Skip to comments.Justice Thomas distributes Obama case for conference
Posted on 11/21/2008 1:36:10 PM PST by hamboy
Foreign national certified as presidential candidate
WASHINGTON, D.C. – On Wednesday, Nov. 19, U.S. Supreme Court Justice Clarence Thomas distributed Leo C. Denofrio’s renewed application for a stay of the election for conference on Dec. 5.
If four of the nine justices favor review, a hearing will be scheduled.
His first application was denied by Justice David Souter on Nov. 6. However, rules of the court allow for the renewed submission to a justice of choice.
Beginning in October, Denofrio made his way up through the ranks of the courts until his constitutional question as to the meaning of “natural born citizen” reached the Supreme Court.
He submitted an application for an emergency stay to prohibit the use of what he called “defective ballots” in the state of New Jersey because they contained ineligible candidates for the office of President of the United States, and asked that the court order New Jersey Secretary of State (SOS) Nina Mitchell Wells to remove the names of Republican candidate John McCain, Democratic candidate Barack Obama and Socialist Workers Party candidate Roger Calero from New Jersey ballots.
According to Denofrio, the three candidates are not “natural born citizens,” as required by the Constitution to hold the office of President of the United States.
Denofrio contends Obama, even if it were proven he was born in Hawaii, because his father was born in Kenya, having been born with split and competing loyalties, is not a ‘natural born citizen’ as required by Article 2, Section 1, of the U.S. Constitution.”
Denofrio contacted the New Jersey SOS Elections Division on Oct. 22 to determine what steps the SOS had taken to determine whether any of the presidential candidates listed on the New Jersey ballots were eligible for the office.
He was informed by Elections Manager Donna Barber the SOS took no steps to determine eligibility and assumed eligibility based only upon the fact they had been nominated.
However, New Jersey statute requires Wells to make a “statement” wherein she certifies, under her hand and official seal of office, the names … “of all such candidates for whom the voters within such county may be by law entitled to vote at such election.”
On Oct. 23, Denofrio spoke to Barber, who again informed him she had no reason to object to such party nominations and the statutory deadline for objections had passed. Barber specifically stated the Elections Division would not change ballots at such a late date.
Denofrio says New Jersey voters must rely upon the SOS to safeguard the integrity of their electoral process, especially during presidential cycles “when she must be most vigilant of her oath of office.”
If the SOS doesn’t protect the citizens of New Jersey, Denofrio states it is then up to the citizens to command Wells to do so.
As a result of Wells’ “misfeasance,” Denofrio says the state’s ballots contain the names of three presidential candidates who are not, “by law entitled,” to hold the office of President of the United States.
Denofrio states McCain was born in Panama, Calero was born in Nicaragua and Obama’s birthplace has not been verified.
He asks, “If the SOS’s role is clerical, then who is responsible for Roger Calero appearing on the ballots?”
Calero, born in Nicaragua, not only is not a “natural born citizen,” he isn’t even a citizen. He’s a resident alien who also appeared on numerous state ballots during the 2004 presidential election.
While the Socialist Workers Party was somehow qualified to place its candidate on the ballot in 10 states, five of those states refused to list Caldero on their ballots because he is not constitutionally qualified and substituted candidate James Harris, a “surrogate nominee.”
Denofrio states, “… had the U.S. legislature intended to grant ‘natural born citizen’ status to all who were born on U.S. soil, then the 14th Amendment would contain the words ‘natural born citizen,’ but it doesn’t … McCain was born in Panama. Panama is not considered U.S. soil, nor has it ever been considered as such.”
The Naturalization Act of 1790 stated, “… the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens ...”
However, Denofrio points out the Naturalization Act of 1795 specifically repealed the 1790 act and replaced it with the same clause except with the words “natural born” deleted.
Denofrio also quotes a section from the U.S. Department of State’s Foreign Affairs Manual, which states, “Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to U.S. jurisdiction and does not acquire U.S. citizenship by reason of birth.”
