Miller v. Albright, 523 US 420 – Supreme Court 1998
The majority opinion observes that:
There are “two sources of citizenship, and two only: birth and naturalization.” United States v.Wong Kim Ark, 169 U. S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person “born in the United States, and subject to the 424*424 jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” 169 U. S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703.
Justice Breyer, with whom Justice Souter and Justice Ginsburg join, dissenting.
I recognize that, ever since the Civil War, the transmission of American citizenship from parent to child, jus sanguinis, has played a role secondary to that of the transmission of citizenship by birthplace, jus soli. See Rogers v. Bellei, 401 U. S., at 828; see also Weedin v. Chin Bow,274 U. S. 657, 669-671 (1927) (citing United States v. Wong Kim Ark, 169 U. S. 649, 674 (1898), and id., at 714 (Fuller, C. J., dissenting)). That lesser role reflects the fact that the Fourteenth Amendment’s Citizenship Clause does not mention statutes that might confer citizenship “at birth” to children of Americans 479*479 born abroad. U. S. Const., Amdt. 14, § 1 (stating that “[a]ll persons born or naturalized in the United States . . . are citizens”). But that omission, though it may give Congress the power to decide whether or not to extend citizenship to children born outside the United States, see Rogers v. Bellei, supra, at 835, does not justify more lenient “equal protection” review of statutes that embody a congressional decision to do so.
Citizenship and the 14th Amendment – Debate
Two legal experts discuss the question if the US Constitution grants citizenship to anyone born on US soil. Edward J. Erler, from the Claremont Institution, a conservative think tank, and Garrett Epps, Professor of Law at the University of Baltimore. Erler makes the argument against and Epps quickly exposes some major flaws in the accuracy of Erler’s comments. Since I have seen several people on this forum make similarly confused argument, it would serve them well to read the 4 postings in this debate carefully.
MANDOLI v. ACHESON, 344 U.S. 133 (1952)
(pdf)
The Supreme Court first observed that even though born of Italian Parents, he was a dual citizen at birth.
Petitioner Mandoli was born in this country, of unnaturalized Italian parents. These circumstances made him a citizen of the United States by virtue of our Constitution and a national of Italy by virtue of Italian law.
Did he even have to elect citizenship when reaching the age of majority?
The Nationality Act of 1940, 9 though not controlling here, shows the consistency of congressional policy not to subject a citizen by birth to the burden and hazard of election at majority. This comprehensive revision and codification of the laws relating to citizenship and nationality was prepared at the request of Congress by the Departments of State, Justice and Labor. The State Department proposed a new provision requiring an American-born national taken during minority to the country of his other nationality to make an election and to return to the United States, if he elected American nationality, on reaching majority. The Departments of Justice and Labor were opposed and, as a consequence, it was omitted from the proposed bill.
On Perkins v Elg
What it held was that citizenship conferred by our Constitution upon a child born under its protection cannot be forfeited because [344 U.S. 133, 139] the citizen during nonage is a passive beneficiary of foreign naturalization proceedings. It held that Miss Elg had acquired a derivative dual-citizenship but had not suffered a derivative expatriation. In affirming her right to return to and remain in this country, it did not hold that it was mandatory for her to do so.
Loss of birth right citizenship – US Law
Note: Obama returned to the United States well before reaching the age of eighteen and thus the only possible ways for him to have lost his birthright citizenship is through 1481(a)(3), serving in the foreign armed forces, 1481(a)(5), formally renouncing his citizenship to a consular representative, 1481(a)(6), making a formal written statement while in the United States in time of war or 1481(a)(7), treason. Per 1481(b), it’s up to the party asserting that a loss of nationality occurred to present the necessary evidence.
In other words, lacking any evidence that Obama renounced his citizenship, he continued his US birthright citizenship when reaching the age of majority.
