Replies

“Scouts hasnâ€™t ruled on it.”

I suppose you mean SCOTUS. They have, more than once. It is claimed that the SCOTUS has not ruled, but that is just to cause confusion.

Not responsive to your remarks, but you may find this interesting or useful, or just a kick out of being "technically correct" so you can impress your friends and family ;-)

The original State Department document that would pertain to Cruz is not an FS-240, CRBA, Consular Record of Birth Abroad. It would be an FS-545, an obsolete document now. The US stopped issuing FS-545 in 1990.

If Cruz produces a CRBA, FS-240, that means the record was produced after 1990, some 20 years after he was born. Such a (FS-240) document is, I think, impossible to exist, unless it is a replacement for a FS-545.

The reason it is impossible is that FS-545 and FS-240 must be applied for before the child is 18. There is a third document used for those who apply for recognition of statutory citizenship after they reach the age of majority.

Looks like McCain was naturalized too. We had a choice between two usurpers in the 2008 election. One born abroad, one a dual citizen.

More "stuff." Reference recent opinion letter cites to some case law, that I haven't looked up yet.

US Citizenship and Immigration Services Decision of April 10, 2014, on the effect of being adopted by a US citizen mother, in light of 8 USC 1401(g), birth abroad to one-citizen parent.

The ruling was essentially that the adoptive mother couldn't transmit citizenship by her blood. Citizenship under 1401(g) is strictly associated with and limited to the natural parents.

No particular reason to post this to you - you just have the misfortune of being a recent correspondent of mine.

Stupid auto correct.

SCOTUS has not issued an opinion against the fact that people born in another country to a US citizen are considered natural born and citizens at birth.

An exceprt from Dung Van Chau, Petitioner, v. Immigration and Naturalization Service, Respondent, 247 F.3d 1026 (9th Cir. 2001)

In a deportation proceeding, the INS bears the ultimate burden of establishing all facts supporting deportability by clear, unequivocal, and convincing evidence. Murphy v. INS, 54 F.3d 605, 609-610 (9th Cir. 1995). However, evidence of foreign birth gives rise to a rebuttable presumption of alienage, shifting the burden to the respondent or deportee to prove citizenship. Id. If the deportee can produce substantial credible evidence in support of his or her citizenship claim, thereby rebutting the presumption, INS' burden of proving deportability by clear and convincing evidence again comes into play. Id.; see also Woodby v. INS, 385 U.S. 276, 277, 286, 87 S. Ct. 483, 484, 488 (1966).

This reference has a wealth of cites: "WHO IS A U.S. CITIZEN?" - American Citizens Abroad -2012

Become a Citizen | Homeland Security

To become a citizen at birth, you must:

Be born in the U.S or in certain territories or outlying possessions of the United States, that are subject to the jurisdiction of the United States
Have a parent or parents who were citizens at the time of your birth
If you were born outside the U.S., you must meet these requirements outlined by the U.S. Department of State

Naturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA). To become a citizen by naturalization, you must:

Apply for "derived" or "acquired" citizenship through parents
Apply for naturalization

Concurring Opinion in Miller v. Albright, 523 U.S. 420 (1998)

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, con- curring in the judgment. ...

The Constitution "contemplates two sources of citizen- ship, and two only: birth and naturalization." United States v. Wong Kim Ark, 169 U. S. 649, 702 (1898). Under the Fourteenth Amendment, "[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization." Ibid. Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and "can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress." Id., at 702-703; see also Rogers v. Bellei, 401 U. S. 815, 827 (1971). Here it is the "authority of Congress" that is appealed to-- its power under Art. I, 8, cl. 4, to "establish an uniform Rule of Naturalization." If there is no congressional enactment granting petitioner citizenship, she remains an alien. I would point out that plaintiff below asked for a Declaratory judgment, and her case was heard on the merits. This is evidence that Cruz can, of his own volition, seek a declaratory judgment.

