Liberty and justice for all United States persons abroad

The Isaac Brock Society

Posted on by Posted in Issues regarding US persons abroad 24 Comments

cross-posted from the citizenshipsolutions blog

by John Richardson

**********

Prologue:U.S. citizenship is not as attractive as it was

One benefit of U.S. citizenship: If one is a U.S. citizen then one cannot be deported from the USA

Some Green Card holders become U.S. citizens. Some do NOT become U.S.
citizens. Many of those Green Card holders become U.S. citizens in order to avoid the possibility of deportation. Deportation results in expatriation and can (among other things) subject the unfortunate Green Card holder to the S. 877A Expatriation Tax, which can result in significant confiscation of assets. In fact, the S. 877A Expatriation Tax discourages people from seeking Green Cards in the first place. That said, it is only Green Card Holders who are “long term residents” who are subject to the Exit Tax.

The plight of Mr. Morales-Santana: No U.S. citizenship = the possibility of deportation

The facts as described by the court:

In 2000, the Government sought to remove Morales-Santana based on several criminal convictions, ranking him as alien because, at his time of birth, his father did not satisfy the requirement of five years’ physical presence after age 14. An immigration judge rejected Morales-Santana’s citizenship claim and ordered his removal. Morales­ Santana later moved to reopen the proceedings, asserting that the Government’s refusal to recognize that he derived citizenship from his U. S.-citizen father violated the Constitution’s equal protection guarantee.

To be deported or not to be deported – it depends on Mr.Morales-Santana’s claim to U.S. citizenship

In order to avoid deportation, Mr. Morales-Santana needed to establish that he was a U.S. citizen.

In order for the U.S. Government to deport Mr. Morales-Santana, it needs to establish that he was NOT a U.S. citizen.

If you wanted to argue that Mr. Morales-Santana was a U.S. citizen, then how would you make the argument?

Facts: Mr. Morales-Santana was born (1) outside the USA and (2) out of wedlock. He was NOT born to a U.S. citizen parent who met the U.S. “physical presence requirements” to transmit U.S. citizenship! How could he then be a U.S. citizen?

Hmmmmmm ….

Interesting. Since Mr. Morales-Santana was NOT “Born In The USA”, we need look to the Immigration and Nationality Act to determine his claim to U.S. citizenship.

Under what circumstances do people born out of wedlock to U.S. citizen parent(s) have the right to U.S. citizenship?

According to the Immigration and Nationality Act:
 
8 U.S. Code § 1401 – Nationals and citizens of United States at birth

The following shall be nationals and citizens of the United States at birth:
 
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:

(JR Comment: Note that at the time of Mr. Morales-Santana’s birth, the statute required a physical presence of 10 years with at least 5 years after the age of 14.)

8 U.S. Code § 1409 – Children born out of wedlock

(a) The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if—

(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person’s birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years—
(A) the person is legitimated under the law of the person’s residence or domicile,
(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent court.

(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

 
As explained by U.S. Foreign Service Officer Amelia Shaw in “Citizenship and Unwed Border Moms: The Misfortune Of Geography“, Section 1409(c) creates the following two kinds of differentiation in treatment:

1. Marital Status: A child born outside the United States to an unmarried mother has an easier claim to U.S. citizenship than a child born outside the United States to a married mother (a marriage penalty); and

2. Gender: If a child is born outside the United States to an unmarried couple, the unmarried mother can pass U.S. citizenship more easily to the child than can the unmarried father (a gender penalty – The mother need only establish continuous physical U.S.
presence for a period of one year.) This distinction (based on the sex of the parent) was what was attacked in the Morales case.

What??? In other words, if a child is born abroad and out of wedlock the mother can transmit U.S. citizenship if she has one year of continuous physical presence in the USA and the father is held to a standard of longer residence. Isn’t this discrimination?

Following this reasoning, the argument made by Mr. Morales-Santana was that:

1. At the time he was born, his U.S. citizen father could NOT transmit U.S. citizenship to him because he was held to the longer standard of residence (5 years after the age of 14) than would have been required of any U.S. citizen mother (one year of continuous residence). Mr. Morales-Santana’s father did meet the test of “one year of continuous residence” that would have applied to the mother.