The current nationality laws of the United States do not specifically refer to dual nationality. The automatic acquisition or retention of a foreign nationality does not affect U.S. citizenship; however, under limited circumstances, the acquisition of a foreign nationality upon one’s own application or the application of a duly authorized agent may cause loss of U.S. citizenship under Section 349 (a)(1) of the Immigration and Nationality Act [8 U.S.C. 1481 (a)(1)].
In order for loss of nationality to occur under Section 349 (a)(1), it must be established that the naturalization was obtained voluntarily by a person eighteen years of age or older with the intention of relinquishing U.S. citizenship. Such an intention may be shown by the person’s statements or conduct (Vance v. Terrazas, 444 U.S. 252, 1980), but as discussed below in most cases it is assumed that Americans who are naturalized in other countries intend to keep their U.S. citizenship. As a result, they have both nationalities.
United States law does not contain any provisions requiring U.S. citizens who are born with dual nationality to choose one nationality or the other when they become adults (Mandoli v. Acheson, 344 U.S. 133, 1952). While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the U.S. Government does not endorse dual nationality as a matter of policy because of the problems that it may cause. Claims of other countries upon dual-national U.S. citizens often place them in situations where their obligations to one country are in conflict with the laws of the other. In addition, their dual nationality may hamper efforts to provide diplomatic and consular protections to them when they are abroad.
Naturalization by Treaty
Note: Under international law and the law of nature, inhabitants of a nation, which title is transferred to another nation, become citizens of the new nation, with the opportunity of election to maintain the original citizenship. This fact is important when discussing Obama’s British citizenship which was lost when, under the Kenya Independence Act, was transferred to Kenya. Under Kenyan Constitution, Obama’s failure to elect Kenyan citizenship when reaching the age of majority, caused Obama to lose his Kenyan citizenship, while continuing his US birthright citizenship. Similar treaties between the United States and Great Britain, allowed the inhabitants of ceded territory to elect and/or abandon British or United States citizenship.
Chapter VI.—Naturalization By Treaty.
The question of naturalization by treaty may be passed over without any considerable comment. The general principles controlling such cases are entirely clear and have been understood and acted upon by the Government from the first.
Election of Citizenship – Children w. dual nationality
Note: The general principle is that a child born on US soil cannot lose his birthright citizenship through the actions of the parents, and, once reaching the age of majority, can make the decision as to which birthright citizenship to continue.
Source: United States. Dept. of State, James Brown Scott, David Jayne Hill, Gaillard Hunt, Citizenship of the United States, expatriation, and protection abroad, Issue 326 of House document, GPO 1906.
Inasmuch as our Government declares that all persons born in the United States are citizens of the United States, and also recognizes as well as adopts, on its own part, the rule that children of citizens resident abroad are citizens of the country to which the parents owe allegiance, there arises, as will be seen, a conflict of citizenship spoken of usually as dual allegiance. The matter was up for consideration and decision in Trimbles v Harrison, 1840, 1 B Monk 140 ,where the matter to be determined was as to the citizenship of a woman who born in Boston in 1773 of British parents, was taken by her father to England prior to 1798, where she was married. In discussing this question, the court said:
Orly – James v Obama – Part 2
C. President elect’s Failures to Qualify
17. By public evidence, President Elect, Obama had failed to qualify:
18. A) By allegiance to Britain at birth via his alien colonial father, irreparably negating his being a “natural born citizen”;
Comment: Begging the question. In fact, as several early court cases and common law history have shown, the fact that one or more parents has some allegiance to another country, does not mean that a child born on US soil has the same allegiance. In fact, under allegiance of, is a term commonly misconstrued when all it means is that the child has to obey the laws of the country. This was added to exclude children from diplomats, who are born under diplomatic immunity, and children of invading military.
