Skip to comments.The Current INS Officially Recognizes A Delineation Between Natural-Born and Native-Born.
Posted on 01/25/2012 9:12:53 AM PST by Danae
I was just made privy to a very important piece of research I had not previously been aware of. It comes by way of a comment forwarded to me by the author of the h2ooflife blog:
I had presumed that the idiom natural born citizen appeared nowhere in U.S. Law other than A2S1C5, but I found it in administrative law and it is contrasted with native and naturalized citizenship. Ive never seen any mention of this fact before and wonder how many are aware of it in the ineligibility camp. Heres the quotes:
He then quoted two provisions from the link provided, but theres actually three at the official INS .gov site which establish official recognition by the federal government that native-born and natural-born should be separately delineated. When you visit the suggested link to the Immigration and Naturalization service, it brings you to Interpretation 324.2 Reacquisition of citizenship lost by marriage.
Interpretation 324.2 (a)(3) provides:
The repatriation provisions of these two most recent enactments also apply to a native- and natural-born citizen woman who expatriated herself by marriage to an alien (Emphasis added.)
Then, Interpretation 324.2(a)(7) provides:
(7) Restoration of citizenship is prospective . Restoration to citizenship under any one of the three statutes is not regarded as having erased the period of alienage that immediately preceded it.
The words shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922″, as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (whichever existed prior to the loss) as of the date citizenship was reacquired. (Emphasis added.)
And again, Interpretation 324.2(b) provides:
The effect of naturalization under the above statutes was not to erase the previous period of alienage, but to restore the person to the status if naturalized, native, or natural-born citizen, as determined by her status prior to loss. (Emphasis added.)
Three times in this official INS Interpretation currently published by the Obama Administration native-born and natural-born are given separate consideration. And in the third example from Interpretation 324.2(b) the INS clearly states that each delineation, naturalized, native, or natural-born citizen, is a separate status.
The INS includes the following explanation of Interpretations:
Interpretations were created to supplement and clarify the provisions of the statute and regulations as interpreted by the courts. These materials usually are not included in the regulations because they deal generally with procedural matters and do not deal directly with application and benefit requirements. They are still a useful tool to help you understand how the DHS Bureaus performs their different immigration services and enforcement functions. Users of the Operation Instructions and Interpretations should always consult the relevant regulations and manuals in conjunction with these materials. As the DHS Bureaus have grown, the trend has been towards inclusion of more materials in the regulations and field manuals, and the Operations Instructions and Interpretations have been updated less frequently.
I am rather rocked by this find, having never seen it before, and it certainly comes to the attention of the nation at a critical moment, one day before the Georgia POTUS eligibility hearings. I do have a policy of only printing comments from attorneys, but I did say in the comment rules that I would be happy to read messages from anyone. Since this research is new to me, and directly relevant to a proper analysis of the natural-born citizen clause, I have made an exception in posting this comment.
However, I must stress that I do not agree with some things at the h2ooflife blog. While I havent had the time to examine everything there, I must point out the following, and zealously dispute it:
The First U.S. Congress included in the 1790 Immigration & Naturalization Act language to alert the State Department to the fact that Americans born abroad are (natural born citizens and are not to be viewed as foreigners due to foreign birth. They were not granted citizenship via that US statute, rather their automatic citizenship was stated as a fact that must be recognized by immigration authorities. They were not citizens by any other means than natural law, and statutory law was written to insure that their natural citizenship was recognized.
This is not a reasonable explanation. It fails to recognize that Congress only has powers over naturalization. Congress has no power to define natural born Citizen, which has nothing to do with naturalization. Furthermore, if Congress wants to tell the State Department something, they dont have to enact legislation to do it.
But more important is that all of the following naturalization acts, 1795, 1802, etc., were also passed to naturalize the children of U.S. citizens born abroad. And the words natural born were repealed in the 1795 Naturalization Act and never returned again.
In Rogers. v. Bellei, 401 U.S. 815 (1971), the U.S. Supreme Court confirmed that persons born abroad are not covered by the 14th Amendment, and therefore, their citizenship can be stripped from them by Congress, whereas Congress cannot strip citizenship from a 14th Amendment citizen, whether born or naturalized here:
Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was declaratory of existing rights, and affirmative of existing law, so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S., at 688 . Then follows a most significant sentence:
But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action
Further, it is conceded here both that Congress may withhold citizenship from persons like plaintiff Bellei and may prescribe a period of residence in the United States as a condition precedent without constitutional question.
Thus we have the presence of congressional power in this area, its exercise, and the Courts specific recognition of that power and of its having been properly withheld or properly used in particular situations. Rogers v. Bellei, 401 U.S. 815, 830-831. (Emphasis added.)
