July 27, 2014 2 Comments
ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD
U.S. Department of State Foreign Affairs Manual Volume 7 Consular Affairs
7 FAM 1130 Page 3 of 69
ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT
(Office of Origin: CA/OCS/L)
7 FAM 1131.1-1 Federal Statutes (CT:CON-349; 12-13-2010)
Acquisition of U.S. citizenship by birth abroad to a U.S. citizen parent is
governed by Federal statutes. (1) Only insofar as Congress has provided in such
statutes, does the United States follow the traditionally Roman law principle of
“jus sanguinis” under which citizenship is acquired by descent (2.) (see 7 FAM 1111a(2)).
1.) Note reference to “a” citizen parent. Singular. That means the other parent was a foreigner. Together they produced a hybrid dual national of two nations.
2.) Don’t mis-read what that says. It refers only to a child of a mixed-nationality origin having only one American parent. By Congressional mandate, a child of a single American parent can be deemed to be an American by descent, by transmission or conveyance of U.S. citizenship through a blood relationship with a citizen parent.
Such citizenship is not a right but is a quasi-right, a semi-right, a partial-right, but not a natural right because by nature and its principle, all parents are alike. Same genus, same species, and usually the same breed. Without likeness, reproduction is impossible, almost, with exceptions of animals of the same genus but different species, like a donkey and a zebra, a donkey and a horse (resulting in a sterile hybrid: the mule).
The variations within the dog family are even greater, from tiny lap dogs to Great Danes, from Bulldogs to Greyhounds. But they are all dogs with nearly identical genes. In fact, one species was discovered to almost universally have identical genes; the Cheetah. They are all descendents of a few surviving pairs from long, long ago.
A parent born and raised as a member of a foreign nation and culture, having a foreign language, history, government, and law, cannot produce with an American a new natural American citizen child. It can only be half American, so extending citizenship to one who is only half a citizen by birth, is a benevolent consideration of the U.S. government, and many other governments as well, (but perhaps not most) depending on the gender of the foreign parents.
The statement that jus sanguinis recognition of citizenship is provided solely by congressional statute means that it is discretionary and not the consequence of natural descent which requires no statute. It is a kind of looking-the-other way and ignoring the foreign parent, and only making recognition of the American parent, the one with American blood that transmits U.S. citizenship to his or her child.
Such recognition of citizenship is a purely gray area since it is in the middle between being purely an American and purely a foreigner. So the choice of the government could go either way, but in the post-14th Amendment interpretation of the Wong Kim Ark case in 1898, the government has chosen in favor of the American parent and his or her child’s U.S membership.
Section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) gives the Secretary of State the responsibility for the administration and enforcement of all nationality laws relating to “the determination of nationality of a person not in the United States.”
Note: Not only the enforcement of all nationality “laws”, but also all official opinions of the U.S. Attorney General, -opinions about the law, but which are not law themselves, merely being federal policy based on his opinion of what the law or a court opinion means.
It is by just such an Attorney General opinion, set in place in 1898 by John Griggs (about the meaning of what the Supreme Court wrote in its Wong opinion) that Barack Obama is even considered to be a U.S. citizen. Without his opinion being followed, -or with it being different, Obama would have been considered to be purely a British-Kenyan citizen of the Commonwealth and Kenya because he was not born of legal permanent resident (domiciled) immigrants and thus was not born subject to the full sovereignty of Washington as the 14th Amendment requires.
Foreigners who are guests of the United States are not subject to its obligations as citizens and immigrants are. They have no obligation to serve in the United States military, and thus cannot be drafted nor required to register, -nor can they be charged with treason, -as can citizens and immigrants, because they, like foreign ambassadors and diplomats, are exempt under international law, the law of nations, treaties, and even moral law.
As continuing members of their own society and nation, -still subject to their own government, and non-members of American society, they are outside of and not subject to the authority that governs Americans and Green Card immigrants. Consequently, so is any son born to them while sojourning within our borders. He is subject to their authority, and through his father, to his foreign authority. Thus the second requirement of the 14th Amendment cannot be met by a child of any foreign guest. It is not born subject to the jurisdiction of the United States, and thus is not born as a citizen.
7 FAM 1131.2 Prerequisites for Transmitting U.S. Citizenship
Since 1790, there have been two prerequisites for transmitting U.S. citizenship to children born abroad:
At least one natural parent must have been a U.S. citizen when the child was born. The only exception is for a posthumous child.