Concurring Opinion in Miller v. Albright, 523 U.S. 420 (1998)

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment. ...
The Constitution "contemplates two sources of citizenship, and two only: birth and naturalization." United States v. Wong Kim Ark, 169 U. S. 649, 702 (1898). Under the Fourteenth Amendment, "[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization." Ibid. Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and "can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress." Id., at 702-703; see also Rogers v. Bellei, 401 U. S. 815, 827 (1971). Here it is the "authority of Congress" that is appealed to-- its power under Art. I, 8, cl. 4, to "establish an uniform Rule of Naturalization." If there is no congressional enactment granting petitioner citizenship, she remains an alien.

I would point out that plaintiff below asked for a Declaratory judgment, and her case was heard on the merits. This is evidence that Cruz can, of his own volition, seek a declaratory judgment.

Kagan, arguing to SCOTUS as Solicitor General in Flores-Villar v. United States.

The United States has always applied the rule of "jus soli, that is, that the place of birth governs citizenship status except as modified by statute." Bellei, 401 U.S. at 828

Case summary at SCOTUSBlog, judgment was affirmed without an opinion, by an equally divided court. Kagan recused herself, having argued below.

The only thing I've found so far, that could be spun as contrary, is a "brain fart" statement by Thomas, in 2015, in a case that was NOT about citizenship, but was about a power of the president ZIVOTOFSKY v Kerry - 13-628 (2015)

Our Constitution allocates the powers of the Federal Government over foreign affairs in two ways. First, it expressly identifies certain foreign affairs powers and vests them in particular branches, either individually or jointly. Second, it vests the residual foreign affairs powers of the Federal Government--i.e., those not specifically enumerated in the Constitution--in the President by way of Article II's Vesting Clause.
Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, ignores that constitutional allocation of power insofar as it directs the President, contrary to his wishes, to list "Israel" as the place of birth of Jerusalem-born citizens on their passports. The President has long regulated passports under his residual foreign affairs power, and this portion of S:214(d) does not fall within any of Congress' enumerated powers.
By contrast, S:214(d) poses no such problem insofar as it regulates consular reports of birth abroad. Unlike passports, these reports were developed to effectuate the naturalization laws, and they continue to serve the role of identifying persons who need not be naturalized to obtain U. S. citizenship. ...
Although the consular report of birth abroad shares some features with a passport, it is historically associated with naturalization, not foreign affairs. In order to establish a "uniform Rule of Naturalization," Congress must be able to identify the categories of persons who are eligible for naturalization, along with the rules for that process. Congress thus has always regulated the "acquisition of citizenship by being born abroad of American parents . . . in the exercise of the power conferred by the Constitution to establish a uniform rule of naturalization." United States v. Wong Kim Ark, 169 U. S. 649, 688 (1898) ; see also Miller v. Albright, 523 U. S. 420, 456 (1998) (Scalia, J., concurring in judgment) (recognizing that "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).

On their face, the bolded passages are conflicting on the question of a 1401(g) person being naturalized.

The legal term of art for 1401(g) and similar predecessor Acts of Congress that confer citizenship jus sanguinas is "citizenship by acquisition." I'm using that term to search for more cases, although at this point I'm guilty of piling on.

US DOJ Immigration Law Advisor - November 2008

Article II of the U.S. Constitution requires that the President of the United States be a "natural born citizen," which led some to question whether McCain, who was born in the Panama Canal Zone while his father was stationed there as a Naval officer, was even eligible to be president.1 U.S. Const. art. II, S: 1, cl. 4. That is a matter for constitutional scholars to sort out; but, as we will see, there is little dispute that McCain has been a citizen of the United States since birth. ...

Interesting and accessible exposition on "acquired citizenship," which is not the same as "natural born citizenship," in that the citizenship depends on a statute.