Denofrio says McCain was neither born on U.S. soil, nor was he naturalized and is a citizen at birth by statute, which is also addressed in the Foreign Affairs Manual.
McCain is neither “natural born” nor naturalized, says Denofrio. Instead, he may claim citizenship from 8 USC 1402(a): “Any person born in the Canal Zone on or after Feb. 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.”
In other words, Denofrio states, “McCain is in the class of citizens who obtain their citizenship at birth, but not from the Constitution, but rather federal statute.”
The Foreign Affairs Manual also addresses the issue of eligibility for president as such: “It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.”
As far as the issues surrounding Obama’s birth certificate are concerned, Denofrio states Obama has not been presented with a legal request from a party with proper standing to command him in any way, and therefore has no legal responsibility to produce one.
However, Denofrio says he believes if “Obama is presented with a legal request from a government authority sanctioned to make such request, that Senator Obama will respond accordingly and put the issue behind him forever.
“That being said, petitioner regretfully submits that since candidate Obama was born to a Kenyan father, he also is not eligible to the office of president since he is not a ‘natural born citizen’ by the Constitution.”
In conclusion Denofrio states had the legislature intended to grant “natural born citizen” status to all who were born on U.S. soil, the 14th Amendment would contain the words “natural born citizen.”
He said, “And so this proposition leads to the logical conclusion that a natural born citizen is a citizen born in the United States to parents, neither of which is an alien. Having an alien parent would tie such person at birth to the possibility of other loyalties and laws. And such a person, even if he is as loyal and devoted to this country as Senators Obama and McCain have proven to be, is not eligible to hold the office of President of the United States.”
Photo: Leo C. Denofrio, who retired his license to practice law to become a professional poker player, appears to have the most promising lawsuit challenging Obama and other candidates' eligibility to become President of the United States under constitutional requirement they be "natural born" citizens.
Leo is cool!
Leo has clearly had more success w/ AJ offsuit than I could ever hope for. :)
“Obama looks to be a naturalized citizen—but maybe he’s not even that.”
My brother was born in Germany and our grandfather insisted he be naturalized “So the krauts couldn’t draft him ...”. Gramps fought in France, WWI and his son in WWII, 8th Air Force.
Mother didn’t think it necessary since he was born in a US military hospital. However, Donofrio cites authority in his brief showing gramps was pretty smart after all.
Barry’s dad was a real hound and both his parents died young. So how do we know that their spawn is even American, particularly considering the poor opinion both had of America .....
He could be a Kenyan or, or even worse .......... a British subject!
“Ah say, ah say—that’s a JOKE, eh wot?” Foghorn Smythe-Leghorn
Can it be that Justice Thomas will save our Republic? He’d be a worthy man if so.
Lord, help the justices uphold our Constitution.
I’ll restate that if Obama is indeed a natural born citizen, I accept his election.
But I don’t think he is.
But if this guy’s right, then BOTH Obama and McCain are ineligible. What does that mean constitutionally? A new election? Hillary?!
Can you imagine that debate?! I could do without more wardrobe comments in the news, however.
As of this postin, Leo doesn’t have an entry on Wikipedia. If he manages to pull this off and help save the Republic, it’ll be interesting reading his entry. He will be a marked man if The One is barred from the Oval Office by virtue of the Constitution.
This guy is an attorney in NJ, right? That’s all I know.
My only concern is if this guy is like Berg and doing this to get HC in office. Of course, it sounds like the proverbial rock and a hard plac. . .
And this race thing is a farce. Thomas was never given the same praise by the Democrats and Mainsteam Press for his accomplishments ...and he is a true African - American who grew up with and lived the real black experience (in the South, no less), unlike Obama who really lived outside of the black culture ...until marrying Michelle.
This case needs to be heard. The America people need to know the president is qualified to be president. The cloud of suspicion must be cleared or proven to be true.