[NOTE: That is either an ignorant mistake or it is a deliberate lie. In 1790, and for over a century after, any women who married an American became naturalized by marriage. That means she was no longer a foreigner when she had his child but was an American like and through him (a derivative citizen of the State of his citizenship). Similarly, if she was the American and she married a foreigner, she was no longer considered to be an American by many jurisdictions and authorities but as having adopted his nationality, -especially so if living abroad with him. So there is nothing in those naturalization acts about only one natural parent being an America. That is a falsehood.
Do you see a problem? If the very government itself is ignorant of history, how can the public be expected to not be wrong about many things since we all were raised in an ignorant age?]
The U.S. citizen parent(s) must have resided or been physically present in the United States for the time required by the law in effect when the child was born.
[Note: That is probably only true beginning in the 20th century, though possibly slightly earlier.]
7 FAM 1131.4 ~Blood Relationship Essential
7 FAM 1131.4-1 Establishing Blood Relationship
The laws on acquisition of U.S. citizenship through a parent have always contemplated the existence of a blood relationship between the child and the parent(s) (1.) through whom citizenship is claimed. It is not enough that the child is presumed to be the issue of the parents’ marriage by the laws of the jurisdiction where the child was born. Absent a blood relationship between the child and the parent on whose citizenship the child’s own claim is based, U.S. citizenship is not acquired. The burden of proving a claim to U.S. citizenship, including blood relationship and legal relationship, where applicable, is on the person making such claim.
1.) Note: Ignorance of the fundamental nature of nationality led the author to mistakenly use the plural “s” in parenthesis when such an error is actual heresy to a fundamental principle of American liberty. Why, you ask? Because of what is stated in that sentence at its very beginning. “The laws on acquisition of U.S. citizenship through a parent…”; -that is entirely accurate; what is inaccurate is that there are laws on the acquisition of citizenship when both parents are Americans who have been residents of the United States.
There are no such laws because foreigners are not involved, nor is foreign birth and domicile. Only American blood is involved, and it insures automatic citizenship without the involvement of government or laws. Natural citizenship is not “acquired” when it is transmitted by descent from American parents. American children of Americans are born being American citizens also, and their national membership is not “acquired” but is inescapable, unavoidable, pre-determined, and without need or permission of law.
What is government’s role when a child is born abroad of an American couple, both of whom were born in or lived in the U.S.? It is not to apply the law to the child since there is no law. It is merely to determine if the child is the natural child of its parents or not, and that is determined by whether or not it was born of solely American blood and no other. If it was not, then laws govern such a hybrid child who’s half foreign.
Applicants must meet different standards of proof of blood relationship depending on the circumstances of their birth:
The statutes do not specify a standard of proof for persons claiming birth in wedlock to a U.S. citizen parent or out of wedlock to an American mother.
The Department’s regulations also do not explicitly establish a standard of proof. The Department applies the general standard of a preponderance of the evidence. This standard means that the evidence of blood relationship
is of greater weight than the evidence to the contrary. It is credible and convincing and best accords with reason and probability. It does not depend on the volume of evidence presented. [It is a judgement call]
Children born in wedlock are generally presumed to be the issue of that marriage. However this presumption is not determinative in citizenship cases because an actual blood relationship to a U.S. citizen parent is required. If doubt arises that the citizen “parent” is related by blood to the child, the consular officer is expected to investigate carefully.
7 FAM 1131.6-1 Status Generally (TL:CON-68; 04-01-1998)
Persons born abroad who acquire U.S. citizenship at birth by statute generally have the same rights and are subject to the same obligations as citizens born in the United States who acquire citizenship pursuant to the 14th Amendment to the Constitution. One exception is that they may be subject to citizenship retention requirement.
NOTE: The Supreme Court has essentially gutted 80 years of Congress presuming it had authority over the citizenship of new Americans. It has none. They are equal to all other citizens, and hence no residency rules are constitutionally valid unless they are added as a requirement before and as part of the naturalization of foreigners. Once they become citizens, then Congress is out of the picture.
Don’t be deceived by the first sentence language: “Persons born abroad who acquire U.S. citizenship at birth by statute generally…” Such persons are only half American and thus their citizenship is not by blood alone, not natural nor automatic, but governed by naturalization statute.
They are not citizens by birth, but merely citizens at/from/ or upon birth. In a very real sense, they are naturalized at birth by statute. But the children of American couples are not. They are not considered to be natural-ized since they are natural by birth.
