Refuting Yasay: No oath of allegiance for green card holders or NY Bar passers

 It has been floated around recently that one takes an oath of allegiance to the United States when one becomes a US lawful permanent resident (LPR), or when one obtains a green card. Same thing when one passes the New York bar.

There’s no legal or regulatory basis for any of these assertions.

The US oath of allegiance is a verbal statement, publicly recited during naturalization ceremonies. It is the means by which ex-aliens-now-citizens agree, among others, to abide by the laws and constitution of the United States and renounce their former allegiances to other countries. It is the important – and final – step necessary to become a naturalized citizen of the US.

Naturalization ceremonies are administered by either the courts or by the US Citizenship and Immigration Services (USCIS).

The text of the naturalization oath of allegiance reads: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

The principle of renunciation of prior allegiances in the oath of allegiance is enshrined in Section 337(a) in the US Immigration and Nationality Act (INA). It provides that all applicants shall take an oath that incorporates supporting the US constitution and renouncing and abjuring “absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen.”

Lawful permanent resident or green card holder

During the Commission on Appointments hearing last February 22, 2017, when Foreign Secretary Perfecto Yasay Jr categorically stated under oath that he did take a US oath of allegiance, but that he was never a US citizen, many got confused and questioned the accuracy of what he said.

What was the purpose of taking the oath of allegiance to the US if not to swear in as a naturalized US citizen?

When Occidental Mindoro Representative Josephine Ramirez-Sato inquired during the hearing about his oath of allegiance to the US, pointing out that this automatically meant he was once a US citizen, Yasay said he was only a legal permanent resident. He further stated, “Taking an oath of allegiance was a requirement for me, for my legal permanent residence. It does not imply citizenship.”

To be clear, taking an oath of allegiance to the United States is NOT a requirement to obtain LPR/green card status. But it is a requirement to become a naturalized citizen of the US.

A green card is an immigration status in the US that entitles the holder to certain rights and responsibilities. These include the right to live permanently in the US, work there and take on any legal work based on one’s occupation and choice (except for some jobs limited to US citizens), and to be protected by all laws of the US, the laws of the state of one’s residence, and any local jurisdictions.

One can obtain LPR status or a green card in many different ways, the most common of which are sponsorship by a family member or an employer in the US. Once obtained, the LPR or green card holder may, years later, apply for and be granted US citizenship through a process called naturalization.

But for as long as a green card holder remains a green card holder, that person will never be required to take an oath of allegiance to the US since the person remains a citizen of another country or jurisdiction, not the United States.

That is why it is just puzzling, almost preposterous, to assert under oath in a Commission on Appointments hearing that the oath of allegiance (to the United States) was a requirement for US legal permanent residence. There is simply no basis for this assertion in US immigration law, regulation, practice or custom.

Responsibilities 

So why then is the oath of allegiance not required to acquire or maintain one’s green card? The answer is simple. Because the responsibilities of green card holders and naturalized US citizens are not the same.

Green card holders are required to obey all US laws, pay federal/state/local taxes, support democracy and not change the government through illegal means, and register with the Selective Service (if male applicant between 18-25 years old).

If you look at the wordings of the oath of allegiance, the requirements for naturalized US citizens are more stringent and expansive. Of course they need to pay taxes, support US democracy and register for Selective Service, if applicable. But naturalized US citizens need to renounce allegiances to other countries – something not required or expected of green card holders. Naturalized US citizens are also expected to bear arms on behalf of the United States and perform noncombatant roles, if necessary.

This is why the accuracy of Yasay’s previous statements is now in question. He admits to taking an oath of allegiance to the US, but denies having become a US citizen. He asserts that the oath of allegiance is a requirement for his green card. He also denies he once held a US passport.

“To my knowledge, as far as I know, I never held any American passport.” But clearly, only US citizens can apply for and receive US passports because that is one of the benefits that naturalization offers and which flows from the taking of the oath of allegiance.

