Rabang v. Immigration & Naturalization Service

35 F.3d 1449

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 1994
• Docket: No. 91-16125
• Status: Published

Opinions

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 bom 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 § 301 of the Immigration and Nationality Act, 8 U.S.C. § 1401 (citizenship by descent). We have jurisdiction under 28 U.S.C. § 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. Ill, 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, swpra, art. IX, 30 Stat. at 1759.

The United States maintained military rale 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 rale over the Philippines. See ch. 1369, 32 Stat. 691 (1902). That enactment provided that certain inhabitants of the Philippine Islands as of April 11, 1899 and “their children bom subsequent thereto” were deemed “citizens of the Philippine Islands and as such entitled to the protection of the United States-” § 4, 32 Stat. at 692. It also provided that the Constitution and laws of the United States would not apply to the Philippines.² § 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.” § 2, 39 Stat. at 546.

Finally, thirty-five years after the United States acquired the Philippine Islands, Congress adopted the Philippine Independence Act. See Philippine Independence Act, eh. 84, 48 Stat. 456 (1934). That act provided for the adoption of “a constitution for the government of the Commonwealth of the Philippine Islands,” § 1, 48 Stat. at 456, and for the complete withdrawal of United States sovereignty ten years after the adoption of a Philippine constitution. § 10(a), 48 Stat. at 463 (codified at 22 U.S.C. § 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. § 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. See Proclamation No. 2695, 60 Stat. 1352, 11 Fed.Reg. 7517 (1946), reprinted in 22 U.S.C. § 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. See McGuckin 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. See Hernandez-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 Cooperative 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 bom 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 bom in a United States territory are bom “in the United States,” within the meaning of the Fourteenth Amendment.⁴ The courts have, however, uniformly rejected claims that people born in the Philippines during the territorial period retained their “national” status⁵ 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 Cases⁶ the 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). See U.S. Const, art I, § 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 5.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 bom 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 used in the Constitution, and includes all territories subject to the jurisdiction of the Federal government, wherever located.” Downes, 182 U.S. at 263, 21 S.Ct. at 777. In other words, as used in the Constitution, the term “United States” does not include all territories subject to the jurisdiction of the United States government. See also Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 588 n. 19, 96 S.Ct. 2264, 2274 n. 19, 49 L.Ed.2d 65 (1976), citing H.R.Rep. No. 249, 56th Cong., 1st Sess., 16 (1900) (“upon reason and authority the term ‘United States’ as used in the Constitution, has reference only to the States that constitute the Federal Union and does not include the Territories.”)

It is thus incorrect to extend citizenship to persons living in United States territories simply because the territories are “subject to the jurisdiction” or “within the dominion” of the United States, because those persons are not born “in the United States” within the meaning of the Fourteenth Amendment.⁸

IV.

The dissent relies on dicta in two Supreme Court cases to conclude that birth in a United States territory constitutes birth “in the United States” under the Fourteenth Amendment. In United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), the Supreme Court held that a person born in San Francisco, California, of Chinese parents, could not be excluded from the United States under the Chinese Exclusion Acts after a temporary visit to China. The Supreme Court held that the Citizenship Clause confers citizenship “by birth within the territory.” Id. at 693, 18 S.Ct. at 473. In Inglis v. Sailors’ Snug Harbour, 28 U.S. 99, 155, 3 Pet. 99, 155, 7 L.Ed. 617 (1830), Mr. Justice Story in his concurring and dissenting opinion to the majority opinion explained that citizenship by birth arises by “birth locally within the dominions of the sovereign; and ... birth within the protection and obedience ... of the sovereign.”

Focusing upon the phrases “within the territory” and “within the dominions,” the dissent concludes that persons born in territories of the United States are born “in the United States.” As previously discussed, the Supreme Court has already interpreted the territorial scope of the phrase “the United States” as used in the Constitution as limited to the states of the Union. Moreover, the dissent elevates the significance of this dicta in these cases.