7 FAM 1131.6-2 Eligibility for Presidency
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.
Section 1, Article II, of the Constitution states, in relevant part that “No Person except a natural born Citizen…shall be eligible for the Office of President.”
The Constitution does not define “natural born”. The “Act to establish an Uniform Rule of Naturalization”, enacted March 26, 1790, (1 Stat. 103,104) provided that, “…the children of citizens of the United States, that may be born … 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.”
d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.
NOTE: That is the most ignorant statement of all. The men who wrote the first naturalization statute (in the first Congress of the new United States ever elected) included many of the men who founded the nation, and wrote the Constitution, along with the Bill of Rights. They knew exactly what they were writing and why. They knew that they had failed in the Constitution to address American children not born in America, and so they took the first opportunity to correct that oversight in order to protect and assure their right to seek election to serve as President.
The author failed to explain what being “a natural born citizen pursuant to a statute” means, because it means nothing. The only thing that that term is related to in all of American social and political life is the presidency, and it alone (with the arcane, and the then non-existent role of guarding the President and having access to and control over American nuclear weapons. Those born of foreigners aren’t welcome to apply, and will probably be excluded by an unwritten rule if they do. Can you imagine the son of a faithful and extremely devote Islamic Saudi father and an American Muslim mother being entrusted with command of an American nuclear submarine, including its 100+ nuclear weapons? There might be a problem regarding trust and allegiance).
7 FAM 1131.6-3 Not Citizens by “Naturalization”
Section 101(a)(23) INA (8 U.S.C. 1101(a)(23)) provides that the term “naturalization” means “the conferring of nationality of a state upon a person after birth, by any means whatsoever.” Persons who acquire U.S. citizenship at birth by birth abroad to a U.S. citizen parent or parents who meet the applicable statutory transmission requirements are not considered citizens by naturalization.
NOTE: The author again mistakenly conflated those born of Americans with those born of mixed-nationality parentage, with one parent being a foreigner. Those born of Americans are not naturalized because they are born being natural American citizens, but those born with a foreign parent are not, and thus fall under Congressional statute, as previous shared by the author, so it is absurd to claim that they too are natural citizens by implication, and not naturalized at birth.
The difference between the two is about whether or not someone like Barack Obama is constitutionally eligible to be President or is definitely not eligible. That difference would affect only one person in 300 million, but that one person could greatly effect the lives of those 300 million, so his eligibility is not a small matter, nor is this point on which it would be based.
If it can be claimed and believed that a foreign-born child of an Adolph Hitler (having an American mother) is not subject to any naturalization statute and is therefore not considered a citizen by naturalization, then such a foreign threat to America would by extension be considered eligible to be President because there is no other relevant form of citizenship besides natural citizenship except actual adult naturalization. Which would mean he would be considered to be a natural born citizen, -which would be insane.
No child born of foreign blood is a natural anything unless it is born of purely foreign blood, then it is a full natural citizen of its foreign parents’ nation, -not the United States.
7 FAM 1131.7 Citizenship Retention Requirements
Persons who acquired U.S. citizenship by birth abroad were not required to take any affirmative action to keep their citizenship until May 24, 1934, when a new law imposed retention requirements on persons born abroad on or after that date to one U.S. citizen parent and one alien parent.
Retention requirements continued in effect until October 10, 1978, when section 301(b) INA was repealed. [following multiple Supreme Court holdings] Because the repeal was prospective in application, it did not benefit persons born on or after May 24, 1934, and before October 10, 1952 (see 7 FAM 1100 Appendix L).
Persons born abroad on or after October 10, 1952, are not subject to any conditions beyond those that apply to all citizens.
7 FAM 1132.4 February 10, 1855
On this date, Congress enacted “An Act to Secure the Right of Citizenship to Children of Citizens of the United States Born Out of the Limits Thereof,” (10 Stat.6 04).
It stated, in part, that: “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and
considered and are hereby declared to be citizens of the United States:
Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.”
NOTE: Nationality was membership that was acquired by descent from the head of the family; the nationality of the entire family was that of he who was its head, his wife included. The nationality of his American children was NOT being established by the wording of that statute; -rather, it was being protected and declared for the ignorant, just as the rights of the States were meant to be protected by the words of the 9th Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retain by The People.” That is protection language ordering the federal government how to act and even think (“construed”, “disparage”) regarding the inviolable rights of the State republics and the American people.