2. The fact that Mr. Morales-Santana’s mother was NOT a U.S. citizen at the time of his birth was irrelevant. If she had been a U.S. citizen at the time of his birth the law would have allowed her to transmit citizenship and discriminated against Mr. Morales-Santana’s father who was NOT able to transmit citizenship.

So, Mr. Morales-Santana went off to court to argue that:

1. The nationality laws (discriminated) violated the equal protection rights of his father because if the father had been the mother, the father would have satisfied the requirements to transmit U.S.citizenship to Mr. Morales-Santana (the father did meet the one year continuous residence requirement).

2. The proper remedy was to give Mr. Morales-Santana’s father the benefit of the rule that would have applied to the mother and grant Mr. Morales-Santana U.S. citizenship.
 
Round 1 – Mr. Morales-Santos and the 2nd Circuit – The argument worked. Mr. Morales-Santana had U.S. citizenship conferred on him
 


 
The above tweet references an analysis that appeared at the Isaac Brock Society discussing this case. The 2nd Circuit held that:

  • the rule giving a preference to the unmarried mother
    violated “equal protection”; and
  • as a result Mr. Morales-Santana’s father was given the
    opportunity to transmit his U.S. citizenship to Mr.
    Morales-Santana. In other words, the 2nd Circuit conferred U.S.
    citizenship on Mr. Morales-Santana.

 
Round 2 – Mr. Morales-Santana and the U.S. Supreme Court
 
A video of the live argument, fascinating …
 


 
The decision of the U.S. Supreme Court
 


 
The above tweet references the decision of the Supreme Court which (1) allowed Mr. Morales-Santana’s claim based on “equal protection” violations but (2) did NOT confer U.S. citizenship on him.

The decision of the U.S. Supreme Court – A summary

On June 12, 2017 the Supreme Court of the United States issued its ruling in the Morales-Santana case. The ruling, written by Justice Ginsburg, DID NOT extend U.S. citizenship (avoiding the creation of a new U.S. “tax subject”) to Mr. Morales-Santana.

The Supreme Court’s narrow ruling is of particular interest and is of possible significance for reasons that include:

1. The court made NO mention of any of the obligations of U.S.
citizenship (military service or taxation). Although this is not particularly surprising, it does reinforce the distinction between “who you are” and “what you are required to do”. It’s almost as though there is a “fire wall” around the Immigration and Nationality Act.

2. When considering the purpose of giving a “citizenship preference” to unwed mothers, the Court:

  • considered the context, cultural assumptions and societal
    norms in which the law was enacted; and
  • considered whether those assumptions and societal norms were
    still valid.

 
This is of interest to Americans abroad who are interested in challenging Cook v. Tait.

There has been considerable discussion about the 1924 Supreme Court decision in
Cook v. Tait. The 1924 Judgment in Cook v. Tait, written by Justice McKenna,
suggests that the U.S. Government “by its very nature” benefits its citizens regardless of where they be. Almost 100 years later, there are few Americans abroad, who believe that the U.S. Government benefits them!

3. The court had no problem in ruling that the “benefit” extended to “unwed” U.S. citizen mothers and NOT to “unwed” U.S. citizen fathers violated the “equal protection” guarantees in the U.S. Constitution. The court analyzed the discrimination according to the level of “strict scrutiny”. As a result the Government had the burden of proving the necessity of treating unwed mothers differently from unwed fathers. The Government could not meet that standard of proof. Put it another way: The court ruled that the benefit extended to unwed mothers at the expense of unwed fathers, violated the principle of equal protection. The discrimination against Mr. Morales-Santana’s father was impermissible. The question is what should the remedy be?

4. After deciding that there was a violation of the principle of “equal protection”, the court had two options.

Option 1: The court could extend the benefit of “continuous residence of one year” to the father and keep the benefit to unwed mothers intact.

Option 2: The court could END the benefit to unwed mothers and require every person to meet the same test”.

The Court ended the rule that unwed U.S. citizen mothers could transmit U.S. citizenship after one year of continuous residence in the USA (INA 1409(c)). The question is why?

