Cabebe v. Acheson

• Decision Date: 03 August 1950
• Docket Number: No. 12333.,12333.
• Citation: 183 F.2d 795
• Parties: CABEBE v. ACHESON, Secretary of State.
• Court: U.S. Court of Appeals — Ninth Circuit

183 F.2d 795 (1950)

CABEBE v. ACHESON, Secretary of State.

No. 12333.

United States Court of Appeals Ninth Circuit.

June 23, 1950.

Rehearing Denied August 3, 1950.

N. W. Y. Char, Yasutaka Fukushima and Sau Ung Loo Chan, all of Honolulu, T. H., for appellant.

Ray J. O'Brien, U. S. Atty., Howard K. Hoddick, Asst. U. S. Atty., Honolulu, T. H., Frank J. Hennessy, U. S. Atty., and Macklin Fleming, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

Arcadio Cabebe was born in the Philippine Islands in 1910, lawfully entered the Territory of Hawaii in 1930 where he has resided ever since, and in 1949 petitioned the United States District Court for such Territory to have his status declared to be that of a national of the United States entitled to certain rights and privileges which he alleged had been wrongfully denied him. Section 503¹ of the Nationality Act of 1940 authorizes such suit. The district court ruled that Cabebe is an alien of the United States and thereupon denied the relief prayed for. 84 F.Supp. 639. Cabebe appeals.

In 1949 appellant applied for the issuance of a United States passport permitting his entry into Guam.² The application was denied on the single ground that by virtue of and since the July 4, 1946, Presidential proclamation of Philippine independence³ in pursuance of the Philippine Independence Act of 1934⁴ as amended appellant became and is an alien of the United States and hence is not entitled to a United States passport.⁵ See 22 U.S.C.A. § 212, which provides: "No passport shall be granted or issued to or verified for any other persons than those owing allegiance, whether citizens or not, to the United States."⁶

Appellant here does not claim American citizenship, and no one owes American allegiance save either a citizen or a national. The statute covering passports is limited to persons owing allegiance to the United States. The privilege, therefore, of a passport to Guam depends upon whether this applicant is a United States national. We shall hereinafter see that Cabebe was a United States national immediately prior to Philippine independence and that immediately thereafter, the fact upon which such status (inclusive of allegiance) was based having ceased to exist, the inclusive status ceased to exist with it.

Appellant contends that his United States nationality was not affected by the proclamation of Philippine independence and hence that he is entitled to the passport denied to him.

"Nationality" is a term denoting a relationship between an individual and a nation "involving the duty of obedience or "allegiance" on the part of the subject and protection on the part of the state."⁷ And, it is domestic rather than international law which in most circumstances determines acquisition or loss of nationality.⁸ United States nationality depends primarily upon the place of birth, the common law principle of jus soli having been embodied in the Fourteenth Amendment of the Constitution of the United States. Nationality may also be acquired by naturalization and lost by expatriation.

With the cession of populated areas by the Crown of Spain to the United States, however, persons collectively became nationalized but not naturalized, Spanish subjects residing in ceded territory becoming nationals of the United States unless it was otherwise provided by treaty.⁹ Accordingly, it was realized that while all citizens of the United States were nationals, not all nationals were citizens. A hybrid status appeared, the so-called "non-citizen national".

The Nationality Act of 1940 defines the phrase "national of the United States" as meaning "(1) a citizen of the United States, or (2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. It does not include an alien." 8 U.S.C.A. § 501(b).¹⁰

The archipelago known as the Philippine Islands was ceded to the United States by Spain effective April 11, 1899.¹¹ Treaty provisions gave the then Spanish subjects who were "natives of the Peninsula" (i. e., born in Spain) residing in the ceded territory the option of retaining Spanish nationality either by removing therefrom or by remaining therein and making a prescribed declaration of desire to preserve such allegiance before a court of record within a certain time. It was further declared in the same Treaty that 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" of the United States. These treaty provisions have been interpreted as effecting a transition nolens volens of Spanish subjects inhabiting the Islands at the effective date of such treaty into United States nationals except for "natives of the Peninsula" who acted upon the option to preserve their Spanish nationality. See Fourteen Diamond Rings v. United States, 1901, 183 U.S. 176, 179, 22 S.Ct. 59, 46 L.Ed. 138.

By the Act of July 1, 1902,¹² "all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on" April 11, 1899, "and then resided in said Islands, and their children born subsequent thereto" were deemed and held to be "citizens of the Philippine Islands and as such entitled to the protection of the United States" except such as pursuant to the Treaty of Paris were authorized and had elected to preserve their allegiance to the Crown of Spain. To such provisions Congress in 1912 added a proviso authorizing the enactment of a naturalization law by the Philippine legislature to permit the acquisition of Philippine citizenship by certain enumerated classes of non-citizens.¹³ The 1902 provisions and the 1912 proviso were restated and continued in Section 2 of the Jones or Autonomy Act of August 29, 1916.¹⁴ The Philippine legislature enacted a naturalization law on March 26, 1920, which, conforming to the above mentioned proviso, provided in part as follows: "Who may become Philippine citizens. — Philippine citizenship may be acquired by: (a) natives of the Philippines who are not citizens thereof under the Jones law act of August 29, 1916¹⁵; (b) natives of the other insular possessions of the United States; (c) citizens of the United States, or foreigners who under the laws of the United States may become citizens of said country if residing therein."¹⁶

The preamble to the Jones Act, supra, the organic act with respect to Philippine independence, declared the following: "It is, as it has always been, the purpose of the people of the United States to withdraw their sovereignty over the Philippine Islands and to recognize their independence as soon as a stable government can be established therein; * * *." In pursuance of this policy Congress passed the Philippine Independence Act, Tydings-McDuffie Act, of 1934,¹⁷ which stated the procedure by which the complete independence of the Philippine Islands was to be accomplished. In short, it authorized a constitutional convention to draft a constitution for the government of the newly named Commonwealth of the Philippine Islands, specified certain required provisions, and provided that after the President of the United States certified its conformance thereto the proposed constitution be submitted for ratification to Philippine voters. It was further declared that on July 4th next following the expiration of a period of 10 years from the date of inauguration of the new government under such constitution, the President of the United States would proclaim the complete independence of the Philippine Islands and the people thereof. By its terms the Act was not effective until accepted by concurrent resolution of the Philippine legislature or by a convention called for the purpose of passing upon such question. As of the date of such acceptance (which occurred in fact on May 1, 1934), it was provided in Section 8(a) (1) of the Act¹⁸ that "for the purposes of the Immigration Act of 1917, the Immigration Act of 1924 with an exception not pertinent here * * *, this section, and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens." Compare Del Guercio v. Gabot, 9 Cir., 1947, 161 F.2d 559.

On July 4, 1946, as above stated, after all of the conditions precedent to independence stated in the Independence Act of 1934 had been met and the people of the Philippines had "clearly demonstrated their capacity for self-government," the President of the United States proclaimed that 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 that he for the United States thereby recognized "the independence of the Philippines as a separate and self-governing nation" and acknowledged "the authority and control over the same of the government instituted by the people thereof, under the constitution now in force." 60 Stat. 1352, 1353. A treaty to such effect was entered upon with the Republic of the Philippines.¹⁹

The constitution drafted, certified, and ratified in conformity with the Independence Act of 1934, under which the government of the Commonwealth of the Philippines operated, thus continued in force for the independent Republic of the Philippines. It provides that the following persons are "citizens of the Philippines: (1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution. (2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands. (3) Those whose fathers are citizens of the Philippines. (4) Those whose...