Valmonte v. I.N.S.

• Decision Date: 11 February 1998
• Docket Number: Docket No. 96-4194
• Citation: 136 F.3d 914
• Parties: Rosario Santillan VALMONTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 914

136 F.3d 914

Rosario Santillan VALMONTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 96-4194.

United States Court of Appeals Second Circuit.

Argued Aug. 29, 1997.

Decided Feb. 11, 1998.

Elly Velez Pamatong, Hollis, NY, for Petitioner.

Jonathan E. Demson, Assistant United States Attorney, Southern District of New York (Mary Jo White, United States Attorney, Steven M. Haber, Assistant United States Attorney, Southern District of New York, New York City, of counsel), for Respondent.

Before: MESKILL and JACOBS, Circuit Judges, and KORMAN, District Judge. ^*

MESKILL, Circuit Judge:

This is a petition for review of a decision of the Board of Immigration Appeals upholding an immigration judge's decision to deny petitioner's application for suspension of deportation and order petitioner deported to her native Philippine Islands (Philippines). The issue on appeal is whether petitioner's birth in the Philippines while that country was a United States territory confers on her United States citizenship under the Fourteenth Amendment. We conclude that it does not and we deny the petition.

BACKGROUND

I

Petitioner Rosario Santillan Valmonte was born in the Philippines on August 30, 1934. On February 16, 1989, she entered the United States under a visitor's visa which authorized her to remain in the United States until August 16, 1989. Petitioner remained in the United States beyond the expiration of her visitor's visa.

On April 28, 1993, the INS served on petitioner an order to show cause and notice Petitioner appealed the immigration judge's decision to the Board of Immigration Appeals (BIA). The BIA dismissed the appeal on September 24, 1996, concluding that petitioner had not met the statutory criteria for suspension of deportation. The BIA granted petitioner the option to depart voluntarily from the United States within thirty days from the dismissal of the appeal.

                of hearing, charging her with deportability under section 241(a)(1)(B) of the Immigration and Nationality Act of 1952 (the "INA"), 8 U.S.C. § 1251(a)(1)(B). 1  At her deportation hearing, petitioner admitted the factual allegations contained in the order to show cause and conceded deportability.  She applied for suspension of deportation under former section 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1). 2  On April 3, 1995, the immigration judge denied petitioner's application for suspension of deportation and ordered her deported to the Philippines.  In lieu of deportation, the immigration judge granted petitioner the option to depart voluntarily from the United States pursuant to section 244(e)(1) of the INA, 8 U.S.C. § 1254(e)(1), provided that she depart by April 1, 1996
                

On December 16, 1996, petitioner timely petitioned this Court pursuant to section 106(a) of the INA, 8 U.S.C. § 1105a(a), to deny enforcement of the BIA's decision. ³ Petitioner argues that under the Fourteenth Amendment she is a United States citizen by virtue of her birth in the Philippines in 1934, during the period when the Philippines were a United States territory. We disagree.

Petitioner's birth in the Philippines during its status as a United States territory does not confer on her United States citizenship under the Fourteenth Amendment. The petition is therefore denied. Before discussing the merits of petitioner's argument, we briefly chronicle the history of the Philippines' status as a United States territory.

II

The United States acquired the Philippines by treaty at the close of the Spanish-American War. Treaty of Peace between the United States of America and the Kingdom of Spain, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754 (hereinafter "Treaty of Paris"). The Treaty of Paris established that the "civil rights and political status of the native inhabitants of the [Philippines] ... [would] be determined by the Congress." Treaty of Paris, art. IX, 30 Stat. at 1759. The Treaty did not contain any provision incorporating the inhabitants of the Philippines as citizens of the United States.