What everyone, including the author, fails to ask is “why are they so strongly declared to be that which they are by birth?” Because boneheads have always occupied all levels of government. Nepotism and favoritism have always been a factor in hiring, and that does not result in the most qualified, nor intelligent people holding important positions, including authority over American ports, and the people allowed to enter them.
But there is another class of possibly boneheaded officials, and they are the ones in the States in charge of which names are allowed on the State ballots for the election of the President.
Congress, with that language, protect their right to be recognized as American citizens, but that fact is not the end of the story, because there still remains the extremely important question of “what sort of American citizen are they exactly?” The answer determines who is eligible to be President, and who is barred for life.
Are the American children who didn’t enter the world somewhere within U.S. borders really not qualified because of a circumstance that they, and perhaps their mother, had no control over? What if she was the former first lady, or second lady (the VP’s wife) and was nine months pregnant and hurrying in an ambulance on the Canadian side of Niagara Falls to get across the border to an American hospital but gave birth in the ambulance before crossing? Why would those brief moments, and that insignificant circumstance affect the child’s right (precluding it) for the rest of its life regarding service as the U.S. President? Were the founders really dumb enough to endorse such a system of nationality assignment, -one so insanely unnatural? Or did they reject that insane British system and embrace the “Law of Nature and Nature’s God”?
So the heart of the statue fails to answer those questions, and it failed to do so for a very strong reason, and that reason was the huge number of children born in America to immigrants before they became naturalized citizens. If the statute had declared those foreign-born American children to be the natural citizens that they were by nature, and had made it plain that all persons who are not citizens by naturalization of any form are natural citizens by birth, then that would mean that all of those native-born and raised American sons could never serve their country as its President regardless of how patriotic, devoted, and even heroic they might be.
Needless to say, to state such a thing in the face of a large immigrant voting population that would strongly oppose it, would not be politically expedient; meaning “wise”. It would not help any politician’s career to affirm and declare a fundamental principle of nature, which applies to one’s political nature so no one sought to attempt to do so since they would find them self attempting to swim upstream. After all, the odds of a foreign-born American ever being in the running for the White House was very, very slim since their numbers were very, very small (percentage wise) so why stick your neck out for a “mere” principle when there might never be anyone to even benefit from your sacrifice? That is why all of the Congresses after the first resorted to defending only the undefined citizenship of Americas born abroad, -but not their natural citizenship and eligibility to be President. Only the first Congress had the spine to do that, -or the character.
Note the error of “-rights of citizenship shall not descend…”. It was a serious mistake to add an “s” to “the right of citizenship”. “Rights” are not citizenship, and citizenship is more than “rights”, but all of the dunderheads that voted for the bill with that error in it, didn’t really care very much about the subject or they would have spotted it and changed it. The same stupid oversight happened again, or continued on, in the 1934 naturalization law re-write. Take note from http://americansabroad.org/files/3013/3478/0295/18-04-2012_1318_971.pdf ; ~page 5:
THE “CITIZENSHIP ACT OF 1934”:On 24 May, Congress makes a major change to the“citizenship law” to now enable U.S. citizen mothers to also transmit U.S. citizenship at birth abroad. But for the first time the law now also creates a new burden by imposing a mandatory “subsequent five year residence requirement” in the United States, prior to reaching age eighteen, and an “oath of allegiance requirement” within six months of the child’s twenty-first birthday, for any child born abroad to parents, one of whom is an alien.The new law states:•“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 birthof 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.” (Section 1, 48 Stat. 797
The Act of February 10, 1855 did not repeal the Act of April 14, 1802
Note: The Act of 1802, like that of 1795, and 1790, stated that children of persons who became naturalized citizens, if dwelling in the U.S., were also citizens (through their blood relationship with a father who had become a new American). That meant two significant things. 1. It they had left the U.S. or never emigrated with their parents, then they were not deemed to be Americans since they had chosen to remain foreigners. 2. The children of foreign fathers, prior to their naturalization, were foreigners also just like their father. The acts made no mention of nor exception for children born in America. From the national perspective, it was not a matter of where they were born, but to whom they were born.
But from the State perspective, it was generally the opposite! A divergence, a dichotomy, a clash of perspectives; with the States continuing to allow the age-old common law citizenship for all born within their borders, while the national government rejected British common law nationality determination and only embraced natural law, -rejecting as unAmerican the British common law custom and tradition of native-birth based life-long nationality assignment because it was contaminated with dual nationality which meant dual-allegiance and obligation, along with shared sovereignty, -and no nation at that point was interested in nor agreeable to sharing sovereignty with a foreign power.