Then when we hear the new president swear to “support and defend the constitution . . “ we might believe him. Hmmmmmmmmm.
That would be hilarious.
“Can you imagine that debate?! I could do without more wardrobe comments in the news, however.”
The news coverage would be nothing but how well their outfits matched, if their hairstyle was current, or if it appeared that they... gasp!... had breasts. Chris Matthews in particular would have some especially tasteful things to say, I’m sure.
That wouldn't happen as per the 20th Amendment. However, as of right now they aren't even President or VP elect. Not until Dec 15th.
I think McCain is considered born a natural citizen because he was born in the canal zone of a father who was there for the Navy—I think military brats born on bases, forts, or navy yards are considered natural born citizens.
McCain wasn’t born on the base but both his parents were citizens.
But the lawsuit filed by Donofrio claims that both are not natural born citizens under the constitution. McCain, he claims, is a citizen by statute, which does not qualify as natural born.
Love it~I’m sure he’d get and even BIGGER tingle up his leg!
Confirming my response—Donofrio does not claim that McCain is not a citizen, just that he is not “natural born” as per the constitution.
I know, but if the case gets taken, both points are in play. And do we trust someone that claims that?
SCOTUS knows the Constitution. I trust them. Well.............some of them. lol
But if this guy is preporting that nonsense . . .What do we know about Donofrio? Berg was absolutely not credible and yet so many laid their hopes with him bc they wanted him to be right. I just wish I saw more direct evidence, with sources.
Berg’s case is credible enough that Obama has to answer by Dec 1st. And Donofrio doesn’t make the legal decisions, he just files the suit. Donofrio’s suit is credible because it’s against the NJ Sec of State and they had an alien on the ballot. That should get the SCOTUS attention. McCain is a moot point and out of the race.
I’m sure Clarence Thomas can be impartial and judge the case on the merits. He will look at it very closely because of how he’s been spoken of by the BHusseinO’zero. He won’t want to make any errors because it would fall back on him if there are any. Good call. Very good call, Leo.
No McCain ‘s father was in military and he was born in Panama, and a natural born citizen.
It's not aerospace engineering, naturalized according to the dead white guys means being born of a parent or parents who are official United States citizens. If Obama was born outside of the States, say Kenya, his mom was a couple on months shy of being an official citizen of the United States according to the laws at that time. I guess the powers that be at that time were too hard on Marxist/atheistic/up to 20 year old whores who traveled abroad and got knocked up by foreign polygamists.
Not saying this happened but several people are buying this. If Obama would be more forthcoming and Bush's Executive Branch would be more open about eligibility (Bush is in charge of investigating/executing the law and upholding the Constitution) this whole situation would be clearer.
Penn mom is up to speed, she just enjoys acting obtuse and repeating the same inquiries over and over, ad nauseum.
Nope. The Executive has no role in this. There's no law on the books regarding the Executive investigating/verifying candidates -- and if there were, it would be a political nightmare. You could argue, as Donofrio does, that it should be the responsibility of the state SOS's, but they've punted on the issue. So, now it's the province of the Supreme Court in its role of interpreting the Constitution -- if they choose to get involved.
The "natural born" question has never been clarified. The Constitution is vague on the issue, and this is the first modern-day election in which a winner of the general election (but not, as yet, the electoral vote) triggers the question.We've never had a winner with a foreign, non-citizen father.
Goldwater-Kennedy was the last election in which this issue was raised, since Goldwater was born in Arizona while it was still a territory. There were plenty of lawsuits filed, pre-election, that were shot down for lack of standing (as in this election), but since he didn't win, after the general election no one raised the issue, and it was never resolved.
You're basing your argument on an oath, and not on the Constitution.
Speaking of oaths, here's the Congressional oath:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Does that oath mean the Congress has the power or obligation to investigate a Presidential candidate?
What does that have to to with an already ratified LAW that that President is in charge of executing? Also the oath has meaning pertaining to preserving and protecting the integrity/executing the laws of the Constitution.
