a)† As noted above, physical presence or residence in the United States by the U.S. citizen parent(s) prior to child's birth is not required under Section 303 INA and its predecessor statutes.† This also applies to the U.S. citizen parent(s) of an applicant born out-of-wedlock in the Canal Zone or Republic of Panama;

(b)† INA 303 does not require an affirmative act of legitimation of a child born out of wedlock in Panama.† The Department's view is that since 309 INA makes no reference to section 303(b) INA, out-of-wedlock births and in-wedlock births for the purposes of section 303(b) are to be adjudicated in the same manner.† Thus, a U.S. citizen father of a child born out-of-wedlock in the Canal Zone or in the Republic of Panama does not have to established a legal relationship or provide financial support to his out-of-wedlock offspring.† An additional view is that Panama law treats all children born in Panama as legitimate; thus any requirement for legitimation that may be ready into INA 303 is satisfied by the provisions of Panamanian law; and

(c)† A child born in the Canal Zone or in the Republic of Panama out of wedlock to a U.S. citizen father or mother employed by the U.S. Government or the Panama Railroad Company acquires U.S. citizenship at birth.

i.† Applicants not subject to the act of 1937:

(1)† Applicants born in Panama to U.S. citizen parents who did not have the qualifying employment of that Act are not subject to the provisions of the Act of 1937;

(2)† Acquisition of citizenship for these individuals was governed by section 1993 RS, which on May 24, 1934, was amended to include retention requirements.† However, these retention requirements were superseded retroactively by the Act of 1937;

(3)† Many persons who worked on the construction or operation of the Panama Canal lived in the Republic of Panama instead of the Canal Zone.† Prior to the Act of August 4, 1937 their children, born in the Republic of Panama, could claim U.S. citizenship only if their cases came under section 1993 RS including the amendment of the Act of May 24, 1934; and

(4)† Section 2 of the act of August 4, 1937 therefore gave these children very liberal treatment.† There were no residence requirements for transmission of citizenship, and the U.S. citizen mother in certain cases could also transmit citizenship prior to 1934.

j.† In cases outside the scope of section 303(b) INA, and its predecessor statutes, the general laws that govern the acquisition of U.S. citizenship by birth abroad apply.

k.† Section 303(b) interpretation:† Section 303(b) INA continues in force.† Recent court cases clearly indicate that Section 303 is still in effect.† However, in interpreting 203(b) NA, the Department is of the opinion that the U.S. Government employee who is also the U.S. citizen parent must be assigned to the Republic of Panama at the time of the child's birth.† Any other position would, in the Department's view, create a loop hole never intended by Congress when it enacted Section 303 (and its predecessor, Nationality Act section 203) to protect U.S. Government interests in a functioning Panama Canal.

l.† Evidence to prove a claim to U.S. citizenship under section 303(b) INA would include:

(1)† The child's Panamanian birth certificate or other proof of the child's birth to a U.S. citizen (the blood relationship must be established);

(2)† The parents' marriage certificate, if applicable; and

(3)† Proof of the citizen parent's employment by the U.S. Government or the Panama Railroad Company at the time of the child's birth.

NOTE:† On November 2, 1966, in Public Law 89-710, Congress authorized the Attorney General to issue in the Canal Zone Certificates of Citizenship to persons eligible to receive them under Section 341 INA, (i.e., persons who are citizens under any of the applicable cited provisions of the section would no longer be required to travel to the United States to obtain a Certificate of Citizenship.

 

UNCLASSIFIED (U)