But that was not a concern of the States since national sovereignty was a federal issue, -not an intra-State issue. They didn’t care about an immigrant’s foreign government. They were future citizens of the State, and so were their native-born children, so by the age-old common law, they were deemed to be citizens from birth. Not so in the eyes of the national government. They were aliens from birth, -just like their father whom they took after. The only in-country consequence of the federal position was in regard to who was eligible to serve as President. Nothing else, -since all citizens are equal (with that lone exception).
7 FAM 1132.6 May 24, 1934
Section 1993 (48 Stat. 797) was amended by the Act of May 24, 1934, to permit American women to transmit U.S. citizenship to their children born abroad, regardless of the father’s citizenship. [note: that was over a decade after the passage of the 19th Amendment which declared that the right to vote shall not be abridged on account of gender.]
The amended Section 1993 was in effect from May 24, 1934, at noon Eastern Standard Time until January 12, 1941. The text of the amended law is shown in 7 FAM 1135.6-1. It was repealed, and superseded by the Nationality Act of 1940.
7 FAM 1133.3 Residence and Physical Presence Requirement
The INA specifies that residence or a period of physical presence in the United
States is required for transmitting U.S. citizenship on or after December 24, 1952.
Requirements of Section 301 INA [Immigration and Naturalization Act]
A child born abroad to two U.S. citizens acquires U.S. citizenship at birth if, before the child’s birth, one of the parents had a residence in the United States or its outlying possessions. No specific period of residence is required. See 7 FAM 1133.5 for specific guidance for determining acquisition of U.S. citizenship by children born abroad to two U.S. citizen parents under INA 301(c)
Note: If neither American parent had ever lived in the United States, then that would mean that they were both foreign-born and raised, making them more foreign than American, so if they had a child, it would be viewed as fully foreign and citizenship would not descend to it, as had been the law going back centuries in England.
c. Birth to Citizen and Alien: Unlike section 301(d), section 301(g)* does not require a continuity of stay. However, on the whole, its requirements for transmitting U.S. citizenship to the foreign-born child of a U.S. citizen and an alien are much more stringent: for children born prior to November 14, 1986, the U.S. citizen parent must have had ten years of physical presence, five of which were after reaching age 14, [Obama's mother fell short by about 4 months so her citizenship could not be conveyed to her son if born abroad.] in the United States or its outlying possessions; for children born on or after November 14, 1986, to transmit citizenship the U.S. citizen parent needs five years of physical presence, two of which were after age 14, in the United States or one of its possessions. * (formerly section 301(a)(7) INA)
[Note: liberalizing by shortening the residency requirement so dramatically could have served only one political purpose: allowing more children to qualify for citizenship, and thus eligibility to receive U.S. welfare benefits, which would benefit the Democrat party which was and is viewed as the generous provider of welfare to one and all, and therefore the natural recipient of the parent's vote.]
7 FAM 1133.3-3 What Constitutes U.S. Physical Presence:
a. Current Practice
(1) The Immigration and Nationality Act does not define “physical presence,” but the Department interprets it as actual bodily presence. Any time spent in the United States or its outlying possessions, even without maintaining a
U.S. residence, may be counted toward the required physical presence.
Naturalized citizens may count any time they spent in the United States or its outlying possessions both before and after being naturalized, regardless of their status. Even citizens who, prior to lawful entry and naturalization, had spent time in the United States illegally can include that time. !!!! WHY??? [More votes for Democrats.]
7 FAM 1133.5
Guidance for Determining Acquisition of U.S. Citizenship by Children Born Abroad to Two U.S. Citizen Parents Under INA 301(c)
NOTE: This refers to foreign-born children of citizens who were also born abroad. Not to children of native-born citizens. This language and the principle behind it are crucial to understand the nature of 14th Amendment citizenship, subjection, and jurisdiction of the United States government. It requires that a person be born subject to the full authority of the American government. When it was written, that did not include children of foreigners since they were born subject to the jurisdiction of their foreign father, who was subject to his own government since he was not an American, -but in the eyes of the States his child was an American, regardless of the view and law of the federal government.