In 1902, after a period of military rule in the Philippines, the United States Congress enacted the Philippine Government Act, establishing the terms of the United States' civilian rule of the Philippines. See Philippine Government Act, ch. 1369, 32 Stat. 691 (1902). The Philippine Government Act provided that all inhabitants of the Philippines as of April 11, 1899 (who had not elected to preserve their allegiance to Spain) would be "deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States." Id. § 4, 32 Stat. at 692; see also Philippine Autonomy Act, ch. 416, § 2, 39 Stat. 545, 546 (1916) (same). The Philippine Government Act did not make the inhabitants of the Philippines citizens of the United States but conferred on them a status popularly referred to as "nationals." See 4 Charles Gordon et al., Immigration Law and Procedure § 91.01[b], at 91-5 (rev. ed. 1997) (The term "national" The United States exercised complete sovereignty over the Philippines. See Fourteen Diamond Rings v. United States, 183 U.S. 176, 179, 22 S.Ct. 59, 60, 46 L.Ed. 138 (1901) (observing that the Philippines, following its cession by Spain, was under the "complete and absolute sovereignty and dominion of the United States"). By congressional action, the United States organized a tripartite system of government in the Philippines, over which the United States reserved ultimate control. ⁵ Congress established the office of the Governor General of the Philippine Islands who would be appointed by the United States President, with the advice and consent of the Senate. The Governor General exercised "supreme executive power" although his decisions were subject to the President's approval. Philippine Autonomy Act, supra, § 21, 39 Stat. at 552-53. The Philippine Legislature was required to report the enactment of all laws to Congress, and Congress reserved the right to annul those laws. Id. § 19, 39 Stat. at 551. The President, with the advice and consent of the Senate, appointed the Justices of the Philippine Supreme Court, id. § 26, 39 Stat. at 555, and the Philippine Supreme Court's decisions, with minor exceptions, were subject to review by the United States Supreme Court, id. § 27, 39 Stat. at 555.

                referred to non-citizen inhabitants of territories that the United States had acquired outside of its continental limits who nevertheless owed permanent allegiance to the United States and who were entitled to the United States' protection.).  The status was a "convenient construct for those who favored territorial expansion but did not wish to make the people of the new territory citizens of the United States or otherwise suggest that they might aspire to equality under the American constitutional system."   Jose A. Cabranes, Citizenship and the American Empire:  Notes on the Legislative History of the United States Citizenship of Puerto Ricans 5, n. 12 (1979). 4  Notably, under the Philippine Government Act, the Philippines were specifically excluded from section 1891 of the Revised Statutes of 1878, which provided that "[t]he Constitution and all laws of the United States ... shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States."   Philippine Government Act § 1, 32 Stat. at 692;  see Rev. Stat. of 1878, ch. 1, § 1891, 18 Stat. 325, 333 (1874)
                

In 1934, thirty-five years after the United States acquired the Philippines from Spain, Congress adopted the Philippine Independence Act which provided for the adoption of a Philippine Constitution and the withdrawal of United States sovereignty ten years thereafter. Philippine Independence Act, ch. 84, § 10(a), 48 Stat. 456, 463 (1934) (codified as amended at 22 U.S.C. § 1394). Furthermore, citizens of the Philippines, formerly "nationals" of the United States, were to be treated as aliens under the United States' immigration laws. Id. § 8(a)(1), 48 Stat. at 462.

On July 4, 1946, the United States declared the Philippines to be an independent nation, terminating the Philippines' status as a United States territory. Proclamation No. 2695, 60 Stat. 1352, 11 Fed.Reg. 7517 (1946), reprinted in 22 U.S.C. § 1394. Upon this final and complete withdrawal of American sovereignty, "the immigration laws of the United States ... appl[ied] to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries." Philippine Independence Act, supra, § 14, 48 Stat. at 464.

DISCUSSION

The principal issue in this petition is the territorial scope of the term "the United States" in the Citizenship Clause of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1 ("All persons born or naturalized in the United States, and subject to Petitioner's argument is relatively novel, having been addressed previously only in the Ninth Circuit. See Rabang v. INS, 35 F.3d 1449, 1452 (9th Cir.1994) ("No court has addressed whether persons born in a United States territory are born 'in the United States,' within the meaning of the Fourteenth Amendment."), cert. denied sub nom. Sanidad v. INS, 515 U.S. 1130, 115 S.Ct. 2554, 132 L.Ed.2d 809 (1995). In a split decision, the Ninth Circuit held that "birth in the Philippines during the territorial period does not constitute birth 'in the United States' under the Citizenship Clause of the Fourteenth Amendment, and thus does not give rise to United States citizenship." Rabang, 35 F.3d at 1452. We agree. ⁷

the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (emphasis added)). Petitioner, who was born in the Philippines in 1934 during its status as a United States territory, argues she was "born ... in the United States" and is therefore a United States citizen. ⁶

Despite the novelty of petitioner's argument, the Supreme Court in the Insular Cases ⁸ provides...