Posted on 02/05/2016 8:22:26 PM PST by kathsua
And I am not going to get into a discussion over what the courts say. They can be all over the board. The only court issue that would matter is what the courts would say right now about Cruz. ...I can't produce any evidence, beyond the fact that the 1790 Act was repealed and replaced by the same people who wrote it (removing the words "natural born" from the naturalization act), that tends to show that there were founders who strongly opposed the first naturalization act on the grounds that it was unconstitutional.Case law is significant but not more significant than the founders' intent which plainly was that natural born citizenship is within the purview of Congress in certain cases ...
If anyone can prove that there were founders who strongly opposed the first naturalization act on the grounds that it was unconstitutional, that would merit consideration.
More particularly, the court cases are no help under your criteria for consideration, because none of the court cases tend to show there were founders who strongly opposed the first naturalization act on the grounds that it was unconstitutional.
The case of Rogers v. Bellei, 401 U.S. 815 (1971) follows a birth pattern similar to Cruz's. US citizen mother, alien father, birth abroad, birth in wedlock. All 9 justices agree that Mr. Bellei (a specific person) was naturalized.
However, taking your criteria literally, the Bellei case sheds no light, first because it doesn't tend to show there were founders who strongly opposed the first naturalization act on the grounds that it was unconstitutional; and second because it doesn't use the phrase "not a natural born citizen."
Most people agree that a naturalized citizen cannot be a natural born citizen, and for those people, a finding that a person is, constitutionally speaking, a naturalized citizen, precludes finding that person to be a natural born citizen. But I do not assume that you agree with this.
I know of and have recently studied seven other (six heard by SCOTUS, one in the 5th Circuit) cases that touch on the subject, invariably operating from the premise that the subject of the lawsuit is or could be a naturalized citizen. The cases where the person is not found to be a naturalized citizen, find the person to be an alien.
Given the factual basis for the cases, I figure that at least several hundred, if not several thousand cases are handled each year, using the same principle of law. The principle of "naturalization" has a pivotal role in deportation cases. Once a higher court decides an issue, that precedent is used many times over in lower courts of law and administrative agencies.
Alas, none of the cases satisfy your criteria for being considered, because none tend to show there were founders who strongly opposed the first naturalization act on the grounds that it was unconstitutional.
That said, I think your criteria for consideration are blinding you to how the law views citizenship of those born abroad. The cases are very informative, and completely uniform on the assignment of "naturalized" to a birth abroad, even across majority and dissent.
If one applies Vattel, this outcome is precluded.
Vattel: The Law of Nations: Book I
S:215. Children of citizens born in a foreign country.It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (S:212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say "of itself," for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.
Vattel notes other potential complications, for example in S:214 ...
Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
[[Case law views that statute as a naturalization statute, despite the fact that it contains the phrase “natural born citizen.”]]
if you ARE REFERRIGN TO THE bELLEI CASE AS THE CASE LAW- BLACKMUN ACTUALLY STATED THAT A CITIZEN CAN LOSE HTEIR CITIZENSHIP (srry cps lock) IF they don’t maintain it voluntarily- A person can lose their citizenship IF they ‘voluntarily’ forfeit their citizenship- ie treason, not meeting requirements- etc- Blackmun indicated that congress does have the right to rescind citizenship if requirements aren’t met or a citizen forfeits their citizenship via statutes enacted by congress-This was the logic used in deciding the Bellei case- The dissenting judges didn’t agree- and gave various reasons for their arguments- but this was what was used along with the now rescinded naturalization act used at the time- the claim that meeting requirements automatically makes one ‘naturalized via statute’ simply isn’t true- [[That all of those facts need to be proved is evident not only on review of the naturalization statutes,]]
[[In order to demonstrate that the child comes within 8 USC 1401, certain facts need to be proved.]]
In order to prove one is born on soil, one needs to provide evidence too- no birth certificate, no citizenship at birth-
[[Citizenship retention requirements have no effect on the source of citizenship in the first place]]
“MR. JUSTICE BLACKMUN delivered the opinion of the Court.