Naional law has always required persons born abroad to be naturalized, whether born of citizen parents or not. Furthermore, those born abroad to citizen parents are subject to conditions precedent which Congress may impose upon them in order for them to remain U.S. citizens, whereas Congress has no such power over natural-born citizens, native-born citizens, or citizens naturalized in the U.S.
Again, not only are children of citizens born abroad not natural-born, the Supreme Court has held that their citizenship is subject to being stripped by Congress, since the Constitution does not directly provide for their citizenship, as it does for those born or naturalized in the United States.
I do not appreciate the authors argument on this point. It is definitely wrong.
Regardless, the research provided as to the INS Interpretations is superb and greatly appreciated. Well done, sir.
Adding these official Interpretations of the INS, published at the official .gov site, to the Supreme Courts opinion from Minor v. Happersett, the true Constitutional definition of a natural-born citizen, as one born in the country to citizen parents, is further reinforced.
Like the Obama administrations prior scrubbing of the Foreign Affairs Manual, on August 21, 2009, the INS web site appears due for a cut and die at the salon.
Leo Donofrio, Esq.
Ping to the Usual Suspects!
Maybe you should print it out, march up to the White House and smack Obama in the face with it.
Then frog march him right on out of there.
Let me know how that works out for you.
The Plaintiffs v. Obama in the Georgia court could use this information tomorrow.
And, it explains why Obama’s “fightthesmears” website (now, “attackwatch”) NEVER claimed Obama was “natural born,” only “NATIVE born.”—Even Obama, himself, knows that he isn’t a natural born citizen.
Let me know how that works out for you.
Maybe you should act like a gentleman and respond to the article and not make uncalled for snide remarks. Do you disagree or agree with the article? Or do you just want to disrupt the thread?
Born under a bad sign,
if it wasn’t for snide remarks.
if it wasn’t for real snide remarks
he wouldn’t have no remarks at all...
“A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States precisely under the same circumstances under which a native might sue. He is distinguishable in nothing from a native citizen except so far as the Constitution makes the distinction. The law makes none.”
- MR. CHIEF JUSTICE MARSHALL
See Osborn v. Bank of the United States - 22 U.S. 738 (1824)
Congress does not have the Constitutional authority to legislate the definition or the recapturing of Natural-born citizenship status.
The last line of the quote, “The law makes none[,]” is a reference to the fact the Court does not recognize a difference between a native born and a naturalized citizen.
Natural-born citizenship status can only be defined by a Constitutional Amendment.
Over 3 years, trolls have conflated the two term ‘native born’ and ‘natural born’ even when the proof was staring at them in their collective faces. Well trolls, here is what the US government unequivocally says are the facts. Hint, it is not what you guys “think” and spout...that’s nonsense.
The woman ``X`` came back to USA with her Mexican mother and later, woman ``X`` married, when she was 19, an American-born U.S. citizen in the USA.
Every year, before and after her marriage, the woman ``X`` had to register as a RESIDENT ALIEN. She had the option always, to renounce her Mexican citizenship and become naturalized by INS then, but opted instead for the Mexican citizenship. Her children, both born in USA, are American citizens claimed through their birthplace and through the American father.
Here is what I want to know. I have Google alerts for certain things and natural born citizen is obviously one of them. I have had that alert for over 3 years. The blog that Leo mentions above is loaded with that phrase yet I have never seen it before! How many other great sites are being blocked by this very phrase?
I really thought you should see this thread by Leo
Distinction made by the INS on Natural, Native, Naturalized citizen.
I have already sent it to them.
The typical Obot is argument is “There are only two types of citizenship: natural-born and naturalized.” This new find is going to leave some massive welts. Ouch.
As I recall, an American women would lose their US citizenship prior to circa 1934, if they married a foreign man.
She could not have come a Kenya Citizen since Kenya - as a stand-alone nation did not exist in 1961. Kenya (which was a defined region) was part of British East Africa. In 1963 it became independent along with 2 other countries in the region. Thus terminating the geo-political entity of British East Africa.
Interesting point - The LFBC refers to ‘Kenya, East Africa’ for OBIs country. There never was such a thing as ‘Kenya, East Africa’. There was Republic of Kenya (after 1963) or prior to that and in the late 50s it was referred to as Kenya since it was defined as Great Britain laid out the path to independence. Many of OBI’s INS records refer to ‘Kenya’. But not ‘Kenya, East Africa’ or ‘Republic of Kenya’.
Here is a document with a very, very good write-up on the trail possible citizen for Obama II during that time.
See the end of the document for in-depth discussion on like citizenship path as Kenya become independent. Bottom line - Obama never ‘lost’ British Citizenship. He could - to this very day - claim British citizenship.
It sure looks that way.
