Rabang v. I.N.S.

• Decision Date: 20 September 1994
• Docket Number: No. 91-16125,91-16125
• Citation: 35 F.3d 1449
• Parties: Rodolfo RABANG; Jose Tion Guillo; Leonora Ver Sanidad; Alfredo Maglinao; Josephine Ycaro; Michael Ycaro; John Ycaro, Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1449

35 F.3d 1449

Rodolfo RABANG; Jose Tion Guillo; Leonora Ver SanidadAlfredo Maglinao; Josephine Ycaro; Michael Ycaro; John Ycaro, Plaintiffs-Appellants, v.IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.

No. 91-16125.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 8, 1992.

Decided Sept. 20, 1994.

Ronald T. Oldenberg, Honolulu, HI, for plaintiffs-appellants.

Lisa Dornell, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: TANG, PREGERSON, and ALARCON, Circuit Judges.

Opinion by Judge TANG; Dissent by Judge PREGERSON.

TANG, Senior Circuit Judge:

Rodolfo Rabang and six other individuals appeal from the district court's dismissal of their complaints for failure to state a claim for relief.The complaints allege that plaintiffs or their parents were born in the Philippine Islands when those islands were United States territory, and seek declaratory judgments that plaintiffs are United States citizens under the Citizenship Clause of the Fourteenth Amendment, or under the Citizenship Clause in conjunction with Sec. 301 of the Immigration and Nationality Act,8 U.S.C. Sec. 1401(citizenship by descent).We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

BACKGROUND

At the close of the Spanish-American War on December 10, 1898, Spain ceded the Philippine Islands to the United States by treaty.See Treaty of Peace between the United States of America and the Kingdom of Spain, Dec. 10, 1898, U.S.-Spain, art. III,30 Stat. 1754, 1755(hereafter "Treaty of Paris").¹ That treaty provided that "[t]he civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress."Treaty of Paris, supra, art. IX,30 Stat.at 1759.

The United States maintained military rule over the Philippine Islands until 1902. 2 R. Hofstadter, W. Miller & D. Aaron, The American Republic 340 (1959).Congress then enacted the Philippine Government Act, which established the terms of United States' civilian rule over the Philippines.Seech. 1369,32 Stat. 691(1902).That enactment provided that certain inhabitants of the Philippine Islands as of April 11, 1899 and "their children born subsequent thereto" were deemed "citizens of the Philippine Islands and as such entitled to the protection of the United States...."Sec. 4,32 Stat.at 692.It also provided that the Constitution and laws of the United States would not apply to the Philippines.²Sec. 1,32 Stat.at 692.

In 1916, Congress adopted the Philippine Autonomy 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."Philippine Autonomy Act, ch. 416,39 Stat. 545(1916).That act reiterated that "all inhabitants of the Philippine Islands who were Spanish subjects on [April 11, 1899] ... and their children born subsequent thereto, shall be deemed ... citizens of the Philippine Islands."Sec. 2,39 Stat.at 546.

Finally, thirty-five years after the United States acquired the Philippine Islands, Congress adopted the Philippine Independence Act.SeePhilippine Independence Act, ch. 84,48 Stat. 456(1934).That act provided for the adoption of "a constitution for the government of the Commonwealth of the Philippine Islands,"Sec. 1,48 Stat.at 456, and for the complete withdrawal of United States sovereignty ten years after the adoption of a Philippine constitution.Sec. 10(a),48 Stat.at 463(codified at 22 U.S.C. Sec. 1394(a)(1990)).The act also declared that citizens of the Philippine Islands who were not also citizens of the United States were to be considered "aliens" under the immigration laws of the United States.Sec. 8(a)(1),48 Stat.at 462.

On July 4, 1946, the United States relinquished control over the Philippine Islands and declared them to be an independent sovereign, thus ending their status as a United States territory.SeeProclamationNo. 2695, 60 Stat. 1352,11 Fed.Reg. 7517(1946), reprinted in22 U.S.C. Sec. 1394(1990).

DISCUSSION

I.

The government argued to the district court that the plaintiffs had failed to exhaust their administrative remedies.Although the government does not raise this issue on appeal, we must sua sponte consider whether there is subject matter jurisdiction over this appeal.SeeMcGuckin v. Smith, 974 F.2d 1050, 1052(9th Cir.1992).Because the Board of Immigration Appeals has no jurisdiction to adjudicate constitutional issues, the plaintiffs' failure to raise their challenge at the administrative level does not deprive this court of jurisdiction.SeeHernandez-Rivera v. INS, 630 F.2d 1352, 1355-56(9th Cir.1980).