Immigration Law: Renunciation for Minor Children
F. RENUNCIATION FOR MINOR CHILDREN
Parents cannot renounce U.S. citizenship on behalf of their minor children. Before an oath of renunciation will be administered under Section 349(a)(5) of the INA, a person under the age of eighteen must convince a U.S. diplomatic or consular officer that he/she fully understands the nature and consequences of the oath of renunciation, is not subject to duress or undue influence, and is voluntarily seeking to renounce his/her U.S. citizenship.
2009-03-16 – Sullivan v Marshall – Dismissed w. Prejudice
Comment: Sullivan v Marshall is a lawsuit I had not been tracking. Luckily, the Right Side of Life blog did track it and reports that the case had been dismissed w. prejudice.
Russ: Exploring the Evidence
The following is a work in progress in which I explore the claims left in the comments by a poster name Russ. Since his comments seem to be repeating typical assertions found on the web, assertions which in many cases are contrary to fact, I have decided to take his claims and show ‘the rest of the story’. I encourage anyone interested to contribute their observations, comments and suggestions.
2009-03-17 – Orly Taitz – Touhy request (FOIA)
Comment: Has noone informed Orly that the Keyes v Bowen lawsuit has been thrown out? The FOIA action, which was just recently touted by Orly as “US Attorney Generals signing on to her cause”, but was in fact nothing more than a refusal of the DOJ to abide by the issued Subpoena, seems to be moot right now. What is interesting is how many of the disproven assertions Orly still seems to be considering ‘facts’. Enjoy. My predictions? The FOIA request will be thrown out as moot.
AFFIDAVIT IN SUPPORT OF DEMAND FOR INFORMATION,
UNDER UNITED STATES EX RELATOR TOUHY V RAGEN
STATE OF CALIFORNIA
COUNTY OF ORANGE
Exploring the "subject to the jurisdiction thereof" clause
Source: Constitutional Law: General Conceptions, Fundamental Rights, Liberty and Property, Powers of Congress, Federal and State Jurisdiction, By James Parker Hall, Published by deBower-Chapline co., 1910
§80. Persons excluded as not “subject to the jurisdiction.” What qualification upon citizenship by birth is introduced by the phrase, “and subject to the jurisdiction thereof?” This has been judicially explained to exclude from citizenship five classes of persons who have been actually born within the territorial limits of the United States. The exclusion of four of these classes results from the rules of public international law in view of which the Fourteenth Amendment was adopted and in the light of which it has to be interpreted. The fifth class is one peculiar to our own government, but having an origin and history that as fully entitle it to exclusion as the other four.
The Jefferson Birthright myth exposed
The following myth is doing its rounds on the internet which ‘argues’:
The State of Virginia outright rejected the common law doctrine in 1777 when it adopted the following doctrine written by Thomas Jefferson:
[A]ll infants, whenever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed; and all others not being citizens of any, of the United States of America, shall be deemed aliens.
Loss of Citizenship Clarified – 1940 and 1952 Immigration and Nationality Acts
Source: What’s your evidence – A top notch resource for any Eligibility Researcher
Immigration law has been complicated due to the fact that Congress has passed various acts and amendments to said acts. We shall start with the Act of 1940 and then discuss the changes made in 1952 since these are relevant to President Obama as he was born in 1961. The results are that Obama would not have lost his US birth right citizenship, even if his parents had managed to obtain an Indonesian citizenship for him, something prohibited by Indonesian law.
Orly Taitz – She did it
Orly Update
Orly Taitz reports that she managed to get Robert’s attention and delivered a box full of documents to his security people. While I have to admire the tenacity of Orly, her posting also reveals an aspect which I personally find troublesome. And no it is not the lack of legal support for her claims, and it is not the speculative nature of her assertions, no it is the following statement
Why are you afraid to speak up, to stand up for you constitution? Why are you afraid to tell this arrogant jerk from Africa and Indonesia- You need to go home, you cannot be a president and commander in chief because you are not a Natural born Citizen. To be a Natural born Citizen you have to have both parents as citizens. Your father was never a US citizen and you don’t qualify and you also spit us in the face by refusing to unseal your vital records. There is no proof that you are even a citizen. For all we know, you need to go back to Kenya and wait for your green card, and that after we try you for all the crimes perpetrated upon American citizens.
