2001/8/06 MON　Jeffrey Geer
Taiwan Nationality

This is very rough but it outlines the legal issue of determining Taiwan
nationality under the San Francisco Peace Treaty.
It will shock you in many respects but the truth can set you free.

Inalienable "Human Rights" of Taiwan Nationals under US law
http://www.taipeitimes.com/news/2001/02/28/story/0000075546


Gives Us Liberty or Give Us American Passports?

By Jeffrey Geer

Are you an American by constitutional birthright?

If you are originally from Taiwan, the question of your birthplace plays a
major role in the legal determination of your nationality.  Acquisition of
nationality by birth is legally based upon the Latin phrase of "jus soli"
and this legal principle of determining nationality by birthplace has a very
longstanding tradition for being the foundation of such legal
intrepretations according to British common law.  Especially for "Chinese
aliens".

Taiwanese nationals are often deeply disturbed by the semantics of "One
China" in the English language and its byproduct definitions of "Chinese".
As English is the common language of international diplomacy, the officials
of different foreign ministries of numerous countries have officially deemed
a Taiwan national to be a "Chinese national" by a default of international
law.  Ever since the Japanese surrender of Formosa and the Pescadores in
1951, all those children of a Taiwan birthplace prior to and after the
signing of the San Francisco Peace Treaty have officially ceased  being
considered Japanese nationals under international law relating to Taiwan.

The legal implications of diplomatic fiction have caused foreign immigration
officials to continously  misintrepreted their foreign nationality laws
relating to aliens particularly those of "Chinese aliens" arriving at the
border.  Upon being stopped at a border inspection post, but being still
within the territory of that government,  the immigration inspector often
officially associates the Chinese ethnicity of Taiwanese nationals, with the
defaulting "China nationality" of their Taiwan residency.   This is
particularly true of the dejure legal practices of the Japanese immigration
officials and their official application of Japanese nationality laws
providing for the treatment of Taiwan nationals as "Chinese aliens" residing
in Japan.

In reality that is much like saying a North Korean is really a South
Korean, but then just how many common Japanese could really care about such
a legal distinction of aliens? For them, both "Koreans" are just still to be
considered as foriegn aliens coming into the jurisdiction of the immigration
officials concerned.

Since the Opium War with China in 1841, the Anglo practices of "Chinese
exclusion" have been applied at every political opportunity made available
to them starting with the treaty annexation of Hong Kong in perpetuity.  The
Anglo legal practices of annexing territory has often involved long-held
paranoid fears by their government officials of a looming invasion by
Chinese aliens and has often entailed special provisions within the British
Nationality Laws for pre-empting any such Chinese invasion of the British
Isles.  Such British immigration laws providing for the legal exclusion of
Hong Kong Chinese, however, still occurred within the legal sphere of
British common laws of "jus soli".

In America, their Chinese Exclusion Act created a serious immigration legal
precedent which singled out the ethnicity of a particular group for
descriminatory exclusion, and thus barring them from exercising all their
basic constitutional rights within the US immigration and nationality laws.
Historically those Chinese aliens fleeing the "One China" have long
struggled against this social issue of American nationality laws, but
through out modern history, they have repeatedly struck back against the
perennial exclusionary practices of the Anglo-American majority.  In USA v.
Wong Kim Ark (169 U.S. 649 (1898)), this issue of descrimination was ruled
on by the Supreme Court including the constitutionality of unlawful
"exclusion of Chinese" from the USA.   The Court found that the illegal
exclusion of nationals by immigration officials that they have deemed as
"Chinese aliens" coming within their jurisdiction to be quite
unconstitutional within the scope of the 14 Amendment and a violation of
their inalienable rights of "citizenship by a birthplace" coming within the
dominion of the US Constitution.