Q. Why did the court elect to NOT extend the more favourable treatment to the father?

A. The court (and this is where it gets really interesting) in deciding to NOT extend citizenship to Mr. Morales-Santana relied on the (presumed Congressional view) that the grant of citizenship should be tied to a connection (including physical) to the United States. (Many people intuitively equate U.S. citizenship with U.S. residence and vice-versa. Additionally, the Internal Revenue Code generally equates “physical presence as a condition for being required to file U.S. taxes“.) This is good news for the growing number of proponents of the view that being
“Born In The USA” should NOT be sufficient grounds for automatically becoming a U.S. citizen.

5. Justices Thomas and Alito (in a separate judgement) stated that the Court has NO jurisdiction to confer U.S. citizenship on any person (including those born outside the United States). Conferring citizenship can be done ONLY by Congress (or presumably by the 14th Amendment).

6. The court says nothing about the question (of interest to those outside the United States) of whether the granting of U.S. citizenship to those born outside the United States is mandatory or optional. This is not surprising because Mr. Morales-Santana WANTED U.S. citizenship.(As a U.S. citizen he would NOT be subject to deportation.) The “mandatory” or “optional” question has been the subject of extensive discussion on various blogs.

7. The court essentially “struck down” the rule that unwed U.S. citizen mothers can transmit U.S. citizenship to children born abroad provided that, prior to the birth of the child, the mother had a 12 month continuous physical presence in the United States. (Immigration and Nationality Act 1409(c)).

In summary …

For Mr. Morales-Santana, there is good news and there is bad news.

First, the good news:

Mr. Morales-Santana was successful regarding the “equal protection claim”.

Second, the bad news:

Mr. Morales-Santana was NOT entitled to the “benefit” of his success in establishing his “equal protection claim”.

No U.S. citizenship for Mr. Morales-Santana!!!

John Richardson

_______________________________________________________________________

Appendix A- The complete decision and synopsis

The complete decision is here:

Morales 15-1191_2a34

The synopsis includes:

No. 15–1191. Argued November 9, 2016—Decided June 12, 2017

The Immigration and Nationality Act provides the framework for acquisition of U. S. citizenship from birth by a child born abroad, when one parent is a U. S. citizen and the other a citizen of another nation. Applicable to married couples, the main rule in effect at the time here relevant, 8 U. S. C. §1401(a)(7) (1958 ed.), required the U. S.-citizen parent to have ten years’ physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14. The rule is made applicable to unwed U.S.-citizen fathers by §1409(a), but §1409(c) creates an exception for an unwed U. S.-citizen mother, whose citizenship can be transmitted to a child born abroad if she has lived continuously in the United States for just one year prior to the child’s birth.

Respondent Luis Ramón Morales-Santana, who has lived in the United States since he was 13, asserts U. S. citizenship at birth based on the U. S. citizenship of his biological father, José Morales.José moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy §1401(a)(7)’s requirement of five years’ physical presence after age 14. There, he lived with the Dominican woman who gave birth to Morales-Santana. José accepted parental responsibility and included Morales-Santana in his household; he married Morales-Santana’s mother and his name was then added to hers on Morales-Santana’s birth certificate. In 2000, the Government sought to remove Morales-Santana based on several criminal convictions, ranking him as alien because, at his time of birth, his father did not satisfy the requirement of five years’ physical presence after age 14. An immigration judge rejected Morales-Santana’s citizenship claim and ordered his removal. Morales­-Santana later moved to reopen the proceedings, asserting that the Government’s refusal to recognize that he derived citizenship from his U. S.-citizen father violated the Constitution’s equal protection guarantee. The Board of Immigration Appeals denied the motion, but the Second Circuit reversed. Relying on this Court’s post-1970 construction of the equal protection principle as it bears on gender based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. To cure this infirmity, the Court of Appeals held that Morales-Santana derived citizenship through his father, just as he would were his mother the U. S. citizen.

Held:

1. The gender line Congress drew is incompatible with the Fifth Amendment’s requirement that the Government accord to all persons “the equal protection of the laws.” Pp. 6–23.

(a) Morales-Santana satisfies the requirements for third-party standing in seeking to vindicate his father’s right to equal protection. José Morales’ ability to pass citizenship to his son easily satisfies the requirement that the third party have a “ ‘close’ relationship with the person who possesses the right.” Kowalski v. Tesmer, 543 U. S. 125, 130. And José’s death many years before the current controversy arose is “a ‘hindrance’ to [José’s] ability to protect his own interests.” Ibid. Pp. 6–7.