As I and others have already pointed out, there is no credible evidence that President Obama is an Usurper. In fact, since he is the de facto and likely also the de jure President of the United States, we cannot make claims that lack in supporting evidence.
Mario Apuzzo – Still wondering about dual citizenship…
Mario Apuzzo
Mario Apuzzo wonders:
Hence, how do you maintain that being absolutley subject to the jurisdictiohn of the U.S. only requires that the child be born on U.S. soil when I have just shown you that just being born on U.S. soil can still create double or triple allegiances in the child by inheritance of allegiances from his alien parents?
Hence, you cannot deny that a child born on U.S. soil to one or two alien parent(s) will also acquire one or two additional allegiances from that/those parent(s). Or can you?
Sure, the concept of dual or more citizenships was not foreign to the Framers and legislators and justices since then. Therefore, children are not deemed to choose any citizenship as their birth right until their reach the age of adulthood when they choose which citizenship to maintain. If this includes the birth right citizenship of the United States then the child, when reaching adulthood can indicate, if necessary, that he wants to continue his US citizenship and he remains a natural born citizen.
Orly Taitz on Israel Radio – There is nothing 'this man' (Obama) says which is ever true.
Same old assertions, many of which are simply incorrect such as the claim that since Obama’s father was not a US Citizen, Obama could not possibly have been a natural born citizen even though the courts have ruled that children of aliens born in the US gain US citizenship by birth right.
Some other goodies:
Selective Services: Failed to register under his legal name Barry Soetoro. Thus the Selective Services registration signed by Barack Obama must be fraudulent.
There is nothing ‘this man’ (Obama) says which is ever true.
It comes to the point of treason.
And then the conspiracy again: “An interesting fact is that both Michelle and Barack Obama have job description positions listed with all major news agencies and news papers.”
American Citizenship By Taliesin Evans
Taliesin Evans, American Citizenship: And the Right of Suffrage in the United States Published by Tribune Print., 1892
FEDERAL CITIZENSHIP BY INHERITANCE.
Federal citizenship may be acquired by inheritance by virtue of the place of birth, irrespective of the status of the parents.
Birth within the dominion and jurisdiction of the United States creates citizenship of itself (4).
All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. Rev. Stats. U. S,, Sec. 1992.
Read More…
Obama Natural Born Citizen Flowchart
For sake of reality let’s accept that Obama was born to Stanley Ann Durham, a US citizen. So let’s walk through the possibilities
Indonesian law and dual citizenship
Once again Dr Conspiracy corrects the mistakes made by Berg and others when discussing Indonesian law.
The rather complicated Article 3 is of interest. It says that a child cannot acquire Indonesian citizenship if it would create dual citizenship unless the child is able to renounce said citizenship (which an American child is unable to do).
And another myth bites the dust. At this rate nothing much remains and the best hope for the nObama’s is to show that Obama was born in Kenya and that his parents were legally married. Of course, the fact that his Certification of Live Birth shows Honolulu as the city of birth, complicates matter ‘slightly’. But even the city of birth may not matter if Obama was born ‘out of wedlock’.
Game set and match.