There is no indication that the Court in Wong Kim Ark and Inglis would have used such broad language had it been faced with the facts of the case before us. Wong Kim Ark involved a person born in San Francisco, California. The fact that he had been born “within the territory” of the United States was undisputed, and made it unnecessary to define “territory” rigorously or decide whether “territory” in its broader sense (i.e. outlying land subject to the jurisdiction of this country) meant “in the United States” under the Citizenship Clause. The outcome in In-glis also did not depend on the meaning of “in the United States.” Decided prior to the enactment of the Fourteenth Amendment, that case addressed whether a person born in the colonies prior to the Declaration of Independence, whose parents remained loyal to England and left the colonies after independence, was a citizen and thus capable of inheriting land in the United States. It was simply unnecessary to address the territorial scope of citizenship under common law.

A focus on these select phrases is also misleading in view of the ambiguous ways in which the Court at other places defines the territorial scope of citizenship. See Wong Kim Ark, 169 U.S. at 658, 18 S.Ct. at 460 (under the English common law rule, “every child born in England of alien parents was a natural-born subject”) (emphasis added)⁹; id. at 661,18 S.Ct. at 461-62 (“[pjersons who are born in a country are generally deemed citizens and subjects of that country”) (emphasis added; citation omitted); id. at 665, 18 S.Ct. at 463 (“[t]he right of citizenship ... is incident to birth in the country") (emphasis added; citation omitted). But see, id. at 666, 18 S.Ct. at 463 (“mere birth within the realm gives the rights of a native-born citizen”) (emphasis added; citation omitted); id. at 667, 18 S.Ct. at 463-64 (discussing the “ancient rule of citizenship by birth within the dominion”) (emphasis added); id. at 674, 18 S.Ct. at 466-67 (“the fundamental rule of citizenship by birth within its sovereignty") (emphasis added); id. at 675, 688, 18 S.Ct. at 467, 471-72 (reaffirmation by the Fourteenth Amendment of citizenship by birth “within the dominion”) (emphasis added).

A selective focus on language supporting a broad interpretation of the Citizenship Clause is an unjustified reliance on dicta. The Court in Wong Kim Ark cautioned against the use of dicta in determining the meaning of “subject to its jurisdiction” in the Fourteenth Amendment: “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” 169 U.S. at 679, 18 S.Ct. at 468. Neither Wong Kim Ark nor Inglis decided the meaning of “in the United States” in the Fourteenth Amendment.

CONCLUSION

The Philippine Islands are now a sovereign nation. Supreme Court precedent compels a conclusion that persons born in the Philippines during the territorial period were not “born ... in the United States,” within the meaning of the Citizenship Clause of the Fourteenth Amendment, and are thus not entitled to citizenship by birth.

AFFIRMED.

1 . By the same treaty, Spain also ceded to the United States the islands of Puerto Rico and Guam, and relinquished its sovereignty over Cuba. See Treaty of Paris, supra, arts. I, II, 30 Stat. at 1755.

The inhabitants of Puerto Rico and Guam have been granted United States citizenship by statute. See Organic Act of Puerto Rico, ch. 145, § 5, 39 Stat. 951, 953 (1917) (conferring United States citizenship on some Puerto Rican citizens); Nationality Act of 1940, ch. 876, § 202, 54 Stat. 1137, 1139 (1940) (conferring citizenship on all those born in Puerto Rico after 1899); Organic Act of Guam, ch. 512, § 4(a), 64 Stat. 384, 384 (1950) (conferring United States citizenship on Guamanians). The United States never exercised sovereignty over Cuba, declaring instead that control over Cuba should be left "to its people.” See H.RJ.Res. 24, § 4, 55th Cong., 2d Sess., 30 Stat. 738 (1898).

2 . The Philippine Government Act declared that "[t]he provisions of section [1891] of the Revised Statutes of [1878] shall not apply to the Philippine Islands.” § 1, 32 Stat. at 692. Section 1891 of the Revised Statutes of 1878, in turn, provided that:

The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States.

Rev.Stat. of 1878, ch. 1, § 1891, 18 Stat. 325, 333 (1874).

3 . With respect to those who assert that their parents were born in the Philippines during the territorial period, the complaints also allege that these plaintiffs meet the applicable statutory requirements for acquisition of United States citizenship by descent. See 8 U.S.C. § 1401 (Supp. 1993). Because the district court's dismissal was based solely on the conclusion that birth in the territorial Philippines does not confer United States citizenship, this appeal does not concern any other issues related to citizenship by descent. See § 1401(c)-(g) (Supp.1993) (listing the various conditions for citizenship by descent).

