UNCLASSIFIED (U)

8 FAM 102.5

Certain Other Authorities

(CT:CITZ-54;   04-09-2021)
(Office of Origin:  CA/PPT/S/A)

8 FAM 102.5-1  Delegations of Authority

(CT:CITZ-54;   04-09-2021)

a. Delegation of Authority 213 of July 29, 1994, designated the Assistant Secretary of Consular Affairs as Administrator, fulfilling a statutory requirement under the Immigration and Nationality Act (INA) 104(b).

b. Delegation of Authority 214 of September 20, 1994, delegated to the Assistant Secretary for Consular Affairs the authorities conferred upon the Secretary by 22 U.S.C. 211a to grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries, and the authorities conferred upon the President by 22 U.S.C. 211a; and delegated to the Secretary by Executive Order (E.O.) 11295, to designate and prescribe rules governing the granting, issuing and verifying of passports.

c.  Delegation of Authority 271 of January 30, 2004, delegated to the Assistant Secretary for Consular Affairs the authorities conferred upon the President by INA 215(a) and (b), and assigned to the Secretary with respect to U.S. citizens by E.O. 13323, including the authority to prescribe rules for administering the responsibility for issuing passport books and cards, and for requiring the use of a U.S. Passport to enter and depart the United States.

d. Delegation of Authority 465 of February 28, 2019, delegated to the Assistant Secretary for Consular Affairs the following functions and authorities:

(1)  The authority under 42 U.S.C. 5174b(1)(A)) to provide a waiver of the United States passport application fee for individuals who lost their United States passport in a qualifying major disaster; and

(2)  The authority under 42 U.S.C. 5174b(1)(B)) to provide a waiver of the file search fee for a United States passport for individuals who lost their United States passport in a qualifying major disaster.

8 FAM 102.5-2  Executive Orders

(CT:CITZ-43;   12-04-2020)

a. Executive Order 11295 of August 5, 1966, "Rules Governing the Granting, Issuance and Denial of United States Passports," which delegates to the Secretary of State the authority conferred on the President of the United States by 22 U.S.C. 211(a) to make regulations regarding passports.

b. Executive Order 13323 of December 30, 2003, “Assignment of Functions Relating to Arrivals in and Departures from the United States,” which delegates authority under INA 215(b) to the Secretary of State.

c.  Executive orders designating public international organizations (IOs) pursuant to 22 U.S.C. 288 are available in the annotated version of the statute (22 U.S.C.A. 288) (which includes whether the designation has been revoked, information about the revocation has been included).

8 FAM 102.5-3  Treaties and Conventions

(CT:CITZ-43;   12-04-2020)

a. The United States is a party to the Vienna Convention on Consular Relations (VCCR):

(1)  Article 5(d) of the VCCR provides that consular functions include issuing passports and travel documents to nationals of the sending State); and

(2)  Article 5(f) of the VCCR provides that consular officers may "act as notary and civil registrar and in capacities of a similar kind, and perform certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State."

b. Article 1, U.S. - Mexico "Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary", November 23, 1970, TIAS 7313; entered into force April 18, 1972.

c.  The United States is a party to the International Covenant on Civil and Political Rights.  (See Treaties in Force to confirm whether the treaty is in force in the host country.)  Article 24 of this treaty provides:

“2. Every child shall be registered immediately after birth and shall have a name.”

d. Convention Between the United States and Denmark:  Article 6 of the convention states that:

Danish citizens… who remain in the islands may preserve their citizenship in Denmark by making before a court of record, within one year from the date of the exchange of ratifications of this convention, a declaration of their decision to preserve such citizenship; in default of which declaration they shall be held to have renounced it, and to have accepted citizenship in the United States; for children under eighteen years the said declaration may be made by their parents or guardians.  Such election of Danish citizenship shall however not, after the lapse of the said term of one year, be a bar to their renunciation of their preserved Danish citizenship and their election of citizenship in the United States and admission to the nationality thereof on the same terms as may be provided according to the laws of the United States, for other inhabitants of the islands

The civil rights and the political status of the inhabitants of the islands shall be determined by Congress, subject to the stipulations contained in the present Convention

e. 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."

f.  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;

Article I

"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.

8 FAM 102.5-4  Jointly-Executed Memoranda of Understanding

(CT:CITZ-43;   12-04-2020)

a. The Department and Department of Defense (DoD) have indicated in a joint message (Airgram Circular CG-673 of April 12, 1960) that those members of the Armed Forces who are authorized to administer oaths under 10 U.S.C. 1044(a), are authorized and empowered to administer oaths within the meaning of 22 U.S.C. 213.  This authorization extends to any oath necessary in connection with form DS-2029, or as otherwise authorized in 8 FAM.

b. A Memorandum of Understanding between the DoD and the Department details the implementation of the DoD Passport Application Acceptance Program and those authorized by the Department to administer the program.

8 FAM 102.5-5  Other Opinions

(CT:CITZ-43;   12-04-2020)

a. The Board of Immigration Appeal's (BIA)'s December 26, 1961 and March 7, 1962 decision, which was approved by the Attorney General on May 24, 1962in the case of Freddie Norman Chatty-Suarez,. Matter of C-S- In Deportation Proceedings, 9 I. & N. Dec. 670 (1962).  In that case, the Board held, in keeping with Rogers v Patokoski, 271 F.2d 85z8 (9th Cir. 1959), that a person could not be expatriated under Section 349(a)(5) of the Immigration and Nationality Act of 1952 as originally enacted (voting in a foreign election) or by performing any other potentially expatriating act if the person was not aware at the time that he/she was a U.S. citizen.  Although both cases involved expatriation and not retention requirements, the Department also adopted a "defense of unawareness" to be applied when a person who was unaware of a claim to U.S. citizenship would otherwise have ceased to be a U.S. citizen for failure to meet the retention requirements in NA 201(g) and INA 301(g).

b. 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."

c.  Immigration and Nationality Service 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:

(1)  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."

(2)  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."

(3)  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 INA 301(a)(7).  In the Matter of V concluded that:

"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 102.5-6  Presidential Proclamations

(CT:CITZ-43;   12-04-2020)

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."

8 FAM 102.5-7  Solicitor of the Department of State

(CT:CITZ-43;   12-04-2020)

a. 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

b. 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).

UNCLASSIFIED (U)