Thomas v. Lynch - 5th Circuit - August 7, 2015 - 14-60297

Petitioner Jermaine Amani Thomas was born on August 9, 1986, in a military hospital located on a U.S. military base in Frankfurt, Germany. Thomas's father, a United States citizen, was a member of the United States military serving on the base. Thomas's father first entered the United States in September 1977, enlisted in the United States Army in 1979, and became a United States citizen in May 1984. Thomas's mother was a citizen of Kenya. ...
At a hearing before an Immigration Judge ("IJ") on December 12, 2013, Thomas conceded that, if he is not a United States citizen, he is removable based on his aggravated felony and domestic violence convictions. The only relief sought by Thomas before the IJ was a declaration that he is a United States citizen and the termination of removal proceedings. The IJ found that Thomas's birth in Germany gave rise to a rebuttable presumption of alienage. The IJ determined that based on the Department of State Foreign Affairs Manual (FAM), as well as the plain language of 8 U.S.C. S: 1401(a) and the Constitution, the military base on which Thomas was born was not part of the United States for purposes of the Fourteenth Amendment. Accordingly, the IJ concluded that Thomas had failed to rebut the presumption of alienage. ...
The BIA agreed with the IJ that Thomas's birth at the military hospital in Germany, to only one United States citizen parent, gave rise to a rebuttable presumption of alienage. The BIA rejected Thomas's claim that his birth on a military base in Germany rendered him a birthright citizen by virtue of the Fourteenth Amendment. Therefore, the BIA concluded that Thomas was removable and it dismissed the appeal. On April 22, 2014, Thomas filed a timely petition for review in this court. ...
"There are two sources of citizenship, and two only: birth and naturalization." Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir. 2006) (internal quotation marks omitted). "Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person 'born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.'" Miller v. Albright, 523 U.S. 420, 423-24 (1998) (quoting United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)). "Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress." Id. At the time of Thomas's birth, Congress extended birthright citizenship to children born abroad to one citizen
However, it is undisputed that Thomas was not a statutory birthright citizen because his father did not meet the physical presence requirement of the statute in force at the time of Thomas's birth.1 Id. Consequently, Thomas must rely on the Fourteenth Amendment, which provides, in relevant part, that "[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," U.S. Const. amend. XIV, S: 1, to sustain his claim that he is a birthright citizen. Thomas contends that the military base located in modern-day Germany where he was born was "in the United States" for purposes of the Fourteenth Amendment.
We disagree.

The Bustamante-Barrera v. Gonzales case isn't helpful either way, as it involves derivative citizenship, not citizenship by acquisition.

It seems Miller v. Albright, 523 U.S. 420, 423, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) is a primary source. Breyer, in dissent, cites Vattel.

Yet another. This one is accessible too, for a SCOTUS case. Good history on citizenship by acquisition.

WEEDIN, Commissioner of Immigration, v. CHIN BOW, 274 U.S. 657 (1927)

The United States contends that the proviso of section 1993, 'but the rights of citizenship shall not descend to children whose fathers never resided in the United States,' must be construed to mean that only the children whose fathers have resided in the United States before their birth become citizens under the section. It is claimed for the respondent that the residence of the father at any time in the United States before his death entitles his son whenever born to citizenship. These conflicting claims make the issue to be decided. ...
Mr. Horace Binney had written an article, which he published December 1, 1853, for the satisfaction of fellow citizens and friends, whose children were born abroad during occasional visits by their parents to Europe. 169 U. S. 665, 18 S. Ct. 456, 42 L. Ed. 890, 2 Amer. Law Reg. 193. He began the article as follows:

'It does not, probably, occur to the American families who are visiting Europe in great numbers, and remaining there, frequently for a year or more, that all their children born in a foreign country are aliens, and when they return home will return under all the disabilities of aliens. ...

The expression, 'the rights of citizenship shall descend,' cannot refer to the time of the death of the father, because that is hardly the time when they do descend. The phrase is borrowed from the law of property. The descent of property comes only after the death of the ancestor. The transmission of right of citizenship is not at the death of the ancestor but at the birth of the child