(b) Sections 1401 and 1409 date from an era when the Nation’s lawbooks were rife with overbroad generalizations about the way men and women are. Today, such laws receive the heightened scrutiny that now attends “all gender-based classifications,” J. E. B. v.
Alabama ex rel. T. B., 511 U. S. 127, 136, including laws granting or denying benefits “on the basis of the sex of the qualifying parent,” Califano v. Westcott, 443 U. S. 76, 84. Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications declared unconstitutional in Westcott; Reed v. Reed, 404 U. S.71, 74, 76–77; Frontiero v. Richardson, 411 U. S. 677, 688–691; Weinberger v. Wiesenfeld, 420 U. S. 636, 648–653; and Califano v. Goldfarb, 430 U. S. 199, 206–207. A successful defense therefore requires an “ ‘exceedingly persuasive justification.’ ” United States v. Virginia, 518 U. S. 515, 531. Pp. 7–9.

(c) The Government must show, at least, that its gender-based “ ‘classification serves “important governmental objectives and that the discriminatory means employed” are “substantially related to [achieving] those objectives.” ’ ” Virginia, 518 U. S., at 533. The classification must serve an important governmental interest today, for “new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___. Pp. 9–14.

(1) At the time §1409 was enacted as part of the Nationality Act of 1940 (1940 Act), two once habitual, but now untenable, assumptions pervaded the Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the sole guardian of a nonmarital child. In the 1940 Act, Congress codified the mother-as-soleguardian perception for unmarried parents. According to the stereotype, a residency requirement was justified for unwed citizen fathers, who would care little about, and have scant contact with, their nonmarital children. Unwed citizen mothers needed no such prophylactic, because the alien father, along with his foreign ways, was presumptively out of the picture. Pp. 9–13.

(2) For close to a half century, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia, 518 U. S., at 533. No “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Caban v. Mohammed, 441 U. S. 380, 382, 394. In light of this equal protection jurisprudence, §1409(a) and (c)’s discrete duration-of-residence requirements for mothers and fathers are anachronistic. Pp. 13–14.

(d) The Government points to Fiallo v. Bell, 430 U. S. 787; Miller v. Albright, 523 U. S. 420; and Nguyen v. INS, 533 U. S. 53, for support.But Fiallo involved entry preferences for alien children; the case did not present a claim of U. S. citizenship. And Miller and Nguyen addressed a paternal-acknowledgment requirement well met here, not the length of a parent’s prebirth residency in the United States. Pp. 14–16.

(e) The Government’s suggested rationales for §1409(a) and (c)’s gender-based differential do not survive heightened scrutiny. Pp. 16– 23.

(1) The Government asserts that Congress sought to ensure that a child born abroad has a strong connection to the United States.The statute, the Government suggests, bracketed an unwed U. S.­ citizen mother with a married couple in which both parents are U.S. citizens because she is the only legally recognized parent at birth; and aligned an unwed U. S.-citizen father with a married couple, one spouse a citizen, the other, an alien, because of the competing national influence of the alien mother. This rationale conforms to the long-held view that unwed fathers care little about their children. And the gender-based means scarcely serve the suggested congressional interest. Citizenship may be transmitted to children who have no tie to the United States so long as their U. S.-citizen mother was continuously present in the United States for one year at any point in her life prior to the child’s birth; but it may not be transmitted by a U. S.-citizen father who falls a few days short of meeting §1401(a)(7)’s longer physical-presence requirements, even if he acknowledges paternity on the day the child is born and raises the child in the United States. Pp. 17–19.

(2) The Government also maintains that Congress wished to reduce the risk of statelessness for the foreign-born child of a U.S. citizen. But congressional hearings and reports offer no support for the assertion that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed U. S.-citizen mothers. Pp. 19–23.