On the perculiar notable exceptions of 'natural born subjects" potentially
occuring under soveriegn dominion and allegiance, the court cited British
common law intrepretations on nationality before ruling on the 14th
Amendment:

'Nt hing is better settled at the common law than the doctrine that the
children, even of aliens, born in a country, while the parents are resident
there under the protection of the government, and owing a temporary
allegiance thereto, are subjects by birth.' Id. 164.

For Taiwan nationals losing Japanese nationality under the San Francisco
Peace Treaty,  they have been excluded as "Chinese aliens" of the One China
policy from  enjoying any true exercise of their basic constitutional rights
as a ceded territory coming under those very indisputable US military
protections of the Taiwan Relations Act.  Taiwansese nationals are presently
barred from rendering a final determination of their political status and
thus eligibility for American nationality under the SFPT because of the
Anglo-American practices of "Chinese Exclusion" are still presently
occurring under the US Constitution.  While exercise of power over "Chinese
aliens" maybe a political question much like the Taiwan question,  the
constitutional scope of judicial review is guaranteed under the 'equal
protections" for Chinese aliens coming within the 14th Amendment. (Yick Wo
v. Hopkins, 118 U.S. 356 (1886)).

Under Neely v. Hankel (180 U.S. 109 (1901)) and Downes v. Bidwell (182 U.S.
244 (1901))  the inhabitants of a ceded territory,  stemming from a 1898
peace treaty,  are not to be deprived of these basic constitutional rights,
even if regarded as aliens, under the 5th Amendment rights of "due process"
and within the14th Amendment of equal protections as 'subjects' or US
nationals under the dominion of the US Constitution.

The continuation of the 'statusquo' under SFPT cannot continue as a matter
of immigration law because the US Immigration and Nationality Act states
that losses of nationality shall not occur in contravention of treaties:

[8 U.S.C. 1489] Nothing in this title shall be applied in contravention of
the provisions of any treaty or convention to which the United States is a
party and which has been ratified by the Senate before December 25, 1952


The SFPT was ratified on April 28, 1952.

The continuation of the political statusquo under SFPT cannot continue
indefinitely as there is an impending matter of huge losses of US
"natural-born nationality" occurring under the American nationality laws
and the related immigration law contraventions under the Taiwan Relations
Act.  If there is indeed an unconstitutional loss of American nationality
occurring under the SFPT  because of a continuation of a descriminatory
exclusion policy called "One China", it would be very nice to know for all
concerned.  Removing this ambiguity of the "One China" of the Taiwan
question would be major achievement, and then there would be a dejure
starting point for Taiwanese self-determination as a matter of "deprivation
of liberty" under the 5th Amendment.

It is time to acknowledge the constitutional situation of "Chinese aliens"
being indefinitely detained on Taiwan without "due process", because there
is the creation of unconstitutional circumstances of a  "penal colony" being
constructed under the SFPT and the US Constitution. This obviously cannot
continue forever without some form of judicial remedy occurring on the
behalf of the inhabitants of Taiwan despite the political issues of Taiwan's
status.

For those few, brave Taiwan supporters seeking a dejure political status as

a starting point under international law, their constitutional battlecry is
"Give us Liberty or Give Us American Passports!".

Official policy of the US State Dept visas for Taiwanese nationals entry 
into "green card zone" of INA and the legal validity of Taiwan Passport 
under INA 101 a (30)
http://travel.state.gov/reciprocity/Country%20Folder/T/Taiwan.htm


INA 101 a (30) US legal definition of passport
http://www.ins.usdoj.gov/cgi-bin/folioisa.dll/lawbooks.nfo/query=[jump!3A!27act101!27]/doc/{@563}/hits_only?

Quote:

(30) The term "passport" means any travel document issued by competent 
authority showing the bearer's origin, identity, and nationality if any, 
which is valid for the admission of the bearer into a foreign country.

INA Definition of "outlying possession" for INA 'green card' zone admission 
and nationality definition of "non-citizen" US nationality:

(29) The term "outlying possessions of the United States" means American 
Samoa and Swains Island.