The Supreme Court issued the opinion in the 1898 Wong case that native-born children of domiciled, legal permanent-resident immigrants are born with U.S. citizenship. It said not a word about children born of non-immigrant aliens, (-those present on a tourist or guest Visa and not a Green Card). By the real meaning of the 14th Amendment, as well as their very limited opinion in the Wong case, permanent residency was paramount to the presumption that United States citizenship is conveyed to children of aliens. What follows illuminates that fact.
a. The concept of residence is inherently more complex than the more literal concept of physical presence. While no specific period of residence is mentioned in the statute, Congress’ use of the term “residence” requires a close examination, on a case by case basis, of the facts related to one’s stay in the United States to determine if it falls within the INA’s definition of “residence.”
Residence is not determined solely by the length of time one spends in a place, [Obama's father had a one year Visa, but received three extensions to complete his education and receive a degree, -then he was ordered to leave the country; he was never considered to be a resident of the United States.] but also takes into account the nature and quality of the person’s connection to the place.
This is a very fact-specific test. However, at all times and in all cases, residence involves the connection to a specific physical place. [Obama Sr. had no connection to America as he was purely Kenyan] Residence is not a state of mind that travels with a person. Department guidance clearly states that residence is more than a temporary presence and that visits to the United States are insufficient to establish residency for the purposes of citizenship transmission under INA 301(c). See 7 FAM 1134.3-2.
Section 101(a)(33) of the INA defines residence as the person’s “place of general abode [meaning] his principal actual dwelling place in fact, without regard to intent.” Under this definition, residence is much more than an address –e.g., a Post Office box is not a place of general abode or a dwelling place — it is one’s principal actual dwelling place. A person has a different relationship to his or her residence than to any other place. [a temporary college dorm does not constitute one's permanent residence; their home does.]
For example, someone who rents a vacation home in California for a month in the summer has not established a “principal actual dwelling place,” as that term is used in Section 101(a)(33). Similarly, someone who resides along the border in Mexico or Canada, but works each day in the United States cannot use his or her workplace to establish a residence. In both examples, however, the person could establish physical presence. Some examples of what constitutes a “residence” versus “physical presence” are described below. [excised]
Owning or renting property in the United States is not a pre-condition for proving a residence. Similarly, owning or renting property outside of the United States is not necessarily incompatible with having a residence in the United States. Where a person owns or rents property is certainly relevant information that could help a consular officer make a determination of whether a person has or has not had a residence in a particular place, but other evidence is important as well –e.g., evidence that shows that the person actually lived in that property and conducted normal daily activities of life there. In other words, evidence that shows it is one’s principal actual dwelling place.
Birth in the United States is usually sufficient to satisfy the residence requirement of Section 301(c) of the INA. For example, where a person is born abroad in wedlock to two U.S. citizen parents, and one parent was born in the United States, that U.S. citizen parent will meet the “residence” requirement as long as evidence is presented that demonstrates that the parent’s [foreign-born] mother was not merely transiting through the United States at the time of that parent’s birth. We note that a long form birth certificate usually includes the mother’s address, which normally suffices to show that the mother was not transiting through the United States.
While the definition of residence is not dependent on a specific time period in the United States, the longer the duration of a person’s stay in a particular place in the United States (e.g., six months or more), the more likely it is that that place can be characterized as the person’s residence. On the other hand, if the stay at a place in the United States was relatively brief (e.g., a few months or less), then in order for that place to be considered a “residence” additional evidence may be required to show why the stay, though brief, was other than a temporary visit. [Note: a long visit can also be temporary if it is predicated originally as a limited visit (a 1-year student Visa, for example).]
The concept of “residence” should not be confused with the term “physical presence” which is used elsewhere in the INA as the test for transmitting citizenship, and which is a more literal concept that may be easier to apply. Section 301(g), for example, requires that when only one parent is a U.S. citizen, that citizen parent must have a specific duration of physical presence — not residence — in the United States prior to the birth of the child in order to transmit U.S. citizenship to the child.
Unlike in Section 301(g), in Section 301(c), Congress chose to use the term “residence,” and not set a time requirement. The rationale being that the nature of a residence presupposes the sort of relationship to a place that mere physical presence does not.
[Note: Obama Sr. had no relationship to the United States, and his clearly expressed intent was to return home to Kenya after graduation, -to be part of his soon to be free country and possibly its government.]
h. One important distinction between “physical presence” and a “residence” is the way that we consider the time spent in the United States in evaluating whether the terms are met. The time spent in a “residence” is time spent in that one particular place, not time spent in the United States overall. On the other hand, when computing “physical presence,” we consider any time a person has spent anywhere in the United States to count towards “physical presence.”