Under constitutional challenge here, primarily on Fifth Amendment due process grounds, but also on Fourteenth Amendment grounds, is § 301(b) of the Immigration and Nationality Act of June 27, 1952, 66 Stat. 236, 8 U.S.C.§ 1401(b).
Section 301(a) of the Act, 8 U.S.C. § 1401(a), defines those persons who “shall be nationals and citizens of the United States at birth.” Paragraph (7) of § 301(a) includes in that definition a person born abroad “of parents one of whom is an alien, and the other a citizen of the United States” who has met specified conditions of residence in this country. Section 301(b), however, provides that one who is a citizen at birth under § 301(a)(7) shall lose his citizenship unless, after age 14 and before age 28, he shall come to the United States and be physically present here continuously for at least five years.”
https://supreme.justia.com/cases/federal/us/401/815/case.html
The logic by Blackmun (whether right or wrong- it’s brought up here because it is this opinion, as well as the naturalization act in effect at the time, which formed the verdict In the Bellei case) being that a person who does not meet the requirements of statute forfeit their citizenship voluntarily , or when a citizen acted in a manner to imply an intent to give up citizenship
[[Congress is empowered by the Constitution to ‘establish an uniform Rule of Naturalization,’ Art. I, S: 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen]]
While that is true, that only had to do with naturalization of a person, not with citizenship at birth- which is a separate issue-
Since the Bellei case, in a 1980 case, Vance v. Terrazas[83]—the Supreme Court ruled that a person needs to do more than just ‘imply that they intended to forfeit citizenship’ (by not meeting congressional requirements at that time), an that courts couldn’t simply infer voluntary forfeiture based on acts performeded by citizen which violated requirements designated by Congress
The Afroyim and Terrazas case made it much harder to lose citizenship by not meeting requirements meant to retain citizenship set forth by congress, and subsequent cases have reinforced this idea further
The Bellei case was a case which determined that jus sanguinis citizenship could be rescinded IF the person did not meet requirements- Blackmun found that congress did have the right to impose requirements- later cases have since basically rescinded that finding
[[At Bellei’s birth, he was a citizen by operation of a statute.]]
He was a citizen jus sanguinis
[[Bellei got his citizenship from operation of an Act of Congress.]]
Where di the court finds that in the case? The whole controversy over the case was that jus sanguinis citizenship had been violated as evidenced by the dissenting opinions-
[[and noticing that Bellei was stripped of his citizenship by the same Act of Congress that gave him his citizenship, it follows that Bellei cannot have been natural born.]]
Except that the act which found him ‘ineligible’ has since been repealed, and the opinion of those who found him ineligible has since been undermined by recent cases
[[What you are rejecting is the case law.]]
actually I’m pointing to other case law which seem to undo what was found in Bellei case
[[The U.S. Supreme Court has recognized the power of Congress to specify conduct that constitutes expatriation, but the right to citizenship is so substantial that such actions must be closely related to a conspicuous movement of allegiance away from the United States. Although some courts have ruled that Congress never is empowered to deprive the native born of citizenship, this view is not in accordance with current law.
Conviction of a crime can result in a partial deprivation of rights of citizenship. Prior to the twentieth century under English and American Common Law, convicts actually lost their citizenship, which was known in some jurisdictions as civil death. Today, however, only some rights are divested, even if the applicable law is called “loss of citizenship.”
A loss of citizenship can occur by serving in the military of another nation; serving as a public official in a foreign country that requires an oath of allegiance to that country; and attempting to overthrow the U.S. government, which is established by a conviction for the crime.