4 . This claim has been raised, but not addressed by the courts. See, e.g., Resurreccion-Talavera v. Barber, 231 F.2d 524, 525 (9th Cir.1956); Gancy v. United States, 149 F.2d 788, 789 (8th Cir.), cert. denied, 326 U.S. 767, 66 S.Ct. 166, 90 L.Ed. 463 (1945).

5 . The term "national” came into popular use in this country when the United States acquired territories outside its continental limits, and was used in reference to noncitizen inhabitants of those territories. 4 Charles Gordon and Stanley Mailman, Immigration Law and Procedure, § 91.-01[3][b], at 91-5 (1993). Nonetheless, Congress did not define that term until 1940. See Nationality Act of 1940, supra note 1, §§ 101(a), 204, 54 Stat. at 1137, 1139; 4 C. Gordon and S. Mailman, supra, § 91.01[3][b], at 91-5. The current definition of the term "national” was adopted in the Immigration and Nationality Act of 1952, ch. 477, § 101(a)(22), 66 Stat. 163, 169 (1952), and is codified at 8 U.S.C. § 1101(a)(22) (1990) (a "national” is a citizen of the United States and a person who, though not a citizen, owes permanent allegiance to the United States).

6 . De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041 (1901); Dooley v. United States, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Armstrong v. United States, 182 U.S. 243, 21 S.Ct. 827, 45 L.Ed. 1086 (1901); and Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). The holdings of the Insular Cases were recently reaffirmed by the Supreme Court and remain valid law. See United States v. Verdugo-Urquidez, 494 U.S. 259, 268-69, 110 S.Ct. 1056, 1062-63, 108 L.Ed.2d 222 (1990).

7 . Regarding application of other constitutional provisions to Puerto Rico and the Philippines, see also, Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); and Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903).

8 . We note that the territorial scope of the phrase "the United States” is a distinct inquiry from whether a constitutional provision should extend to a territory, see Downes, 182 U.S. at 249, 21 S.Ct. at 772, and we rely on the Insular Cases only to determine the meaning of the phrase "in the United States.” While we are mindful of plaintiffs' claims that the district court erroneously excluded expert evidence regarding the history of the acquisition of the Philippine Islands and the racist sentiments that motivated the United States' treatment of the Philippines and the Insular Cases, we affirm the district court's dismissal on an issue of law only.

Because we conclude that birth in the Philippines does not give rise to citizenship under the Fourteenth Amendment, we need not decide whether citizenship is a "fundamental right" which would extend of its own force to a territory under the "territorial incorporation" doctrine.

We hasten to add that if the plaintiffs were entitled to citizenship under the Fourteenth Amendment, this would not conflict with Congress’ constitutional power to regulate naturalization, as urged by the government. The power to confer citizenship through naturalization does not confer the power to take citizenship away. See Wong Kim Ark, 169 U.S. at 703, 18 S.Ct. at 477-78 (Congress has no authority to restrict the effect of citizenship by birth); Afroyim v. Rusk, 387 U.S. 253, 257, 87 S.Ct. 1660, 1662-63, 18 L.Ed.2d 757 (1967) (same).

9 . Wholesale importation of British common law on “subject" status to interpret the meaning of the Citizenship Clause is inadvisable because of possible differences between “subjects" and "citizens." The Supreme Court has given inconsistent pronouncements on whether the concept of "subject” and "citizen” are the same. See Wong Kim Ark, 169 U.S. at 656, 18 S.Ct. at 459-60 ("subject” or "political status" may be quite different from "citizenship” or “civil status”); Chisholm v. Georgia, 2 U.S. 419, 455, 2 Dall. 419, 455, 1 L.Ed. 440 (1793) ("Under [the] constitution, there are citizens, but no subjects."). But see Wong Kim Ark, 169 U.S. at 664, 18 S.Ct. at 462-63 (“The term 'citizen' ... is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government.”), and id. at 665, 18 S.Ct. at 463 ("Subject and citizen are, in a degree, convertible terms as applied to natives.”) (emphasis added; citation omitted).