Thus, if a person spent a year traveling around the United States on a cross-country tour, and slept in a different hotel every week for a year, we would find that he was physically present in the United States for a year, but we could not find that he had a residence in the United States unless there was other evidence that supported the conclusion that one of the places where the person spent time was that person’s “principal actual dwelling place.” The United States is not a person’s dwelling place.
[Note: Obama Sr. was not domiciled in the United States since he had a family and home back in Kenya, to whom and to which he intended to return, so his principle abode, dwelling place, or permanent residence was in Kenya, not America. That means his son did not fit the requirement of the 14th Amendment since his father was never an immigrant and remained subject to his own foreign government, (not the United States) as was stated openly on Obama’s own campaign website; he being subject to the British Nationality of 1948, “as were his children“, (!!!) -including one supposedly born in Hawaii.
i. Examples of documents that can help demonstrate a residence include, but are not limited to, a combination of some of the following: property rental leases and payment receipts, deeds, utility bills, property tax records, automobile registrations, professional licenses, employment records or information, income tax records, stamped school transcripts, military records, income records, including W-2 salary forms, and vaccination and medical records.
[Note: they can "help" but they are not determinative. Principle is what is determinative. Real connection, "relationship", roots, attachments, are what determines if one is truly a member of American society, or merely a temporary transplant. In the case of men, a more absolute test exists, and it is whether or not one is subject to military conscription. Temporary guests of the US government are not subject to induction into the United States military. They are exempt because they are not members of American society and thus owe it no debt of allegiance nor service, unlike citizens and immigrants.]
NOTE: This section deals with what can be called Provisional Citizenship:
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.
7 FAM 1135.2 Residence Requirement for Transmitting U.S. Citizenship Before January 13, 1941
The aim of the residence requirements of Section 1993, R.S., and of earlier laws was to prevent the residence abroad of successive generations of persons claiming the privileges of U.S. citizenship while evading its duties.
No citizenship law before the Nationality Act of 1940 explained what was meant by “resided in the United States” or when the parent’s residence in the United States must have occurred.
7 FAM 1135.3-2 To American Mother
In about 1912, the Department began to hold that a child born out of wedlock to a U.S. citizen mother (before May 24, 1934), acquired U.S. citizenship through the mother if she previously had resided in the United States. It was considered [an opinion] that in the absence of a legally recognized father, the mother, as the sole parent, would have the rights normally attributed to a U.S. citizen father [as head of her "family"]. This also avoided statelessness for the child. [quite reasonable]
This view was overruled in 1939 by the Attorney General who stated that in such cases Section 1993, R.S., must be held to preclude transmission of citizenship because Section 1993 R.S., as originally enacted, did not permit women to transmit citizenship (39 Op. Atty. Gen. 290).
The Attorney General, who recognized the harshness inherent in his holding, expressed hope that legislative relief could be given retroactively. This was done in section 205 NA (see 7 FAM 1134.5-4)
NOTE: That situation provides unmistakeable evidence of the authority of the Attorney General when it came to opinions regarding the meaning of nationality statutes. It was his opinion as legal chief executive of the executive branch which determined what “the law of the land” was. If his opinion was faulty, flawed, erroneous, or illogical, it nevertheless stood as federal policy that all officers of the government with authority in a given area must follow. One can say that his legal opinion is or was the “opinion of the land” but not the actual law of the land, since it is what Congress actually wrote, or what the Supreme Court actually wrote as their opinion regarding congressional statutes or the Constitution.
Barack Obama is considered to be a U.S. citizen based solely and entirely on just such an opinion of an Attorney General, -A.G. John Griggs to be specific, although it may have never been put into a formal statement or “Interpretation”. It nevertheless was adopted by the foreign-affairs consuls world-wide, and it is all that governs the presumption that Barack Obama is an American citizen.
He is not a citizen by any law, nor by the 14ht Amendment, nor by the Supreme Courts opinion in the Wong Kim Ark case which construed, by the court’s opinion, what the 14th Amendment citizenship clause means. They stated that Wong was a citizen from birth because he was born of domiciled Chinese immigrants engaged in business in the United States. That’s all. But that was not enough for that Attorney General, who on his own non-authority expanded it to include all children born of all foreigners in America except those of foreign ambassadors. Talk about a gigantic leap!