Conduct that might be construed as a renunciation of citizenship sometimes is insufficient to prove voluntary expatriation. If a person merely enjoys the benefits that are available in another country, the surrender of his or her U.S. citizenship is not necessarily established.]]
http://legal-dictionary.thefreedictionary.com/American+citizenship
Some say congress can’t pass laws that take citizenship away- this is untrue- if people violate statutes enacted by congress they can lose their citizenship both NC and naturalized citizenship- if people show they no longer wish citizenship by performing specific acts, they lose citizenship- to suggest that statutes automatically confer a process of naturalization isn’t true, and the issue of expatriation shows that the supreme court does allow congress the right to impose requirements via statutes on all citizens which they must satisfy
some In this thread have asked about a case where a child is born over seas, of a us citizen mother after meeting requirements for citizenship here (ie: mother is citizen) and question where that child’s allegiance lies (they cited an example If I recall of a child going to Saudi Arabia, living with foreign father, but who’s mother was a us citizen) the fact that someone lives I n another country has no bearing on their citizenship if they are a US citizen because simply living abroad does not automatically mean devotion or allegiance to the other country- only when steps are taken by the child that show he or she is willingly giving up citizenship can they forfeit their citizenship status in this country -
Any citizen has a responsibility, via statute of congress, (which has changed many times down through the ages) to maintain their citizenship
That certainly held true in the Bellei case, didn't it?
-- In order to prove one is born on soil, one needs to provide evidence too- no birth certificate, no citizenship at birth- --
Much discussion has centered on your ...
1409 has only to do with a child of a foreign mother, who resides with a father- they are the ones who must apply after birth- at birth and by birth do not-
... which you still haven't resolved yourself, but from your muddled responses, I think you were claiming that some children born abroad don't have to prove anything to get their citizenship.
Do you still maintain that "at birth and by birth do not [have to apply]"?
The burden of production of evidence (proof) for a person born abroad is remarkably different from producing only a birth certificate from a jurisdiction in one of the 50 states.
There is no need to produce your "US birth certificate" to an adjudicator, who in turn will issue a separate document saying you are a US citizen. You don't have to apply for a document that says you are a US citizen. Your birth certificate from a jurisdiction in the US is that document.
A person born abroad has to produce evidence that their birth meets the statutory requirements, and has to submit it to an adjudicator. Their foreign birth certificate is not evidence of US citizenship. It is evidence that they are an alien.
If they don't produce that evidence, they remain aliens. If they HAVE that evidence, and don't produce it, they remain aliens as far as getting anything done that requires evidence of US citizenship. If the circumstances of birth give them a claim to US citizenship, they are aliens for practical purposes, until they submit the claim for adjudication, and the adjudicator finds them to be citizens.
On his Canadian birth certificate, Ted Cruz is an alien. He has produced no evidence of being a US citizen. If he produces a FS-545 Certification of Birth, that is evidence that he or his parents submitted his claim to a State Department adjudicator, who found Ted to be a US citizen solely by operation of an Act of Congress. This is usually done while the child is still abroad, before entering the US.
If he produces a Certificate of Citizenship from the Immigration and Naturalization Service (now the U.S. Citizenship and Immigration Services branch of the Department of Homeland Security), that is evidence that he or his parents submitted his claim to an Immigration adjudicator, who found Ted to be a US citizen solely by operation of an Act of Congress. This process is followed if the parents neglected to have the citizenship claim adjudicated while the child was young. More particularly, this process is followed typically after the child is 5 years old, and positively certainly after the child is 18 years old.
-- that only had to do with naturalization of a person, not with citizenship at birth- which is a separate issue- --
Well hell bells. Then why are we even having a discussion? Nevermind the fact that the Bellei case says both, Bellei acquired United States citizenship at his birth, and Bellei is a naturalized citizen. Bob says they are separate issues. Ok, Supreme Court, or Bob, which is the legal authority? I guess I'll go with Bob! Hahahahah. you are a real hoot, I gotta hand it to you.
-- He was a citizen jus sanguinis --
So what? Citizens jus sanguinis can't be naturalized? Citizens jus sanguinis are all natural born citizens? I mean, I agree he was a citizen jus sanguinis, and the Bellei case finds that Bellei acquired his citizenship solely by operation of an Act of Congress. Those positions aren't contradictory or mutually exclusive - they run hand in hand. If a person's citizenship is solely jus sanguinis, the person is a naturalized citizen. The case doesn't say so in those words (it refers to "citizenship by descent"), but that is what the case stands for.