Keyes v Bowen
| Case Number | 2008-80000096 Superior Court California Sacramento |
| Filing Date: | 11/13/2008 |
| Case Type: | Writ of Mandate |
| Case Title: | AMBASSADOR DR ALAN KEYES VS. CALIFORNIA SECRETARY OF STATE DEBRA BOWEN |
| Status: | Active |
History
- Nov, 13, 2008: Petition for write of mandate filed
- Jan 15, 2009: Deposition Subpoena filed
- Feb 11, 2009: Motion to quash filed
| Claim: There are other legal challenges before various state and federal courts regarding aspects of lost or dual citizenship concerning Senator Obama. Those challenges, in and of themselves, demonstrate Petitioners’ argument that reasonable doubt exists as to the eligibility of the Democratic Party’s nominee for President. |
| Reality: The existence of other ill informed legal challenges against Obama provide no foundation for the claim that there is a legal basis for this challenge. In fact, there is no reasonable doubt based on dual or lost citizenship as the caselaw seems quite straightforward here. A minor who gains dual citizenship does not forfeit his US natural born status as long as he indicated before he reaches adulthood to which country he owes allegiance. Since Barack Obama, before reaching adulthood had returned to the United States and enrolled in schools and other activities, for all practical purposes, Obama retained his legal citizenship status. |
Read More…
1952 Immigration and Nationality Act – Loss of Nationality
CHAPTER 3—LOSS OF NATIONALITY
LOSS OF NATIONALITY BY NATIVR-BORN OR NATURALIZED CITIZEN
SEC. 349. (a) From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by—
(1) obtaining naturalization in a foreign state upon his own application, upon an application filed in his behalf by a parent, guardian, or duly authorized agent, or through the naturalization of a parent having legal custody of such person : Provided, That nationality shall not be lost by any person under this section as the result of the naturalization of a parent or parents while such person is under the age of twenty-one years, or as the result of a naturalization obtained on behalf of a person under twenty-one years of age by a parent, guardian, or duly authorized agent, unless such person shall fail to enter the United States to establish a permanent residence prior to his twenty-fifth birthday : And provided further, That a person who shall have lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, may, within one year from the effective date of this Act, apply for a visa and for admission to the United States as a nonquota immigrant under the provisions of section 101 (a) (27) (E) ; or
Flawed Logic: Orly on Obama
On DefendOurFreedoms.US, Orly, who represented various cases against Obama and failed to pass “judicial scrutiny” ‘argues’:
If Obama’s unsealed records show, what we actually know, that his father was a foreign National and he was a Britiish National at birth (Kenya was a British colony) and he is an Indonesian citizen now and in the past, he cannot be a US president and needs to be removed from the White House ASAP. No bill, including hotly debated economic package is valid, if he is not legitimate.
In other words, the lawsuit to have Obama unseal his birth certificate is unnecessary and should focus instead on the arguments that because his father was a UK citizen or because he was adopted by an Indonesian step-father, that Obama cannot be a legitimate ‘natural born’ citizen. Obviously, Orly seems rather ill-informed about the case law regarding dual citizenship of minors which states that parents’ actions do not reflect on the birth right of their children. I hope to see some details from Orly on how she reached the conclusion that these are disqualifying acts? Especially recent court cases seem to be clear that the US birth right is hard to abandon and cannot be taken away except under very special circumstances.
Failed Lawsuits
- Lightfoot v Bowen California Supreme Court Application Denied – Dec 5 2008
- Lightfoot v Bowen US Supreme Court Application Denied – Jan 26 2009
Pending Lawsuits
- Keyes v Obama Superior Court Sacramento (update: Orly is no longer representing here)
Dual Citizenship
Myth: A minor loses his US citizenship when his parents move to a foreign country and accept that country’s citizenship.
Fact: A minor cannot abandon his citizenship until reaching adulthood when he elects US citizenship and returns to the US.
It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents’ origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority, he elects to retain that citizenship and to return to the United States to assume its duties.
Source: Perkins v. Elg, 307 U.S. 325 (1939)
In other words, being born to one or more non US parents does not automatically mean that the potential dual-citizenship invalidates the “natural born” status, as long as the child returns to the US on attaining majority.
Some have argued that Obama should have registered his decision, again that is not in line with the law which shows that the return to the United States is sufficient for maintaining US citizenship.
