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. I’ve never seen any mention of this fact before and wonder how many are aware of it in the ineligibility camp. Here’s the quotes:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104/0-0-0-48602.html
He then quoted two provisions from the link provided, but there’s 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.)
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-48438.html
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 haven’t 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 don’t 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 Court’s 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 author’s 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 Court’s 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 administration’s 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.
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.
OK.
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.”
Agreed, 100%.
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.
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104/0-0-0-45113.html#0-0-0-22819
(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.
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.
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-10369.html
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-
Etc.
More:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45077/0-0-0-49904.html
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.
And:
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104/0-0-0-51376.html
(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.
-snip-
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/
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