The [Wong Kim Ark] Court concluded that 'naturalization by descent' was not a common-law concept but was dependent, instead, upon statutory enactment.
-- Where di the court finds [Bellei got his citizenship from operation of an Act of Congress] that in the case? --
That is in the set of stipulated facts, #3 ...
He [Bellei] also acquired United States citizenship at his birth under Rev.Stat. S: 1993, as amended by the Act of May 24, 1934, S: 1, 48 Stat. 797, then in effect.
-- Except that the act which found him `ineligible' has since been repealed, and the opinion of those who found him ineligible has since been undermined by recent cases --
I explained why the changes to the naturalization act have no bearing on the question of the citizenship being of the naturalized variety. I am not surprised that you don't comprehend the explanation.
You have yet to produce a case that undermines a central premise of the Bellei case, a premise that is necessary for the case to even exist, that premise being that Bellei was naturalized. If it weren't for the Act of Congress being in force, he would have been born an alien. "Naturalization" is the legal act of changing an alien into a citizen, no matter what form that legal act takes.
-- actually I'm pointing to other case law which seem to undo what was found in Bellei case --
The fact that some parts of the Bellei case have been undone (all by Congress, I believe), does not mean that a person who acquires citizenship solely by operation of a statute is not naturalized.
You wasted your time talking about how people lose or give up their citizenship. The issue is how people GET their citizenship, not how they GIVE IT UP.
Voluntarily? Excuse me, VOLUNTARILY? What are you smoking, drinking, ingesting or shooting up?
Bellei did not meet the requirements of the statute.
Bellei's citizenship was taken from him against his will.
He sued to get it back.
The dissent in the Bellei case said this ...
The holding [in Afroyim] was clear. Congress could not, until today, consistently with the Fourteenth Amendment enact a law stripping an American of his citizenship which he has never voluntarily renounced or given up. Now this Court, by a vote of five to four through a simple change in its composition, overrules that decision.
For those of you in Rio Linda, what that says is that the majority decision in this case upholds a statutory provision (since removed by Congress) that strips an American of his citizenship which he has never voluntarily renounced.
Your posts are so riddled with errors, misstatements and fabrications, that it would be impossible to do so by accident. It has to be deliberate on your part. Why don't you get serious and conduct an adult conversation?
“That said, I think your criteria for consideration are blinding you to how the law views citizenship of those born abroad. The cases are very informative, and completely uniform on the assignment of ‘naturalized’ to a birth abroad, even across majority and dissent.”
You made a very good case from court opinions. While I may feel the courts often get it wrong, they are still the courts, and their opinions matter more than someone who is just a citizen with an opinion. At least they do when it comes to making rulings today. They may cite prior court decisions and opinions. They are not likely to cite unlearner on Free Republic.
My opinion, for what it’s worth, is that the courts got it wrong on the 14th amendment. I believe the 14th only applies to those born in the US or naturalized IN the US. I do not agree that all citizenships fall into those two categories. Congress had the authority to pass uniform rules of naturalization before and after the 14th. The 14th may preclude certain acts of Congress in this regard, but power of Congress to grant citizenship to those born outside the US are NOT impacted by the 14th.
I still think that 1790 proves the intent of the founders was that jus sanguinis should prevail on who is a “natural” citizen. Vattel clarified his definition of natural born citizen by adding that children born abroad “naturally” receive the citizenship of their father, including “all” of its rights. In other words, this is not an imperfect naturalization. England operated under jus soli because being a subject had to do with the king’s rights. In America, citizenship is about the citizen’s rights.
In the case of Cruz, his citizenship was conveyed naturally from his mother, and he was a citizen at birth.
Interestingly, neither did the majority in the Bellei case. The phrase "IN the United States" was the precise difference between the majority and dissent.
-- power of Congress to grant citizenship to those born outside the US are NOT impacted by the 14th. --
Agreed. Congress' power to naturalize is plenary. The Court decisions touch on this, as well, sometimes to the extent that this is the excuse for court taking a hands-off approach to stripping citizenship and deportation.
