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[[The mother was an alien, and could not transfer citizenship at birth (child not born directly into citizenship). The key thing in Nguyen is that it recognizes naturalization as requiring some event after birth to secure citizenship. Birth that requires no such post-natal event is NOT naturalization. Is there any other non-naturalized category besides “natural born?” I am not aware of any.]]

If you don’t mind, I’d like to ping you over to the following thread briefly, as I am in a discussion that that follows almost to a T what you have stated about the Nguyen case- only I’m not explaining it as well as you are- I’m saying essentially the same thing, but in a more convoluted manner unfortunately

The counter argument in the thread is that the Nguyen case is that the case doesn’t make an equivalency between a mother who is a citizen who has a child on soil and a citizen mother who has a child off soil because the case is only about 8 us code 1409

http://www.freerepublic.com/focus/f-news/3390723/reply?c=219

Perhaps He’s not communicating a point that he is trying to make well, or maybe I’m just not seeing his point- I can’t tell which- you don’t have to jump into that thread, but Your ability to word arguments cohesively is better than mine I’m afraid-

I am otherwise occupied at the moment, on a legal matter in fact, and can't get into the tangle. I did take a quick look at the statutory structure and the thing to remember here is that statutory code is a lot like software, in that parts of it that seem unrelated really are tightly coupled. For example, if our contenders would just take a quick look at the actual Nguyen opinion, they would see that 8 U.S.C. Â§ 1101(a)(23) is where the definition of naturalization appears, "conferring of nationality of a state upon a person after birth," and that is the operative definition in any subordinate sections of the statute, and the critical piece in the NBC debate.

Furthermore, a great deal of 1401 is incorporated by reference in 1409. The legislature is writing "reusable code," and referencing it with a pointer. The parameters set in the incorporated section remain set in the referencing section unless specifically countermanded. And we would expect the legislature to not contradict itself, but to ensure that any framework established in 1401 would carry forward in the very similar circumstances of 1409, to the extent possible, excepting variations such as the unwed parent. The broader classifications, what constitutes "naturalization," is upstream from both 1401 and 1409, and so controlling in both. So the effort to keep those definitions and previously established conditions out because the case is focused on 1409 is nonsensical. It is a network of dependencies, and a good attorney arguing a real case is going to carefully flesh all that out, amateurish misunderstandings notwithstanding.

I hope this helps you somewhat, although I would prefer to have more time to do a proper analysis. The main takeaway is that Maskell is right, the Nguyen court does recognize as binary categories citizenship by post-natal action (naturalization) versus citizenship absent any post-natal action (opposite of naturalization), and treats Nguyen's dad's action (or lack of it) as belonging to a naturalization process because it is post-natal, per 1101a23.

BTW, in deference to our "mutual acquaintance" who must not be named, I took a close look at the Bellei case, and it does not address NBC as ratio dedidendi (reason for the decision), which means under the Wambaugh Inversion Test, the NBC content is dicta. Predictable.

I would also keep in mind that the congressional power of naturalization, often cited as the basis for assuming Congress cannot issue statutory comment on "natural born" status, is NOT so clearly set apart from common law definitions of citizenship, as exampled by the 1790 Naturalization Act, which did invoke NBC status under the congressional statutory power, and this under the pen of the men who wrote our Constitution. This holds even if some later case law reflects some confusion on the matter. It's one of the things we routinely discussed in ConLaw. SCOTUS, taken over decades, often uses terms with less than perfectly stable meanings, and slowly produces anarchy in some lines of cases.

So if the Bellei logic (1971) were applied by today's SCOTUS, the conclusion likely would be that one may have true citizenship at birth that is nevertheless revokable on failure to meet later residency requirements. This occurs because the modern court recognizes the Nguyen (2001) binary between naturalization versus citizenship at birth. The tricky part is distinguishing citizenship at birth from citizenship retroactive to birth. Nguyen's citizenship, based as it was on an unmarried citizen father, could be thought of as pending, waiting for the father to complete his paternal duties, whereas Aldo Bellei really was a citizen at birth (thus NBC), but could lose it by voluntary action, refusing to come and live in the Unites States for a number of years. In this view, both Bellei and Cruz would be NBC, and both could surrender that status by voluntary action.

Bottom line, no, Cruz being NBC-eligible is NOT in contradiction to Bellei, though I agree that careful analysis is required to reach that conclusion.

BTW, for extra credit, here's a "fun" hypothetical. If someone is an unquestioned NBC, say, born in country to two fully qualified citizen parents, and they go join ISIS, can Congress declare them to have lost their citizenship? I would be OK with that. The argument would be that the founders had a different view of citizenship than the monarchy. By divine right, the monarch had dominion over everyone born under its jurisdiction. The subject is owned by the monarch. But the founders were "pro-choice" with respect to citizenship. They believed people had a natural right to choose their own leaders freely. The counter is that, OK, but the founders would not understand involuntary expatriation as an exercise of that choice. But I say perhaps they would, because choosing to follow ISIS IS a voluntary choice. Therefore it would seem that voluntary expatriation could apply even to an NBC, because the divine right of kings, and the inescapable servitude that implied, was rejected by the founding generation. It was a revolution after all.

Peace,

SR