II.

The district court consolidated these cases, and the government moved to dismiss them under Fed.R.Civ.P. 12(b)(6).The district court granted the government's motion to dismiss.

A dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is a ruling on a question of law and is reviewed de novo.Buckey v. County of Los Angeles, 968 F.2d 791, 793-94(9th Cir.), cert. denied, --- U.S. ----, ----, 113 S.Ct. 599, 600, 121 L.Ed.2d 536(1992).A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Id.The decision of the district court may be affirmed on any ground supported in the record.Oscar v. University Students Co-operative Ass'n, 965 F.2d 783, 785(9th Cir.)(en banc), cert. denied, --- U.S. ----, ----, 113 S.Ct. 655, 656, 121 L.Ed.2d 581(1992).

III.

All plaintiffs in this case are at some stage of deportation proceedings brought against them by the Immigration and Naturalization Service.Each complaint seeks declaratory judgment that the plaintiffs are entitled to citizenship under the Citizenship Clause of the Fourteenth Amendment.The plaintiffs allege that they or their parents were born in the Philippines during the territorial period, that during this time the Philippine Islands were "in the United States," and that plaintiffs were subject to the jurisdiction of the United States at their birth.They therefore claim that they(or their parents) were born "in the United States" and thus constitutionally entitled to citizenship.³ The Citizenship Clause of the Fourteenth Amendment provides that:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

U.S. Const. amend. XIV(emphasis added).

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.⁴The courts have, however, uniformly rejected claims that people born in the Philippines during the territorial period retained their "national" status ⁵ after Philippine independence.See, e.g., Rabang v. Boyd, 353 U.S. 427, 430-31, 77 S.Ct. 985, 987-88, 1 L.Ed.2d 956(1957)(rejecting claim that status as a United States "national" was so related to "citizenship" that U.S. relinquishment of the Philippine Islands could not divest petitioner of his U.S. nationality);Manguerra v. INS, 390 F.2d 358, 360(9th Cir.1968)(rejecting argument that United States nationality could not be taken away without consent);Cabebe v. Acheson, 183 F.2d 795, 800(9th Cir.1950)(rejecting claim that Congress did not have power to divest petitioner of nationality).

We now hold 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.

In the Insular Cases⁶the Supreme Court decided that the territorial scope of the phrase "the United States" as used in the Constitution is limited to the states of the Union.Those cases addressed challenges to the imposition of duties on goods shipped from Puerto Rico to the continental United States.The Court held that Puerto Rico was "not a part of the United States within the revenue clauses of the Constitution."Downes v. Bidwell, 182 U.S. 244, 287, 21 S.Ct. 770, 787, 45 L.Ed. 1088(1901).SeeU.S. Const. art I, Sec. 8("all duties, imposts, and excises shall be uniform throughout the United States")(emphasis added).⁷

In arriving at this conclusion, the Court compared the language of the revenue clause ("all duties ... shall be uniform throughout the United States") with that of the Thirteenth Amendment(prohibiting slavery "within the United States, or in any place subject to their jurisdiction") and the Fourteenth Amendment(extending citizenship to those born "in the United States, and subject to the jurisdiction thereof").Id. at 251, 21 S.Ct. at 773(emphasis added).The Court emphasized that the language of the Thirteenth Amendment demonstrates that "there may be places within the jurisdiction of the United States that are no part of the Union."Id.In comparison, the Fourteenth Amendment has "a limitation to persons born or naturalized in the United States which is not extended to persons born in any place 'subject to their jurisdiction.' "Id.(emphasis added).Like the revenue clauses, the Citizenship Clause has an express territorial limitation which prevents its extension to every place over which the government exercises its sovereignty.Cf.United States v. Verdugo-Urquidez, 494 U.S. 259, 291 n. 11, 110 S.Ct. 1056, 1074-75, 108 L.Ed.2d 222(1990)(Brennan, dissenting)(distinguishing Downes holding regarding the revenue clauses, because the Fourth Amendment"contains no express territorial limitations").

The Downes Court further stated: "[I]n dealing with foreign sovereignties, the term 'United States' has a broader meaning than when...