I think we agree on that.
Just in case you have academic curiosity, the part of the 14th that cabins Congress's power to natrualize and denaturalize is the equal protection clause (hotly debated - since when do aliens get equal rights with citizens?), and 14th amendment due process. The Fifth Amendment due process clause gets lots of play too.
Fiallo v. Bell, 430 U.S. 787 (1977) is a case where the courts played hands off.
I’ve given this link before, but I’ll give it again as it pertains to the issues being discussed here as to whether an act of statute always confers a naturalization process
[T]he statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child’s birth and the other chooses not to return, or does not have the means to do so.163
Concerning the contention made in earlier cases that everyone who is made a citizen only by federal statute is a “naturalized” citizen (even those who are made citizens at birth by statute), it may be noted that the common understanding and usage of the terms “naturalized” and
“naturalization,” as well as the precise legal meaning under current federal law, now indicate that someone who is a citizen “at birth” is not considered to have been “naturalized.”164
Justice Breyer, for example, dissenting on other grounds in Miller v. Albright, explained that “this kind of
citizenship,” that is, under “statutes that confer citizenship ‘at birth,’” was not intended to
“involve[ ] ‘naturalization,’” citing current federal law at 8 U.S.C. Section 1101(a)(23).165
The Supreme Court recently recognized in Tuan Anh Nguyen v. INS, that federal law now specifically
defines “naturalization” as the “conferring of nationality of a state upon a person after birth,”166 and thus it could be argued that by current definition and understanding in federal law and jurisprudence, one who is entitled to U.S. citizenship automatically “at birth” or “by birth” could
not be considered to be “naturalized.”
The United States Court of Appeals for the Ninth Circuit has specifically recognized in a recent
case that one may be a “natural born” citizen of the United Sates in two ways: either by being born in the United States, or by being born abroad of at least one citizen-parent who has met the residency requirement. In United States v. Carlos Jesus Marguet-Pillado, a case dealing with the propriety of an appeal based on requested jury instructions not given, the court stated:
No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural born United States citizen:
(1) that the person was born in the United States or
(2) born outside the United States to a biologically-related United States citizen parent who met
certain residency requirements.167
Although the legal cases specifically concerning Senator McCain’s eligibility were generally dismissed for want of subject matter jurisdiction (that is, the lack of legal standing of the plaintiff),168 a federal district court for the Northern District of California did note that Senator
McCain would qualify as a citizen “at birth,” and thus was a “natural born” citizen, since he was born “out of the limits and jurisdiction of the United States” to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth.169
http://fas.org/sgp/crs/misc/R42097.pdf
The weight of more recent federal cases, as well as the majority of scholarship on the subject,
also indicates that the term “natural born citizen” would most likely include, as well as native
born citizens, those born abroad to U.S. citizen-parents, at least one of whom had previously
resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the
birth, had met the requirements of federal law for physical presence in the country.233
from the same link
The federal court in Robinson v. Bowen thus implicitly adopted a meaning of the term “natural
born” citizen in the presidential eligibility clause which would include not only the narrow
“common law” meaning (jus soli, being born geographically in the United States without
reference to parental citizenship, as codified in the Fourteenth Amendment), but also the statutory
designation by Congress of one entitled to U.S. citizenship “at birth” or “by birth” even if born
abroad when such citizenship is transmitted from one’s parent or parents (jus sanguinis).
Qualifications for President and the "Natural Born" Citizenship Eligibility Requirement - CRS-R42097 - Jack Maskell - November 14, 2011
Bob the legal scholar also pointed to the reference at Donald Trump Floats Ted Cruz Eligibility Lawsuit - Post 43 - 01/23/2016 8:11:47 PM
One cite discussed at Obama cites US v Marguet-Pillado. Dicta implies Obama eligible even if born in Kenya - FR - 03/11/2012
The reference to the Marguet case, by Jack Maskell, is in his typical incomplete and misleading style. Here is from the case:
No one disputes that Marguet-Pillado's requested instruction was "an accurate statement of the law," in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements. Nonetheless, the government asserts that the requested instruction "was not supported by the law" because "[t]he issue of Marguet-Pillado's claim of derivative citizenship was decided as a matter of law" in Marguet I.United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001 (9th Cir. 2011)
Two years previous, same court, same plaintiff, same underlying issue, that being deportation - he was deported, by the way - from Marguet I, we find this:
It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution,^2 and the latter is provided for by the enactments of Congress.^32. U.S. Const. amend. XIV S: 1.