Congress can't do squat until (Obama as an example) the EC votes and Congress approves the Obama’s Presidency. Obama is not elected yet but in terms of passing himself off as naturalized or a citizen by law with the intent to deceive (Service records) is a felony in which the Executive Branch is in charge of investigating allegations.
By the way here is the history of citizenship (For those born abroad) laws/SC decisions the Executive Branch is/was in charge of “executing”:
1790 First Congress, Act of March 26th, 1790, 1 Stat. 103.
“And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States”.
1795 Act of January 29, 1795. Section 3, 1 Stat. 414, 415. (Same general provisions as above).
1802 Act of April 14, 1802. Section 4, 2 Stat. 153, 144. (Same general provisions as above).
1855 Act of February 10, 1855. Section 1, 10 Stat. 604.
“All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”
1878 Section 1993, Revised Statutes of 1878. (Same general provisions as 1855 Act).
1907 Act of March 2, 1907, Section 6, 34 Stat. 1228, 1229.
“That all children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority.”
1934 Act of May 24, 1934, Section 1, 48 Stat. 797.
“Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of birth of such child is a citizen of the United States, is declared to be a citizen of the United States: but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.”
1940 The Nationality Act of 1940, Section 201, 54 Stat. 1137.
“Section 201. The following shall be nationals and citizens of the United States at birth:
“(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years’ residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien: Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years: Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years’ residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease.
(h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934.”
1952 The Immigration and Nationality Act of June 27, 1952, 66 Stat. 163, 235, 8 U.S. Code Section 1401 (b). (Section 301 of the Act).
“Section 301. (a) The following shall be nationals and citizens of the United States at birth:
“(1) a person born in the United States, and subject to the jurisdiction thereof;
“(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States, who prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.
(b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State(s) for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.
(c) Subsection (b) shall apply to a person born abroad subsequent to May 24, 1934: Provided, however, That nothing contained in this subsection shall be construed to alter or affect the citizenship of any person born abroad subsequent to May 24, 1934, who, prior to the effective date of this Act, has taken up a residence in the United States before attaining the age of sixteen years, and thereafter, whether before or after the effective date of this Act, complies or shall comply with the residence requirements for retention of citizenship specified in subsections (g) and (h) of section 201 of the Nationality Act of 1940, as amended.”
1956 Fee v. Dulles (236 F.2nd 855 (C.A. 7, 1956), (355 U.S. 61)). A child born abroad on or after May 24, 1934, who acquired U.S. citizenship through one citizen parent had to comply with certain conditions for establishing American residence in order to retain his American citizenship. In Fee v. Dulles, the lower courts upheld the original administrative position that a person who had not complied with the conditions prescribed by previous statutes had lost his citizenship and derived no benefit from the more generous retention provisions of the 1952 act. However, upon consideration of this issue when it reached the Supreme Court the Solicitor General confessed error, taking the position that a person who could comply with the terms of section 301 (b) and (c) would retain his American citizenship, even though he had not fulfilled similar provisions of the earlier statutes. The Supreme Court reversed the lower court, and thus adopted the view projected in the Solicitor General’s confession of error.
1956 The Act of March 16, 1956, (70 Stat. 50), provided as follows:
“That section 301 (a) (7) of the Immigration and Nationality Act shall be considered to have been and to be applicable to a child born outside of the United States and its outlying possessions after January 12, 1941, and before December 24, 1952, of parents one of whom is a citizen of the United States who has served in the Armed Forces of the United States after December 31, 1946, and before December 24, 1952, and whose case does not come within the provisions of section 201 (g) or (i) of the Nationality Act of 1940”.
1957 Act of September 11, 1957 (71 Stat. 644), provides as follows:
“Section 16. In the administration of section 301 (b) of the Immigration and Nationality Act, absences from the United States of less than twelve months in the aggregate, during the period for which continuous physical presence in the United States is required, shall not be considered to break the continuity of such physical presence.”