2. Because this Court is not equipped to convert §1409(c)’s exception for unwed U. S.-citizen mothers into the main rule displacing §§1401(a)(7) and 1409(a), it falls to Congress to select a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, §1401(a)(7)’s current requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers. The legislature’s intent, as revealed by the statute at hand, governs the choice between the two remedial alternatives: extending favorable treatment to the excluded class or withdrawing favorable treatment from the favored class. Ordinarily, the preferred rule is to extend favorable treatment. Westcott, 443 U. S., at 89–90. Here, however, extension to fathers of §1409(c)’s favorable treatment for mothers would displace Congress’ general rule, the longer physical presence requirements of §§1401(a)(7) and 1409 applicable to unwed U. S.-citizen fathers and U. S.-citizen parents, male as well as female, married to the child’s alien parent. Congress’ “ ‘commitment to th[is] residual policy’ ” and “ ‘the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation,’ ” Heckler v. Mathews, 465 U. S. 728, 739, n. 5, indicate that Congress would likely have abrogated §1409(c)’s special exception, preferring to preserve “the importance of residence in this country as the talisman of dedicated attachment,” Rogers v. Bellei, 401 U. S. 815, 834. Pp. 23–28. 804 F. 3d 520, affirmed in part, reversed in part, and remanded.
 
Appendix B – All the documents related to the Morales-Santana case
 


 
Appendix C – The following tweet references one of the better articles on this case
 


 

24 thoughts on “Morales-Santana: SCOTUS Makes it Harder for People Born Abroad to U.S. Citizens to Become U.S. Citizens”

  2. #Bubblebustin

    I don’t know that this IS law. Seems what they have done amounts to neutralizing a section of 1409. And basically said Congress would have to write new legislation that would reflect the court’s findings.

    What I am curious about is does this mean that inside the U.S.’ own framework, the argument can now be used to dismiss “imposed” (or presumed) citizenship of a child born outside of the U.S. to a mother who spent one continuous year in the US

  4. Funny how the media spins this. Ginsberg “affirms equal dignity” etc., not “no citizenship for this poor Mexican bastard.”

  5. It is interesting the “preamble” article that was mentioned where fewer green card holders who are eligible are applying to become US citizens. For me the overriding issue after 24 years of US residency was that I felt I needed to be able to vote–it is just one of those responsibilities that adults are supposed to take on and I couldn’t vote without becoming a US citizen. I’m not just talking about the US presidency either–there are state and local ballot measures that affect myself and my friends and it was time to take a stand on those.

    There has been some back and forth debate on whether Canadians living abroad should vote as expats in Canadian elections. But–even if that right is affirmed–it affects only federal elections. Canadians have never been able to vote in provincial or local Canadian elections if they live abroad, and I do not believe there is any push to change that any time soon.

    For me becoming an American citizen wasn’t just about becoming an American but it was also about becoming a full fledged local member of the US community in which I live.

    Green card holders–once they’ve been green card holders for long enough–take the same tax hit, as noted in the article, as “covered expats” that US citizens do. I don’t yet have enough assets to be a “covered expat” but I waited until I was a long term green card holder to apply for US citizenship.

  6. @Zla’od

    Actually it appears that Mr. Morales-Santana is not Mexican on either side of his family. His father is Puerto Rican (i.e. American) and his mother is Dominican.

  8. In 1924, the Snyder Act extended US citizenship to American Indians (who previously had to naturalize, which meant leaving their tribes and living with whites). I wonder if there were any pockets of Indians (perhaps abroad) who protested this unilateral decision, or refused to accept US citizenship?

  9. “The following shall be nationals and citizens of the United States at birth:
    (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:”

    So if one parent is a US non-citizen national and the other parent is a US citizen, paragraph (g) doesn’t apply. Some other paragraph might apply but I’m too lazy to look it up.

    Anyay, the subsection in which (g) is a paragraph assigns both US nationality and US citizenship to the child. Contrast this with what comes next:

    “(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.”

    If the mother was a US national (citizen or not) then subsection (c) makes the child a US national but is silent on the matter of citizenship. Unless some other subsection or paragraph also applies, the child is a US non-citizen national. None of the persons involved had to go anywhere near a US possession to accomplish that.

    Let’s back up to Mr. Richardson’s statement:

    ‘In order to avoid deportation, Mr. Morales-Santana needed to establish that he was a U.S. citizen.’

    Well, US non-citizen nationals are deportable. Maybe Congress made some of them non-deportable but some are deportable.