3. See Miller v. Albright, 523 U.S. 420, 424, 118 S.Ct. 1428, 1432, 140 L.Ed.2d 575 (1998).
United States v. Carlos Jesus Marguet-Pillado, Case No. 08-50130 (9th Cir. 2009)
A cherry-picked, throwaway jury instruction is being elevated into a rule of presidential eligibility, as being superior to all the case law to the contrary. Got it.
As far as I can see, we're rehashing the contention that a person who obtains citizenship solely by operation of a statute, at birth, is not naturalized. According to Bob and the rest of the legal scholars, those persons were not born an alien. This is an obvious error, but hey, liars and stupid people, not necessarily mutually exclusive, are prone to lie and mislead. Maskell's work is obviously dishonest if one looks at the cites he offers and what they actually say, compared with his cherry picking and his taint on the case law.
Cruz's claim that he was not born an alien is risible! Asked to prove he is a US citizen, the candidate produced a birth certificate from Canada.
I have an even better cite, playing the liar-liar-pants-on-fire game that Bob and Maskell and Cruz many others are fond of playing. That being Justice Thomas in the Zivotofsky case.
... "Congress has the power to set the requirements for acquisition of citizenship by persons not born within the territory of the United States"). It has determined that children born abroad to U. S. parents, subject to some exceptions, are natural-born citizens who do not need to go through the naturalization process. 8 U. S. C. S:S: 1401(c), (d), (g).Zivotofsky v. Kerry, 576 U.S. ___ (2015)
For the reveal, either look at the concurring opinion itself, or remarks at Cole: Coulter makes ridiculous claims on Cruz - Post 196 - FR - 01/24/2016.
You have totally worn out yor welcome with me. Totally. I will never reply to you again.
Proposed constitutional amendment:
"A person who is a citizen of the United States, who has been for twenty years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States."
lol you said that in our last thread together-
I do not rest solely on Maskell’s work- I do not rest on anything- I lean towards the opinion that children of sovereigns receive by descent their parent’s citizenship- IF a woman citizen gives birth to a child off soil- that woman’s child until voting age, is udner them other’s ‘allegiance preference’ since courts find that a child can not participate in voting and declare allegiance until a certain age- This viewpoint is not exclusive to Maskell, and is infact the viewpoint of Neal Katyal & Paul Clement, and many other legal scholars who have determined that 200 years of evidence and cases and arguments side with the idea that natural born draws it’s definition from common law, natutural law, and the law of nations, and hwo believe Congress has the power to describe what is naturalization and what isn’t- You cite the Bellei case as evidence that the courts find that anything that is allowed via statute is naturalization, and rest on that case (amoung others) as the final arbiter for defining Naturalization, however, as pointed out, recent cases have essentially reversed the idea that a natural born citizen can be expatriated so easily (and I made a mistake in a previous post saying ‘renounce citizenship- I did not mean to say ‘renounce’ I meant to state that the courts looked at ‘intent’ to forfeit’ (not renounce), and this has changed since the Bellei case - but that aside, You have a valid argument concerning ‘naturalized by statute’, however, so doesn’t the other side who basically state that ‘citizenship pending’ IS different from ‘citizenship when no citizenship is naturally derived’ (via jus sanguinis or jus soli)- A child born off soil to parents who are not citizens, must be grantede citizenship solely via statute- a child born ot a us citizen off soil has citizenship transmitted to them via jus sanguinis- something a foreign born child to foreigners does not have)
[[Proposed constitutional amendment:]]
Are you suggesting that the proposed amendment that was 16 years ago is now the determining factor in eligibility?