TRA's "foreign state" requires a legal immigration treatment of Taiwan in 
accordance with first sentence of:

INA 202

(b) Rules for Chargeability. - Each independent country, self-governing 
dominion, mandated territory, and territory under the international 
trusteeship system of the United Nations, other than the United States and 
its outlying possessions, shall be treated as a separate foreign state for 
the purposes of a numerical level established under subsection (a)(2) when 
approved by the Secretary of State. All other inhabited lands shall be 
attributed to a foreign state specified by the Secretary of State. For the 
purposes of this Act the foreign state to which an immigrant is chargeable 
shall be determined by birth within such foreign state except 
that-...(exceptions to jus soli principle like US consular determinations of 
nationality).

Explanation:

TRA states that Taiwan shall be treated categorically as a "foreign state" 
equivalent, but not as a formally independent country. The noted above legal 
reference cites the exact clause of INA which is for all areas outside the 
"green card zone" of the USA.  Under INA, the legal immigration definition 
of "USA" is very elastic and this issue itself must never be confused. This 
is not a trick of legal semantics nor a  loophole. Other sections of INA are 
very clear about defining "entry-exit" requirements of the "United States" 
especially when including its possessions and insular areas.

Under SFPT, the cession of Formosa left the "Japanese nationals" of Taiwan 
under the superior administrative authority of the USA in Article 4. The TRA 
officially downgraded the ROC on Taiwan to the dejure status of "governing 
authorities" or as the "administering authorities" under SFPT.

Under SFPT, the bilateral ROC-Japan peace treaty was terminated in 1978 by 
Japan and SPFT's Article 26 supersedes the new PRC-Japan "Treaty of 
Friendship & Peace". Taiwan nationals are officially mislabeled by the US 
State Dept as "Chinese nationals" under the One China policy of the 1972 
Shanghai Communique.

see Taiwan Document website: http://www.taiwandocument.org

The bilateral Treaty of Taipei (ROC-Japan) was the only existing peace 
treaty basis of "Chinese nationality" for Formosa under the SFPT. Now, 
however, the "One China" policy acts as the only legal authority for such 
"Chinese nationality" status under SFPT. It is a new "Chinese Exclusion Act" 
unconstitutionally operating under the color of law and blantantly 
descriminates against the 'ethnicity of Chinese' on Taiwan. The INA's 
"foreign state" category under "rules for chargeability" of the US immigrant 
visa quota system for the 'green card zone' clearly mandates that "jus soli" 
or 'nationality by birthplace' be applied to Taiwan under TRA. The 
continuing Japanese system on Taiwan for officially determining the 
"nationality by parent lineage" (eg. jus sangueine) does not apply for the 
legal purposes of TRA/INA.

This is US law as applied to Taiwan under SFPT.

The INA definition of "passport" requires "nationality, if any" to be 
applied to "Taiwan Passports". The State Dept does not except validity of 
Taiwan Passports prior to 2000, if it does not have a "Taiwan zone" 
re-admission stamp. In 1979, TRA created two separate INA immigration zones 
for Taiwanese. As domestic law under SFPT, does TRA place Taiwan into an 
insular relationship under the dominion of the US Constitution as a "foreign 
state equivalent"?

Regards,

Jeff Geer

For American Samoa or Mariana Islands, these "outlying areas" are legally 
outside the INA's green card zone. But they are still under the INA 
nationality clauses especially as US Nationals-Noncitizens. This unique 
nationality status gives them automatic right of entry into the bigger Green 
Card Zone unlike the Taiwan nationals under TRA.  These two areas are 
legally classified as "dependent areas" under INA, but their exemption for 
green card zone visa purposes comes as "American outlying possessions".  
Don't be potentially confused by this because under this "INA label",  there 
still many other US possessions beyond the INA zone.  For more information, 
please see the government official website of the Office of Insular Affairs.

Office of Insular Affairs: Islands still under US Dominion
http://www.doi.gov/oia/facts2000.html