Appointed officials can’t be foreigners 

The Philippine Citizenship Retention and Re-acquisition Act of 2003 or Republic Act 9225 states that appointed public officials cannot be a citizen of another country. Section 5 of R.A. 9225 says: “Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, that they renounce their oath of allegiance to the country where they took that oath.”

It’s been reported that Yasay has since renounced his US citizenship. This suggests that he can now be appointed as Cabinet secretary, provided he subscribes and takes an oath of allegiance to the Philippines before assuming office, since he had already renounced his US citizenship.

A previous Rappler story also alleged he once had a US passport and that his name is in the US Internal Revenue Service’s (IRS’) “Quarterly Publication of Individuals Who Have Chosen to Expatriate, as Required by Section 6039G”. This most likely suggests a prior surrender of US citizenship.

A recent article from the Inquirer that unearthed copies of documents from the US embassy in Manila seems to confirm that Yasay did become a naturalized US citizen sometime in November 1986, but that he had formally renounced such US citizenship last June 28, 2016.

Swearing in ceremonies of NY bar 

Yasay also explained during the February 22, 2017 hearing that he took his second oath of allegiance to the US when he passed the New York bar. This again is absurd.

One of the authors of this article took, passed, and is a member of the New York bar. The other author took, passed and is a member of the California bar. Both authors did not take an oath of allegiance to the US before being admitted to practice in their respective jurisdictions. Instead, each took an attorney’s oath.

Lawyers who pass the New York bar (or the California bar, for that matter) do not take an oath of allegiance to the US. They merely participate in a swearing in ceremony, reciting the attorney’s oath or oath of office.

The New York attorney’s oath or oath of office and the California attorney’s oath or oath of office, are starkly different from the US oath of allegiance. The wordings for the attorney’s oath are much simpler and shorter. Here’s a sample of the New York oath found on YouTube.

The text of the oath is found in Sec. 1 of Article XIII of the New York State Constitution: “I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of attorney and counselor-at-law of the State of New York, according to the best of my ability.”

The text of the attorney’s oath for California is found in Business and Professions Code section 6068. It reads: “I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.”

Clearly, the attorney’s oath is not the same as an oath of allegiance.

The attorney’s oath does not require any renunciation of allegiance, only that the attorney taking the oath swears to support the US constitution and the laws of the State in which they practice, and discharge attorney’s duties to the best of their ability.

This is a mere attorney’s oath – there is nothing to renounce or declare allegiance to. Any learned official, especially a dual Philippine- and New York-licensed attorney, should not confuse an attorney’s oath for the more complex oath of allegiance to the US. There’s simply no excuse for that.

All up to CA 

The role of the Commission on Appointments is to assess presidential appointees based on their “integrity, competence, and fitness.” They are now faced with the enormous task of assessing Yasay’s “integrity, competence and fitness” to lead the Department of Foreign Affairs of the Republic of the Philippines.

But his prior statements – that he never was a US citizen and never held a US passport – can and will most probably be taken against him. These prior statements that were made under oath raise a string of ethical issues that affect his integrity and fitness to assume public office.

If he was once a naturalized US citizen and therefore once held a US passport, are his denials ethical? Is this a man of integrity? Is this a competent Cabinet secretary? Is he fit to lead the Department of Foreign Affairs and be the face of the Philippines overseas? These questions should be answered assiduously and honestly by the Commission on Appointments. It’s all up to them. – Rappler.com

Disclaimer: The ideas and content above are solely the opinions and perspectives of the co-authors. They are not representative in any way of the position, opinion, or outlook of their past or present employment affiliations. Nor should they be interpreted as any form of legal, immigration or tax advice.

Carlo Osi is a lawyer and writer based in Metro Washington DC. He studied at Georgetown Law, University of Pennsylvania Law School, Wharton School of Business, Kyushu Law, and UP Law. Elaine San Juan-Tica is an immigration lawyer based in Los Angeles, California. She has her own law practice, the Law Offices of Elaine O. San Juan (www.elainesanjuan.com). She studied at San Beda Law School and is a member of the American Immigration Lawyers Association (AILA).