1961 Montana v. Kennedy (366 U.S. 308 (1961)). The court ruled that a child born abroad prior to May 24, 1934, to an American citizen mother did not acquire American citizenship at birth, since at that time citizenship at birth was transmitted only by a citizen father. Although subsequent legislation conferred upon American women the power to transmit citizenship to their children born abroad, such legislation was not retroactive and did not bestow citizenship on persons born before the enactment of such legislation.
See also: Wolf v Brownell (253 F.2nd 141 - (C.A. 9, 1958)-certiori denied (358 U.S. 859)). and D’Alessio v. Lehmann (289 F.2nd 371 - (C.A. 6, 1961)-certiori denied (368 U.S. 822)).
1964 Schneider v. Rusk (377 U.S. 163 (1964)). Mrs. Schneider, a German national by birth, acquired United States citizenship derivatively through her mother's naturalization in the United States. She came to the USA as a small child with her parents and remained there until she finished college. She then went abroad for graduate work, was engaged to a German national, married in Germany, and stayed in residence there. She declared that she had no intention of returning to the United States. In 1959, she was denied a passport by the State Department on the ground that she had lost her United States citizenship under the specific provisions of Paragraph 352 (a)(1) of the Immigration and Nationality Act, 8 U.S.C. Paragraph 1484 (a)(1), by continuous residence for three years in a foreign state of which she was formerly a national. The Court, by a five-to-three vote, held the statute violative of Fifth Amendment due process because there was no like restriction against foreign residence by native-born citizens. The dissent (Mr. Justice Clark, joined by Justices Harlan and White) based its position on what it regarded as the long acceptance of expatriating naturalized citizens who voluntarily return to residence in their native lands; possible international complications; past decisions approving the power of Congress to enact statutes of that type; and the Constitution's distinctions between native-born and naturalized citizens.
1966 Act of November 6, 1966 (80 Stat. 1322), amended Section 301 (a) (7) of the Immigration and Nationality Act of 1952 to read as follows:
“Section 301 (a) (7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided*, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date.
1967 Afroyim v. Rusk (387 U.S. 253 (1967)). Mr. Afroyim, a Polish national by birth, immigrated to the United States at age 19 and after 14 years in the USA acquired United States citizenship by naturalization. Twenty-four years later he went to Israel and voted in a political election there. In 1960, he was denied a passport by the State Department on the ground that he had lost his United States citizenship under the specific provisions of Section 349 (a)(5) of the Immigration and Nationality Act of 1952 (8 U.S.C. Section 1481(a)(5), by his foreign voting. The Court, by a five-to-four vote, held that the Fourteenth Amendment's definition of citizenship was significant; that Congress has no “general” power, express or implied, to take away an American citizen's citizenship without his assent,” (387 U.S. at 257); that Congress’ power is to provide a uniform rule of naturalization and, when once exercised with respect to the individual, is exhausted, citing Mr. Chief Justice Marshall's well-known but not uncontroversial dictum in Osborn v. Bank of the United States (9 Wheat. 738, 827 (1824)); and that the “undeniable purpose” of the Fourteenth Amendment was to make the recently conferred “citizenship of Negroes permanent and secure” and “to put citizenship beyond the power of any government unit to destroy,” (387 U.S. at 263). Perez v. Brownell (356 U.S. 44 (1958)), a five-to-four holding within the decade and precisely to the opposite effect, was overruled. In dissent (Mr. Justice Harlan, joined by Justices Clark, Stewart and White) took issue with the Court's claim of support in the legislative history, elucidated the Marshall dictum, and observed that the adoption of the Fourteenth Amendment did not deprive Congress of the power to expatriate on permissible grounds consistent with “other relevant commands” of the Constitution. (387 U.S. at 292).