This subject was argued here on FR way back in 2008. It was settled in an interesting way: a Freeper who collected stamps demonstrated that Kenya had its own stamps with the name Kenya on them long before BHO2 was born there. The transition to a seperate nation started long before the completed process in 1963.
Wow. Well there you go.
I agree from reviewing the Obama senior INS records. ‘Kenya’ as a political entity, though not an independent nation, was around well before 1963. But legally it was governed under British laws.
Clearly in the Obama senior INS records he used ‘Kenya’ as the nation name a lot.
I still have found the use of ‘Kenya, East Africa’ in the LFBC released in 2011 strange. ‘East Africa’ without ‘British’ in front of it was not formal geo-political name ever from what I can tell.
Entirely possible. The British protectorate of Kenya could have grandfathered(by law) her marriage to a Kenyan into her becoming a Kenyan citizen when Kenya became an independent nation.
Maybe someone representing one of the plaintiffs can file a request for judicial notice. I imagine Denofrio would already have brought this to the attention of Irion’s office, though...
What are the odds that this web page gets a thorough scrubbing by the Mahili court case hearing times tomorrow??
* scratches head in confusion *
” East Africa without British in front of it was not formal geo-political name ever from what I can tell.”
The whole situation is bizarre.
This, in addition to the material set out in his amicus brief, is exactly the sort of material that will support an issue not previously resolved by the USSC. The material should give serious pause to lower courts and judges inclined to rule against the hisorical meaning of NBC.
Assuming Leo has the option at this date to amend his amicus brief, I hope he will decide to find the time to do so.
Leo points out that Interpretation 324.2(b) provides a clear delineation of each status.
Arguably, there also a clear distinction between native- and natural born in Interpretation 324.2(a)(7) ...the status of native-born or natural-born citizen (whichever existed prior to )(emphasis added).
I believe that One of the GA complaints is using Minor v. Happersett as precedent for Obama’s ineligibility.
For example, Interpretation 301.1 United States citizenship doesn't make this same distinction.
(a) Birth in the United States . (1) Statutory development . Prior to 1866, absent any statutory or constitutional provision, it was generally held, under the common-law principle of jus soli (the law of the place), that a person born in the United States acquired citizenship at birth; this principle was incorporated in the Civil Rights Act of April 9, 1866, and, two years later, found expression in the Fourteenth Amendment to the United States Constitution, which provides that all persons born in the United States, and subject to its jurisdiction, are citizens of the United States.
The above constitutional provision has remained in effect ever since, and is restated in this section. 1/
(2) “United States” defined . Prior to January 13, 1941, the term “United States” included the continental mainland, Hawaii after August 11, 1898, 2/ Alaska, upon its formal incorporation into the Union on March 30, 1867, 3/ but not Puerto Rico. 4/ The Philippine Islands have never been deemed to be part of the United States within the purview of the 14th Amendment. 4a/
The territorial limits of the United States were extended on January 13, 1941, to include Puerto Rico and the Virgin Islands, 5/ and the current statute has added Guam to this definitive grouping 6/
In addition to the land areas mentioned above, ports, harbors, bays, enclosed sea areas, and a three-mile marginal belt, along the coasts thereof, form a part of the territorial limits of the United States. 7/
Notwithstanding the position taken in the second paragraph under INTERP 316.1(b)(2)(i) and in INTERP 329.1(c)(3)(ii) , Midway Islands is not and never has been considered a part of the “United States” in the sense that United States citizenship is or was acquired at birth therein under the Fourteenth Amendment to the United States Constitution, or any of the various statutory provisions which have conferred citizenship upon such basis.
(3) Effect of parents’ status . Alienage of a child's parents does not preclude his acquisition of citizenship jus soli nor did their racial ineligibility for naturalization under former laws have such result. 8/
Additionally, acquisition of citizenship is not affected by the fact that the alien parents are only temporarily in the United States at the time of the child's birth.
Innerestin’ stuff: http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=itp
It means the Immigration and Naturalization office is well aware of the difference, and if Obama had gone through their office for what ever reason would have been classified as a native, but NOT a natural born citizen. Apparently the Obama administration has not gotten around to scrubbing this page yet. Take your screenshots now!
Yes, that is Van Irion and his client’s argument.
Additional example of inconsistency.
INA: ACT 349 - LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN
Sec. 349. [8 U.S.C. 1481]
(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-
Of similar significance are the words of other committees 20f/ stating, in effect, that the [ new naturalization of oath section ] is designed to place the naturalized citizen in the same position as the native-born citizen with respect to the responsibility for bearing arms, performing noncombatant service, and performing work of national importance under civilian direction.
