Ain't the Internet grand?
John / Billybob
Great job John, as usual. Sure hope Rush talks about this today.
...by doing incomplete homework, perhaps deliberately, the New York Times has created another hatchet job on John McCain, to benefit either Barack Obama or Hillary Clinton, either of whom the Times prefers.
Perhaps deliberately???
Not to dis in any way Mr. Armor, but I heard that Ted Olsen had said that the NYT’s position was absurd ab initio and that McCain was certainly eligible to hold the office of President. When Mr. Olsen, former Solicitor General of the U.S., speaks, I listen and so should the NYT.
I read part of that thread just a few minutes ago. Thank you for adroitly and eloquently BUSTING the Time’s propaganda. IMO, McCain should grab the Times article and run with it.
I have no dog in this fight, but feel it should be clarified by Congress.
McCain DERIVED (the term used by immigration officials, not natural born not naturalized) citizenship because of one or both of his parents. There is still a question by many of whether his citizenship is “natural born”
According to the Acts of Congress one may believe he is in fact naturalized:
http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=227
http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=538
(see section 3 -and the act is called An Act to establish an uniform rule of naturalization,(not citizenship and naturalization)
http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=002/llsl002.db&recNum=192
this is not a new issue see below concerning Natural Born Citizen Act introduced in Congress in 2004 and not passed, so I believe there is in fact an issue.
http://www.govtrack.us/congress/bill.xpd?bill=s108-2128
http://www.jcics.org/natural%20born%20summary%20(word).doc
......Support for the position that the term “natural born Citizen” should include children born outside the United States to citizen parents is particularly well articulated in a law review article by Jill A. Pryor entitled The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty. This article argues that “any person with a right to American citizenship under the Constitution, laws or treaties of the United States at the time of his or her birth is a natural-born citizen for purposes of presidential eligibility.” .......
see a more complete discussion and question as to who can challenge eligibility-it is not laid out in our constitution like it is in the Philippines.. http://www.iht.com/articles/2008/02/28/america/28mccain.php
Is it not possible for this issue to end up in the Supreme Court or have Congress hastily pass a law to decide the issue? I believe the electorate and those who contemplate running for office deserve to have the issue clarified one way or the other. I also believe it would be unfair to disqualify one to be President based on foreign birth while parents are subject to US jusrisdiction just like it would be unfair to make one a US citizen by way of birth in the US or possesions or CZ when their parents are here illegally. How would one go about challenging either?
regards rs
“NY Times’ Latest McCain Hatchet Job”
Good times, pass the popcorn!
McCain disappointed.
Best line making its way around the internet:
“Good thing McCain wasn’t born on February 29th, they’d be debating whether or not he is over 35.”
This is SO over-the-top egregious, and will create such a huge wave of sympathy for McCain, that I’m starting to wonder if the NYT is actually rooting for him - or are they that stupid?
Freepmail or ping me on the thread to be added to the new John Armor for Congress ping list.
Thanks very much for the ping. WOW! Outstanding article Congressman!
(That last sentence sure has a nice ring to it. What if Congress consisted of FR’s finest? We could all pursue happiness, secure in knowing that our lives and liberties were in the best of hands.)
OUTSTANDING article John! Thank you sir.
One quibble only: it doesn’t matter whether he was born in the Canal Zone or on the moon. He is a citizen by 8 USC 1401(c) regardless of where he is born, and redundantly by (a) being born in the Canal Zone.
Aw man. We don’t want to hear about McCain’s birth canal.
BTTT! Thanks to all contributors to this thread exposing the outrageous behavior by the NY Times.
February 13, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1735
No. 95-1558
ROGER F. ALEXANDER, ETC., ET AL.,
Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ERRATA SHEET
The opinion of this Court, issued on January 31, 1996, should be amended as follows:
On cover sheet, line 1 of attorney listings, replace “ William A. Maganiello “ with “ William A. Mangiello “.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1735
No. 95-1558
ROGER F. ALEXANDER, ETC., ET AL.,
Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Boudin, Circuit Judge ,
Bownes, Senior Circuit Judge ,
and Stahl, Circuit Judge .
____________________
Michael G. Hillinger with whom William A. Mangiello was on briefs for petitioners.
Carl H. McIntyre, Jr. , Office of Immigration Litigation, Civil Division, Department of Justice, with whom Stuart M. Gerson , Assistant Attorney General, Civil Division, Frank W. Hunger , Assistant Attorney General, Civil Division, and David J. Kline , Assistant Director, were on briefs for respondent.