1971 Rogers v. Bellei (401 U.S. 815 (1971)). Bellei challenged the constitutionality of Section 301 (b) of the Immigration and Nationality Act of 1952, which provided that one who acquires United States citizenship by virtue of having been born abroad to parents, one of whom is an American citizen, who has met certain residence requirements, shall lose his citizenship unless he resides in this country continuously for five years between the ages of 14 and 28. A three-judge District Court held the section unconstitutional, citing Afroyim v. Rusk and Schneider v. Rusk. The Supreme Court, in a five-to-four decision, held that Congress has the power to impose the condition subsequent of residence in the country on Bellei, who does not come within the Fourteenth Amendment's definition of citizens as those “born or naturalized in the United States”, and its imposition is not unreasonable, arbitrary or unlawful. Justice Black filed a dissenting opinion in which Justices Douglas and Marshall joined. Justice Brennan filed a dissenting opinion in which Justice Douglas joined.
1972 Act of October 27, 1972 (87 Stat. 1289), amended the Immigration and Nationality Act of 1952 by changing section 301 (b) to the new text below; by repealing Section 16 of the Act of September 11, 1957; and by adding the new section 301 (d) below.
“Section 301 (b) Any person who is a national and citizen of the United States under paragraph (7) of subsection (a) shall lose his nationality and citizenship unless (1) he shall come to the United States and be continuously physically present therein for a period of not less than two years between the ages of fourteen years and twenty-eight years; or (2) the alien parent is naturalized while the child is under the age of eighteen years and the child begins to reside permanently in the United States while under the age of eighteen years. In the administration of this subsection absences from the United States of less than sixty days in the aggregate during the period for which continuous physical presence in the United States is required shall not break the continuity of such physical presence.”
“Section 301 (d) Nothing contained in subsection (b) as amended, shall be construed to alter or affect the citizenship of any person who has come to the United States prior to the effective date of this subsection and who, whether before or after the effective date of this subsection, immediately following such coming complies or shall comply with the physical presence requirements for retention of citizenship specified in subsection (b) prior to its amendment and the repeal of section 16 of the Act of September 11, 1957.”
1978 Act of October 10, 1978 (92 Stat. 1046) repealed subsections (b), (c) and (d) of section 301 of the Immigration and Nationality Act of 1952, effective as of October 10, 1978. It also struck out “(a)” after “Section 301” and redesignated paragraphs (1) through (7) as subsections (a) through (g) respectively.
1980 Vance v. Terrazas: upheld the constitutionality of Section 349(c) of the INA. Under this provision, the party claiming that citizenship has been lost has the burden of proving such loss by a preponderance of the evidence. Moreover, a person who commits a statutory act of expatriation is presumed to have committed the act voluntarily, but the presumption may be overcome upon a showing, by a preponderance of the evidence, that the act was not performed voluntarily. The Court expressly rejected the contention that expatriation must be proved by clear and convincing evidence.
The Supreme Court reaffirmed and explained its holding in Afroyim v. Rusk that in order to find expatriation, “the trier of fact must...conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship”. The court declared that it would not be consistent with Afroyim “to treat the expatriating acts specified in the statute as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen”. As the Court explained: “In the last analysis expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.”
1986 Act of November 14, 1986 (PL 99-653) amended section 301(g) (8 U.S.C. 1401(g)) by striking out “ten years, at least five” and inserting in lieu thereof “five years, at least two”. This reduced the prior residence time in the United States necessary for a U.S. citizen married to an alien to be able to automatically transmit U.S. citizenship to a child born abroad from the former period of ten years, five of which after the age of 14, to five years, two of which after the age of fourteen years.
This act also: (a) amended Sec 340(d) of the code reducing the period of time after naturalization before a naturalized citizen can reside abroad from five years to one year; (b) amended section 349 of the code so that a child who obtained a foreign nationality upon the application of the parent before the child reached age 21 years, no longer has to return to the United States to establish permanent residence in the United States prior to age 25; (c) amends section 349 so that a U.S: citizen who is a national of a foreign country and who performs an expatriating act under the provisions of section 349 is no longer presumed to have acted “voluntarily” if the individual has resided in this foreign country more than ten years. This reinforces the importance of the individual’s intent in performing such an act as a deliberate intent to lose U.S. citizenship, rather than a mere automatic presumption that such intent existed.