Examples of sites where myth(s) are perpetuated
- defendourfreedoms.us (last checked 02-12-2009)
Act of Congress of March 2,1907
Because of this conflict some nations have modified the rules so as to provide that children born of alien parents are subjects of the nation where born, but at majority have the right of election which national character they will take. The state department of our government has in some instances directed children born abroad of American parents, and residing at the place of birth, to exercise this election at majority. So that in Europe it is coming to be recognized generally that children born of foreign parents and residing in the land of their birth must at majority elect their allegiance. The rule does not prevail in the United States, except as regulated by the Act of Congress of March 2,1907, and Sec. 1993 Rev. Stat. 11.
Out of the contrary rules of jus sanguinius and jus soli at times arise cases of curious complications. Thus, a child of alien parents in whose country the jus sanguinius prevails, born in the United States, would be under the Fourteenth Amendment a citizen of the United States, and at the same time a subject of the same realm as the father. This matter sometimes arises when a young man of alien parentage is residing in the country of his father’s birth and desires to avoid military duty. Without further discussion it can only be said that the nations probably in time will adopt some uniform rule governing the citizenship of persons, born within the jurisdiction of one country, of parents who are citizens of another country.
This “dual allegiance” is now usually accommodated diplomatically by requiring the individual at majority to elect which nationality he will conserve. The Act of March 2, 1907, is for this purpose.
Immigration and Nationality Act, 8 U.S.C. § 1481(b)
The Immigration and Nationality Act states how a US citizen may lose his US citizenship
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—
In Berg v Obama, the plaintiff argued that
Whenever the loss of United States nationality is put in issue … , the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs … any act of expatriation … shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing~ by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
would place the burden on the defendent to show that he has not violated the requirements. However, the court ruled that the act clearly indicates that the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence and that the section discussing the voluntary nature of expatriation sets up rules of evidence which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government.
Source: Philip Berg v Barack Obama et al NO. 08-4083, decided October 24, 2008 (Motion to dismiss granted)
Kerchner v Obama – Doc 3 – Second Amended Complaint
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Charles F. Kerchner, Jr.,
Lowell T. Patterson
Darrell James LeNormand, and
Donald H. Nelsen, Jr.,
Plaintiffs,
v.
Barack Hussein Obama II, President Elect of the United States of America, President of the United States of America, and Individually, a/k/a Barry Soetoro; United States of America; United States Congress; United States Senate; United States House of Representatives; Richard B. Cheney, President of the Senate, Presiding Officer of Joint Session of Congress, Vice President of the United States and Individually; and Nancy Pelosi, Speaker of the House and Individually,
Defendants.
SECOND AMENDED VERIFIED COMPLAINT AND PETITION FOR EMERGENCY INJUNCTION, DECLARATORY RELIEF, MANDAMUS, AND QUO WARRANTO
Keyes v Obama – Doc 1 – Complaint
01/20/2009 COMPLAINT against Defendants Robert Mueller, Michael W Hager, Barack H Obama and Condoleeza Rice.(Filing fee $ 350). Filed by Plaintiffs Alan Keyes PhD, Wiley S Drake and Markham Robinson.(lwag) (lwag). (Entered: 01/23/2009)
01/20/2009 60 DAY Summons Issued re Complaint – (Discovery) 1 as to Defendants Robert Mueller, Michael W Hager, Barack H Obama and Condoleeza Rice. (lwag) (Entered: 01/23/2009)
CENTRAL DISTRICT OF CALIFORNIA
Santa Ana Division
Alan Keyes, PhD., Wiley S. Drake, and Markham Robinson,
Plaintiffs
v.
Barack H. Obama, a/k/a Barack H. Obama, II a/k/a Barry Obama, a/k/a Barry Soetoro; Condoleeza Rice, in her capacity as Secretary of State; Robert Mueller, in his capacity as Director of the Federal Bureau of Investigation; and Michael W. Hager, in his capacity as Acting Director, Office of Personnel Management; and DOES 1-100
Defendants.
Recent Comments