[[The reference to the Marguet case, by Jack Maskell, is in his typical incomplete and misleading style. Here is from the case:
No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements. Nonetheless, the government asserts that the requested instruction “was not supported by the law” because “[t]he issue of Marguet-Pillado’s claim of derivative citizenship was decided as a matter of law” in Marguet I.]]
Speaking of incomplete and misleading- you cut off the part which showed the court could not find
[[The district court accepted this argument and grounded its
decision in the notion that the requested instruction was precluded by the law of the case doctrine.1 Because Marguet-
Pillado’s claim of derivative citizenship was definitively
decided in Marguet I, the district court believed that the jury could not find there was a reasonable doubt as to Marguet- Pillado’s alienage based on his relationship to Michael Marguet, and therefore, that the court could not give an instruction facilitating that conclusion. In other words, the district court seemed to think that the jury could not reach a conclusion that conflicted with the law of the case.
[3] We are mindful of the difficult position that the district court was in when deciding whether to issue instructions related to derivative citizenship in light of our decision in Marguet I. Nonetheless, the district court erred when it ruled that the requested instruction was precluded as a matter of law. Section 1326(a) punishes “any alien who . . . (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States†without permission from the government. “It is well established that, by the statute’s plain terms, alienage is a core element of the § 1326 offense.†United States v. Sandoval- Gonzalez, 642 F.3d 717, 722 (9th Cir. 2011) (citations omitted).
“As such, the government must prove alienage beyond
a reasonable doubt, and a defendant is entitled to have the jury determine that question at trial.†Id. (citations and quotation marks omitted); see also United States v. Smith-Baltiher, 424 F.3d 913, 921 (9th Cir. 2005).
“[i]n federal criminal trials, the United States may not
use collateral estoppel to establish, as a matter of law, an element of an offense or to conclusively rebut an affirmative defense on which the government bears the burden of proof beyond a reasonable doubt.†United States v. Arnett, 353 F.3d 765, 766 (9th Cir. 2003) (en banc) (per curiam); Smith- Baltiher, 424 F.3d at 920.
As our
recent decision in Sandoval-Gonzalez made clear, any instruction requiring
that a criminal defendant prove his citizenship as an affirmative
defense is in error. 642 F.3d at 722-23
[6] Because Marguet-Pillado’s proposed instruction was
supported by the law, the district court was required to give that instruction to the jury so long as it had “some foundation in the evidence.†Bello-Bahena, 411 F.3d at 1088-89. The jury received evidence that Michael Marguet was listed on Marguet-Pillado’s birth certificate as his father, that Michael Marguet was a United States citizen, that Michael Marguet had lived and worked in the United States for some time prior to Marguet-Pillado’s birth, and that Marguet-Pillado was born near the United States border. This evidence is sufficient to establish a foundation in the evidence that Marguet-Pillado was not an alien because he had derived citizenship. See Bello-Bahena, 411 F.3d at 1091]]
-——————[[[7] Indeed, we reached the conclusion that Marguet- Pillado was an alien in the first appeal because Marguet- Pillado admitted that Michael Marguet was not his biological father on his appeal. Appellant’s Opening Brief, Marguet I, 2008 WL 6796023 (Sept. 10, 2008). On the basis of those facts, Marguet I held that Marguet-Pillado was not entitled to derivative citizenship. But that earlier guilty verdict has been vacated]]
(Same link you provided)
It seems the district court violated his rights I n- the first case, and the first ruling has been vacated- hence the reason CRS cited this case-
[[This is an obvious error, but hey, liars and stupid people, not necessarily mutually exclusive, are prone to lie and mislead.]]
I’ll ask again, “What, Are you 12 years old or something?”
[[According to Bob and the rest of the legal scholars, those persons were not born an alien.]]
‘the rest of the legal scholars’ huh? lol- ok-
[[A cherry-picked, throwaway jury instruction is being elevated into a rule of presidential eligibility,]]
A cherry picked court case is being used by you to support your contention that an act of statute automatically conveys an act of naturalization and by implication disqualifies a person from the presidency- Pot Meet Kettle-
[[ I will never reply to you again.]]