1994 The Immigration and Nationality Technical Corrections Act of 1994 amended several sections of the Immigration and Nationality Act, and took effect on March 1, 1995.
Amended Section 322 permits children born overseas of a U.S. citizen parent to be eligible for a certificate of citizenship if either their U.S. citizen parent or a U.S. citizen grandparent had been physically present in the United States for at least five years, two of which after the age of 14, prior to the child's birth abroad. This provision also applies to a child adopted abroad.
Amended Section 301 (h) gives back U.S. citizenship to a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.
Amended Section 324 (d) (1) allows former U.S. citizens who lost their citizenship through failure to meet the former conditions of physical presence in the United States to retain their citizenship to regain their citizenship without having to file an application for naturalization.
The law also allows U.S. citizen parents to apply for U.S. citizenship from abroad for their foreign-born children under the age of 18, provided the child is physically present in the United States pursuant to a lawful admission when the citizenship is granted.
1998 In Miller vs Albright (decided April 22, 1998), the Supreme Court in a 6:3 decision held that it was constitutional for Section 309 of the Immigration and Nationality Act (8 U.S.C. Section 1409) to give U.S. citizen mothers more rights to transmit U.S. citizenship to a child born out of wedlock abroad than to U.S. citizen fathers. There were three separate opinions on the majority side and two opinions on the dissenting side.
He's arguing that the NJ SOS was remiss in her duty to certify that the Presidential candidates on the NJ ballot were eligible "by law" for the office.
In Obama's case, he's not even arguing that he wasn't born in the US. Donofrio is arguing that he is not a "natural born" citizen in the sense that the Constitution requires, since his dual citizenship at birth (and therefore divided loyalties) derived from his Father's British citizenship disqualifies him.
In McCain's case, he quotes from the DOS Foreign Affairs Manual to argue that McCain is not "natural born," but a citizen by statute:
"Despite widespread popular belief, U.S. abroad and U.S. diplomatic facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to U.S. jurisdiction and does not acquire U.S. citizenship by reason of birth."
Calero (Socialist Party) isn't even a citizen, and yet he was allowed on the NJ ballot, while five other states disqualified him on that basis.
We've never had a candidate whose father was a foreigner who never became a citizen. We've never had a candidate who born on foreign soil. This election is unique, and there are very few guidelines to cover the situation. You can argue that it's the duty of the SOS's to declare eligibility. You can argue that it falls to Congress in the their role as counters of the Electoral Vote. Or you can argue that it's the responsibility of the Supreme Court, as the only branch that is not (or should not be) populated by political partisans.
No one, but you, argues that it's the responsibility of the Executive Branch.
Read this; it covers the range of possibilities, and it's the paper that inspired Donofrio to take the steps he did to get the suit to SCOTUS. (Whether they act on it is another matter.)
Very well-done article.
Yes, it is. I wish more people would read it.
So here, I'll post the link again.
In Dred Scott process won. It was a completely logical ruling, fully informed with stare decisis and the legal process of the time. Wonderful ruling!
In Terri Schiavo's case process won. She was murdered by order. Oh what a process!
Black hearted rulings both. It is what happens when process trumps the ideals of Liberty and Law both. Neither Law nor Liberty will stand long on ground where blood runs because Judges put process before moral common sense.
I found it there and ARE YOU KIDDING ME RIGHT NOW???!!!
Is this real? This is unbelievable — holy crap.
If this is indeed real it needs to go viral, like yesterday.
“Yay! LOL. I would love Hillary v. Palin.”
Nooooo thanks, we have enough catfights at work as it is!
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