____________________
January 31, 1996
____________________
BOUDIN, Circuit Judge . Petitioner Roger Alexander, named Roger Alexander Hobbs at birth, was born in Great Britain on February 13, 1945, son of Sarah Hobbs and, he alleges, Floyd Alexander, an American serviceman. Roger was unaware of his true father until 1968, when he discovered that the man whom he believed to be his father had died in 1943. His mother then told him that his father was in fact Floyd Alexander. Sometime after Floyd’s death in 1970, Roger established contact with his supposed American half-siblings. In 1984, Roger, his wife Anne, and their three sons moved to the United States.
In 1985, Roger filed an application for a certificate of U.S. citizenship which was denied the following year. Some months after Roger filed the application, the Immigration and Naturalization Service (”INS”) served an order to show cause on Roger and Anne, charging that they were deportable under 8 U.S.C. § 1251(a)(2), on the ground that they had overstayed their non-immigrant visas. Roger contested this order by presenting a claim to derivative citizenship through Floyd.
The INS held three days of hearings on Roger’s citizenship claim in Boston in 1987 and 1988. On September 22, 1988, the immigration judge entered an order denying Roger’s claims, finding the Alexanders deportable, and granting their request for voluntary departure. That order was appealed to the Board of Immigration Appeals; on June 9, 1992 the Board dismissed the Alexanders’ appeal, holding that Roger had not met the statutory requirements for derivative citizenship under 8 U.S.C. §§ 1401 and 1409. The Alexanders filed a motion for reconsideration which the Board denied. The Alexanders then filed in this court a timely petition for review, which we now grant.
8 U.S.C. § 1105a(a)(5) provides that whenever a petitioner, who seeks review of an order of deportation,
claims to be a national of the United States and makes a showing that his claim is not frivolous, the court shall (A) pass upon the issues presented when it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (B) where a genuine issue of material fact as to the petitioner’s nationality is presented, transfer the proceedings to a United States district court . . . for hearing de novo . . . .
The government does not contest that Roger has alleged a viable theory of citizenship. The only question for our decision is whether there is a “genuine issue of material fact” for determination by the district court. Agosto v. INS , 436 U.S. 748, 754 (1978). This standard is analogous to that governing motions for summary judgment under Fed. R. Civ. P. 56. Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986).
If Roger has a statutory claim to U.S. citizenship, it is by operation of 8 U.S.C. § 1409(b), [1] which states in relevant part that
the provisions of section 1401(g) of this title shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
18 U.S.C. 1401(g) provides that the foreign-born child of parents, one of whom is a U.S. citizen and one of whom is an alien, is “a citizen . . . at birth” if the U.S. citizen parent resided in the United States for a statutorily defined period prior to the child’s birth.
Thus, to show that he was a U.S. citizen at birth, Roger must prove that (1) Floyd was his father; (2) Floyd was a U.S. citizen who satisfied the physical presence requirements of section 1401(g); and (3) Floyd’s paternity was established prior to Roger’s 21st birthday. Enough evidence at the INS hearing indicated that Floyd was Roger’s biological father, and Floyd was admittedly a U.S. citizen who satisfied the physical presence requirements. So this appeal turns on whether there is also a genuine factual dispute as to whether Roger was legitimated prior to his 21st birthday.
At the hearing before the immigration judge, Roger offered the affidavit of David Klickstein, now deceased, a Maine attorney and notary public. According to the affidavit, in 1955 Floyd signed a document acknowledging that Roger was his son; Klickstein notarized the document but did not keep a copy, nor was any copy offered at the hearing. Roger also offered testimony by Floyd’s first wife that Floyd had told her that he had executed the alleged affidavit. Floyd’s alleged document, if made and acknowledged as described in Klickstein’s affidavit, legitimated Roger as Floyd’s son under Maine law in 1955, when Roger was under age 21. See 8 U.S.C. § 1101(c)(1) (providing that state law governs). [2]
To be sure, the Board found the Klickstein affidavit unconvincing, saying that Roger’s “claim that his father executed a purported document acknowledging paternity is not adequately supported.” But under the unusual statutory procedure already described, this court does not review that finding under a substantial-evidence or other customary standard. Once a genuine material issue of fact is posed, the statute entitles Roger to a trial de novo in the district court. 8 U.S.C. §1105a(a)(5).
On appeal the INS argues that the absence of the actual document is fatal to Roger’s claim as a matter of law. We disagree: there is nothing in the language of the Maine statute to indicate that the continued existence of the document is essential to legitimation, nor does the INS refer us to any Maine case law to support this view. To the contrary, the statute indicates that it is the creation of the document, not its preservation, that matters. Cf. In re Joyce’s Estate , 183 A.2d 513, 514 (Me. 1962).