Bye
I find it odd that you get all bent out of shape if someone misrepresents your words- even unintentionally- and hold that grudge forever it seems- but you have no problem yourself doing so to other-s falsely assigning motive to them falsely accusing htem of ‘lying’ of being ‘contemptible liars’ ‘deceitful’ ‘misleading’ etc-
I have simply been trying to make an argument, to the best of my ability, and errors on my part are NOT intentional attempts to mislead- You have accused me over and over and over again , ad nauseam- and this seems ot be an unfortunate pattern of yours not just with me, but with most people you converse with- I’m not sure if it stems from a low self esteem, but usually people with low self esteem resort to the childish tactic of yelling ‘liar lair pants on fire’ - and resorting to calling people the nasty term of ‘contemptible liar’- I have explained to you many times that I am arguing based on what I believe to be the case, whether it is correct or not, I don’t know for certain, but I do believe it is- I have made NO attempt to intentionally mislead anyone about anything- and I don’t appreciate your childish incessant insistence that I have-
I asked you awhile back to refrain from childish insults and false accusaitons, but apparently you are incapable of doing so
[[I will never reply to you again.]]
Gee- don’t let the door hit you on the way out-
The constitution states, In essence, that in order to be president, a person must be a ‘birth born citizen’ (citizen of the US)- or to have ‘birthright citizenship’ - Down through the ages, birthright citizenship has been afforded to those born just soli, and just sanguinis, and subsequent cases such a Nguyen case indicate that there is no difference between a citizen mother who has a child off soil or on soil- no difference- law 1401 g) does not carry a qualifier that states a citizen mother who has a child off soil has the same status AFTER a process takes place, it indicates that her child ‘has’ citizenship ‘at birth’- pointing to an exception to the rule (1409) and implying that this makes the law of 1401 an act of naturalization simply isn’t correct- The opinion of the Nguyen case was that there is no difference in status of a child born off soil or on soil to a citizen mother, and that as a result of that case, it can now be argue that at birth and by birth are not acts of naturalization that go along with current federal law at 8 U.S.C. Section 1101(a)(23).165
Unlearner was correct in citing the act of 1790 which used the term natural born- those who make the claim that because the 1795 act removed the words it meant that the original founders didn’t intend the phrase to be used, are missing the fact that all it did, removing the term, was to make the issue of NBC vague again- it did not remove the possibility that a child born to a citizen abroad would be considered NBC
There are two sides in this issue- those who think any act of congress/statute, makes someone ineligible, and those that, like Justice Breyer, and others who state that a statute does not automatically confer a naturalization process, and that congress holds the power to describe those who need naturalization and those who don’t
The fact that this issue has gone back and forth down through the ages, and hasn’t been decided in over 200 years shows that this is anything but settled-
The constitution never states that the only possibility for serving as president is that a person ‘must be born In the united states, and only in the united states, to two citizen born parents’- a very easy term to add to the constitution IF the founders had intended that criteria to be the only deciding factor- and a phrase that would have saved legal scholars 200 years worth of arguments back and forth
While passion for a position may run high on both sides of the isle- it’s a little, nay, a lot petty for any side to maliciously accuse the other of lies and deceit while one side argues their points- when a simple ‘sorry, but I don’t find that to be the case, and here’s why’ would be far more conducive to hashing out problems with an opponent’s points-
I had hoped you could rise above that Cdbolt, but apparently you can’t- I am not a legal scholar, I can only cite what legal scholars say on the issue and either agree or disagree and give the reasons why I agree or not- right or wrong- I do not claim to be right. only to make a case which seems reasonable and right to me given the information I have at present- You disagree, and that’s fine- but it does no one any good for you to get all huffy and falsely accuse those you are arguing with of things they are not guilty of- It’s just too bad you couldn’t rise above the petty insults- which I ignored for many how many weeks now? Too many really-
sorry, that should read ‘born citizen’ or ‘citizen at birth’ not ‘birth born citizen’
bump
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