Well guess what…. -that opinion still stands as the brain-dead policy of the United States to this day! It is totally entrenched into American nationality views as being the actual “law of the land” when it is nothing more than an illegitimate opinion of an unelected man who had no authority to make his own law, nor to rewrite the 14th Amendment, nor the opinion of the Supreme Court, but who did it anyway. And because he did it, Barack Obama as president was made possible because everyone is under the misconception that native-birth is all that is required to obtain citizenship, and worse still, that U.S. citizenship from birth is all that is required to be eligible to be President, -being ignorant of the fact, as was I, that he must be a natural born citizen, -not simply any native-born citizen.
7 FAM 1135.7-2 To American Mother
On May 10, 1939, the Attorney General indicated (39 Op. Atty. Gen. 290) that it was not clear that children born abroad out of wedlock to American women acquired U.S. citizenship and that new legislation was desirable to clarify their status. However, the Department and the Immigration and Naturalization Service have held administratively that children born out of wedlock to American women while Section 1993 R.S., as amended, was in effect acquired U.S. citizenship at birth if their mothers previously had resided in the United States (4 I. & N. Dec. 440 (1951)).
[Note: Since there was no law governing that situation, and response to it had to be made by the State Department and the INS, it was left up to the Attorney General or the INS to come up with a policy to follow, -one that would have the force of law, since it would be enforced, but which would not have the real authority of real law. It is by just such self-determined executive federal authority that Obama is considered to be an American citizen.
That determination is outside of any law of Congress, -outside of the 14th Amendment, and outside of the Wong opinion of the high court. It instead exists and stands alone as pure administrative fiat based on nothing whatsoever other than a form of the dog returning to its own vomit of British imperial common law custom.
By that custom, abhorred by the federal government, every soul born within the King’s dominion was claimed as his subject for life, -with no option to decline subjection to him and become a citizen of another nation. American rejection of that British rule was the basis of the American revolution. The American colonist, -the founders in particular, were through with being his subjects for life, and would form their own nation and governments to better serve the cause of their liberty and security.
7 FAM 1135.8 Retention of U.S. Citizenship Acquired Under Section 1993 R.S., As Amended by Act of May 24, 1934
When it amended Sec 1993 R.S. to give women the right to transmit U.S. citizenship to their foreign-born children, Congress was concerned that a child with one citizen and one alien parent might have divided loyalties, particularly if the father was an alien through whom the child had acquired foreign nationality.
To reduce conflicting ties of allegiance and to ensure that foreign-born children would regard themselves as Americans, Section 1993 R.S., as amended, required such children to reside in the United States for at least 5 years before reaching age 18 and to take an oath of allegiance to the United States within 6 months after reaching age 21 or forfeit their citizenship.
b. [Provisional citizenship]
The retention requirements did not apply if both parents were U.S. citizens or if the child had been born out of wedlock to a U.S. citizen woman. In such cases, it was felt that foreign influences and ties would be less likely to occur.
NOTE: The circumstance of a child born to an American mother and an alien father is the same wherever the child is born if the father is not an immigrant member of American society but is a continuing member of his own society, and country and nation because native-birth is irrelevant to how such a child will be raised.
There is no requirement that mother and father and child live in the United States to prevent attachments to the father’s foreign nation if the child was born in the U.S., even though there should be the same sort of requirement as for a child not born within U.S. borders since they both could be raised in identical circumstances and develop into loyal citizens of a foreign nation with an un-American view of the rights of government by being raised and acculturated there.
So the issue really is not where a child was born, but to whom it was born and where was it raised, but for the native-born, that second question falls between the cracks of American nationality law, completely overlook and unaddressed. It’s a flaw that did not exist until citizenship by descent was reassigned from strictly flowing from the father to the family, and became ascribed to the wife and mother as well. Previously a child such as Barack Obama was (for over half of American history) considered to have only the nationality of the father, which made him a foreigner as well. Everyone needs to ask how a child who for such a long period, from the very founding of the nation, who was an alien during all of that period in the view of the federal government, could be considered now to be a natural born citizen. Indeed, how?
Plus, -if Obama had been born 40 years earlier, and the Naturalization Act of 1907 had not been repealed 15 years later, Obama’s mother would have lost her U.S. citizenship because of her marriage to an alien (regaining only after their divorce) and he son would not have been perceived as being a dual citizen since neither parent would have been an American, descent would have been solely through his father, and the 14th Amendment would not have applied due to birth to a transient alien and not a domiciled immigrant. So it appears incontrovertible, that from any angle, Obama not only was nothing like a natural born citizen, but he was not even a United States citizen at all.
by Adrien Nash July 2014 obama–nation.com