Although it might surprise a lay person to see how little importance we attach to the preservation of the affidavit, no lawyer would be surprised. A will, for example, must be made and executed with startling formality, but if lost or misplaced may be proved by oral evidence. E.g. , In re Estate of Fuller , 399 A.2d 960, 961 (N.H. 1979). Indeed, the whole tendency of the law of evidence governing documents is to demand the original if available but to forgive its absence if explained. See Fed. R. Evid. 1004. Of course, Roger must prove that his legitimation occurred but this is a matter for the district court. [3] other more readily admissible evidence exists to show that Floyd’s statement was prepared and notarized.
The INS argues in the alternative that even if Roger became a “citizen . . . at birth” under section 1401(g), he lost his citizenship under the retention requirements of former section 1401(b). That section originally provided, with a qualification not here pertinent, that anyone who became a citizen under section 1401(g) lost his citizenship unless he came to the U.S. before age 23 and remained for at least five years. 66 Stat. 235 (1952). Roger admits that he does not satisfy this requirement, nor a slightly less rigorous version later enacted. See 92 Stat. 1046 (1972).
Although the retention requirement was repealed entirely in 1978, the repeal was by its own terms not retroactive. 92 Stat. 1046. We were therefore initially disposed to conclude that Roger’s section 1409(b) claim was barred by the retention requirement. However, in the course of preparing the opinion, the court encountered a 1994 amendment, codified at 8 U.S.C. § 1435, that provides relief as follows:
A person who was a citizen of the United States at birth and lost such citizenship for failure to meet the physical presence retention requirements under section 1401(b) of this title (as in effect before October 10, 1978), shall, from and after taking the oath of allegiance required by section 1448 of this title be a citizen of the United States and have the status of a citizen of the United States by birth, without filing an application for naturalization . . . .
The effect of this language appeared to allow Roger to escape the retention requirement merely by filing an oath of allegiance. See 8 U.S.C. § 1448 (prescribing oath).
Confident that the INS would wish to see justice done, we asked the parties to address this provision in supplemental briefs. Roger replied that he had not yet taken such an oath but proposed to do so. The INS, in its reply, did not deny that the oath would erase the bar of former section 1401(b). But it argued that this court has “no jurisdiction” to consider the 1994 amendment issue because that would require consideration of evidence not appearing “upon the administrative record upon which the deportation order is based.” 8 U.S.C. § 1105a(a)(4).
Section 1105a(a)(4), like many counterparts, e.g. , 5 U.S.C. § 706; 29 U.S.C. §§ 160(e) and (f), is intended to prevent a reviewing court from considering evidence not before an administrative agency, i.e. , to assure that agency findings are reviewed upon the record made before the agency. Cf. Camp v. Pitts , 411 U.S. 138, 142 (1973). Nothing in such provisions prevents a reviewing court from applying correct legal principles to a dispute, whether or not previously identified in the agency proceeding. And if former section 1401(b) is now a hollow shell, the INS’ argument fails as a matter of law.
Of course, Roger did not rely upon the 1994 amendment (nor did the INS mention it to us in its brief). Failure to raise an argument in timely fashion means that a reviewing court is free to disregard it. Thomas v. INS , 976 F.2d 786, 789 (1st Cir. 1992). But the law that was overlooked (the 1994 amendment) is not disputed, Congress’ intent to preserve citizenship on condition is apparent, the condition can be mechanically satisfied, and the right in question—American citizenship—is one of the most precious imaginable.
We therefore transfer this case to the district court for trial de novo . 8 U.S.C. §1105a(a)(5). We do not at this time pass upon any alternative constitutional claims made by Roger. The district court may require Roger to present evidence within a reasonable time that he has executed the oath prescribed by 8 U.S.C. § 1448; if Roger fails to do so, the district court may dismiss on that ground alone. Otherwise, the court should proceed to the merits of his claim under section 1409(b).
It is so ordered.
FOOTNOTES
[1]
Roger argues that he qualifies for citizenship under 8 U.S.C. § 1409(a), but it is clear that current section 1409(a) does not apply to individuals born prior to November 15, 1968. See 102 Stat. 2619 (1988). And former section 1409(a) applies only to individuals born on or after December 24, 1952. 66 Stat. 238 (1952).
[2] Under Maine law in 1955, “[i]f the father of a child born out of wedlock adopts him or her into his family or in writing acknowledges before some justice of the peace or notary public that he is the father, such child is . . . the heir and legitimate child of his or her father.” 4 Me. Rev. Stat. c. 170, § 3 (1954), repealed by 1979 Me. Laws ch. 540, § 24-C.
[3] The Board apparently considered the Klickstein affidavit at the hearing but found it insufficient. As the issue has not been raised by the INS, we have no occasion to consider whether the affidavit would be admissible in district court under a hearsay exception, e.g. , Fed. R. Evid. 804(b)(5), whether the rules of evidence would be strictly applied in a proceeding before the district judge, or whether