(xii) Under doctrine of election; origin of doctrine (Perkins v. Elg) . As early as 1875, the Attorney General of the United States asserted that a native-born United States citizen minor, who acquired dual nationality after birth through a parent’s resumption of foreign citizenship, could elect to retain United States citizenship upon attaining majority, 137/ a viewpoint subsequently approved by the United States Supreme Court in Perkins v. Elg, 138/ although not without prior dissident opinion. 139/ The Elg decision established that a right to elect United States nationality upon attaining majority existed under the circumstances stated, and that expatriation did not result when the dual national exercised such right by resuming residence in the United States. Upon the facts, the case did not decide any question as to the consequences of continued foreign residence and a failure to otherwise make an election, 140/ although the decision expressed the view that an election of foreign nationality by affirmative action could have been made by the dual national with expatriative effect. 141/
Based upon the decision in Perkins v. Elg, it was well established that a United States citizen, who after birth and during minority acquired a foreign nationality involuntarily through his parent’s naturalization, and the right to choose between nationalities on attaining majority. Upon an affirmative election of foreign citizenship, the dual national was deemed to have lost his United States nationality by foreign naturalization, pursuant to section 2 of the Act of March 2, 1907. 142/ The effect of Afroyim v. Rusk upon this rule is considered in INTERP 349.2(b)(2)(ii), infra.
Pursuant to an interpretation of the second paragraph of Article XII of the Italian nationality law of 1912, a minor child born outside Italy of Italian parents did not lose Italian nationality when the parent having legal custody was naturalized in the country of the child’s birth, if the child already possessed the citizenship of that country. Thus, a minor child who was both a United States citizen by native birth and an Italian citizen at birth through his parents did not lose Italian nationality upon t he naturalization of his father in the United States. It further follows that since such child initially was and thereafter remained an Italian citizen, he could not and did not acquire anything more in the way of Italian nationality under the first paragraph of Article XII of the Italian statute when his father resumed Italian citizenship in accordance with Article IX(3) of that statute. Accordingly, such child did not acquire dual nationality after birth, the doctrine of election had no application, and e xpatriation thereunder by foreign naturalization pursuant to section 2 of the Act of March 2, 1907, could not and did not take place. 148/
What you found here is an interpretation on the presumed citizenship of foundlings. It would make sense they would only be presumed to be native-born. Without knowing whether the parents are citizens, they can’t be presumed to be natural-born. Your other findings generally don’t need to make a distinction between natural-born and native-born, since as cited, the former would be a subset of the latter. What Leo found requires a different distinction because it involves restoring persons to their previous status, which obviously could be THREE different things: naturalized, native-born or natural-born.
If you are sincere, however, or even just playing the devil's advocate, please accept my apology and explain, at least for me, how any of what you offer diminishes the distinction in the gov language cited by Leo, between native- and natural-born.
Foundlings have their own specific section much further dsown.
(7) Foundlings . Under the Nationality Act of 1940, a “child” of unknown parentage , if found within the United States after January 12, 1941, and before December 24, 1952, was presumed to be a native-born citizen until shown to have been born outside the United States. 13/ A “person” whose parentage is similarly unknown, if found in the United States after December 23, 1952, while under 5 years of age, is conclusively presumed to be a native-born citizen, unless such person’s birth outside the United States is established before he or she attains majority. 13a/ Prior to Nationality Act of 1940, the statutes contained no provision governing the status of the founding. 14/
As Thomas Sowell likes to say, it's an “AH-HA!” moment.
But I don't think it neccesarilys hold up under scrutiny.
Anyhow, I am only posting exactly what is written in the INS statutory interpretations. The links are all there for full context.
It’s the first spot on the page you linked to that specifically uses the term “native-born.”
Ok, thank you. I appreciate your response and concede you may be correct vis a vis usage of the term “native-born”.
But again, what bearing can any inconsistent usage of one classification have on an entirely separate classificiation of citizenship? Are you be saying that contamination of one can necessarily contaminate another separate entity?
Let me posit this for consideration: What is the distinguishing difference in the presumed governmental definitions of native- and natural born citizenship?
Thank you for any response: will get back to you later, I am running out the door.
Each of the colonial powers called their piece of the Kenya pie by a different name.
The indigenous people always called it Kenya, and formalized the name “Kenya” upon its independence.
So it is. Then I stand corrected on that example.
I honestly don't know if there are any.
But that's a large part of the problem. Lack of a clear distinction on this matter.
So, am I a Natural Born Citizen? Both of my parents were born here, all four grandparents were born here, but under Italian law, I'm considered an Italian citizen.
I wouldn’t put too much stock in what is on the birth certificate. I have always believed that even if it is based on original data in their 1961 file, Barack Obama Sr. was probably no where near it when it was being filled out.
I think either Stanley Ann or Madelyn Dunham filled out the information as best they could, and they might not have been knowledgeable enough or picky enough to make sure it was correct.
I very much doubt Obama Sr. paid the slightest attention to the birth of his supposed son.
Arigatou for the Ping!
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