The Current INS Officially Recognizes A Delineation Between Natural-Born and Native-Born.

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:

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.)

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.

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