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Bob,

I've taken a closer look at Nguyen and concluded that yes, Maskell's take on naturalization after birth in Nguyen is accurate. In the contested portion of the CRS report, he states:

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."

Available here: https://fas.org/sgp/crs/misc/R42097.pdf

At issue in Nguyen was the fact that the father had to meet different conditions than the mother to confer citizenship on the son. The complainant was claiming the controlling statute was an unconstitutional violation of the equal protection clause, because it had different requirements for the father versus the mother. The father, to establish citizenship-worthy paternity, had to have more than just a dna connection to the child, but also had to demonstrate a real, personal connection that could only be accomplished after the child was born.

The Court, after concluding the statutory distinction between genders was not a violation of equal protection, addressed another of Nguyen's arguments, that the offensive subsection, had it been found unconstitutional, would have been severable from the Immigration and Naturalization Act:

In this regard, it is significant that, although the Immigration and Nationality Act contains a general severability provision, Congress expressly provided with respect to the very subchapter of the United States Code at issue and in a provision entitled "Sole procedure," that "[a] person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise." 8 U.S.C. Â§ 1421(d); see also Miller, supra, at 457-458 (Scalia, J., concurring in judgment). Section 1421(d) refers to naturalization, which in turn is defined as "conferring of nationality of a state upon a person after birth." 8 U.S.C. Â§ 1101(a)(23). Citizenship under section Â§1409(a) is retroactive to the date of birth, but it is a naturalization under section Â§1421(d) nevertheless. The conditions specified by section Â§1409(a) for conferral of citizenship, as a matter of definition, must take place after the child is born, in some instances taking as long as 18 years. Section 1409(a), then, is subject to the limitation imposed by Â§1421(d).

Available here: https://www.law.cornell.edu/supct/html/historics/USSC_DN_0099_2071_ZO.html

The above passage is classic dicta, placed there to offer clarity to questions that might arise in inferior courts, but not controlling law the way a holding would be. It establishes that the paternity requirements are impliedly not severable from the act as a whole, which has the further implication that the Act would have to be re-legislated from scratch to change the provision in question.

And Maskell does not present this passage as controlling law but as informative of how SCOTUS views the federal law regarding "by birth" versus "naturalized" citizenship. Maskel's analysis is accurate because the condition of paternity (post-natal connection to the child) is inherently a condition that cannot be met at the moment the child is born. Given that Nguyen's mother was an alien, she could not convey citizenship automatically, at the moment of birth, which she certainly could have done had she been a bona fide citizen at that moment of birth.

However, unlike the mother, the best the citizen father could do would be to meet the required "connectedness" condition sometime after the birth, and only then have the citizenship attribute applied retroactively, back to the date of birth, but by process of law, and not as a condition inherent in the birth. Therefore, Maskell is correct in identifying an implicit federal dichotomy between automatic "by birth" citizenship ("natural born") versus citizenship resulting from "after birth" events ("naturalization").

Peace,

SR

[[The father, to establish citizenship-worthy paternity, had to have more than just a dna connection to the child, but also had to demonstrate a real, personal connection that could only be accomplished after the child was born.]]

Thank You for explaining this- I had read that this requirement had figured in fairly heavily into the naturalization acts especially for the mother because she was usually the one who had the most contact with a child as far as nurturing and forming a child’s moralities and allegiances, which was why later naturalization acts changed it from father to ‘either’ parent

[[However, unlike the mother, the best the citizen father could do would be to meet the required “connectedness” condition sometime after the birth, and only then have the citizenship attribute applied retroactively, back to the date of birth, but by process of law, and not as a condition inherent in the birth. Therefore, Maskell is correct in identifying an implicit federal dichotomy between automatic “by birth” citizenship (”natural born”) versus citizenship resulting from “after birth” events (”naturalization”).]]

Ok- it’s all falling into place for me now regarding the CRS report- I have always felt that citizenship should be ‘birthright’ or ‘citizenship by descent’ in a country made up of individual sovereigns (we the people)-

[[The above passage is classic dicta, placed there to offer clarity to questions that might arise in inferior courts, but not controlling law the way a holding would be. ]]

Could there ever be a SC ruling on the issue to settle it? Or will it always be ‘inferred’ that at birth and by birth are to be considered NBC?