    But what about US citizens? I don’t think the US constitution gives US citizens a right to reside in the US; it’s not like the Charter of Rights. US nationality law doesn’t. Is there some other law particular to US citizens?

    After that, some crackpot says:

    ‘1. Marital Status: A child born outside the United States to an unmarried mother has an easier claim to U.S. citizenship than a child born outside the United States to a married mother (a marriage penalty);’

    Born outside the US? And not moving there? And if not a US citizen, then allowed to bank and get a mortgage and not have to do enormously complicated computations of zeroes on US returns every year? Seems to me that’s the one who DOESN’T suffer a marriage penalty.

    Oh, the US Supreme Court shows how much they understand the matter:

    “The Immigration and Nationality Act provides the framework for acquisition of U. S. citizenship from birth by a child born abroad, when one parent is a U. S. citizen and the other a citizen of another nation.”

    The Immigration and Nationality Act doesn’t care how many parents (zero, one, or two) are citizens of another nation. It doesn’t even care if one or two parents are duals, it doesn’t care if one parent is stateless, and sometimes it doesn’t care if a parent is a citizen of a non-nation (some persons are citizens of American Samoa but not citizens of a nation).

    If the judges didn’t want to read the law, they should have denied cert.

  10. @Norman

    But what about US citizens? I don’t think the US constitution gives US citizens a right to reside in the US

    Presumably it comes from the 9th Amendment.

    Regardless of where it comes from, a U.S. citizen most certainly does have a right to reside in the U,S. This is so basic I cannot imagine the point of even questioning it.

  11. This entire Wikipedia article doesn’t contain the word “reside”:
    https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution

    “This is so basic I cannot imagine the point of even questioning it.”

    It doesn’t matter how basic it is. If the US constitution doesn’t say it then Congress can change laws however they want, like they did in the 1930’s when they made some US non-citizen nationals into aliens for the purposes of immigration and expulsion while keeping them non-citizen nationals for all other purposes.

    British overseas citizens don’t usually have the right of abode in the UK. Japan for a few years in the 1990’s wasn’t allowing immigration without guarantors of Japanese citizens who had been orphaned in the 1940’s in China — Japan relented later but not as a matter of constitution or law. It doesn’t matter how basic the idea is.

  13. @Norman

    Ok. Let’s say you are right and that we do not have the right to return to reside in the U.S.

    Then what benefits are there at all? The last three seemed to be:

    use of a consulate; garbage, we pay for services
    rescued by the Marines; totally debunked
    always can “go home” – apparently not.

    So now can we retire Cook v Tait?

  14. “Let’s say you are right and that we do not have the right to return to reside in the U.S.”

    I don’t know if “we” (where “we” doesn’t include you or me) have the right or not. I think the right doesn’t come from the US constitution but don’t know if it comes from somewhere else or if it doesn’t exist.

    The Canadian Charter of Rights does have that right, but it’s not complete. Canadian citizens don’t have the right to reside outside of Canada, and some who resided outside of Canada at the wrong time lost their Canadian citizenship and therefore lost the right to enter and reside in Canada.

    “So now can we retire Cook v Tait?”

    Only if we outrank people who hold the Orwellian job title of “Justice”.

  15. I think it’s pretty appalling to see people so desperate to keep the chain around their neck, while I’m still struggling to take mine off.

    I just don’t get it. Uncle Sam has one helluva sales pitch. Scream “Freedom!” and people will run like flies to their sticky honey death.

    US citizenship is like fly paper. If you have half a brain to see it for what it really is, you wouldn’t want it on you.

  16. “I think it’s pretty appalling to see people so desperate to keep the chain around their neck”

    For people who want to live in the US it isn’t a chain.

    Even for people who want to live in Puerto Rico it isn’t a problem, because residents of Puerto Rico get RBT. Residents of US territories are exempt from Cook v. Tait.

  17. If physical presence is the issue, why is that citizenship can be conferred by either parent if they are married and both US citizens, with only one having to “live” in the US for no specified length of time?

    Without levelling the playing field by extending the need for the greater physical presence to children born to two such US citizens (such as Calgary411’s son), it would appear that some children are being discriminated against by having only one parent who’s a US citizen.

  19. The result of Morales-Santana is anomalous. It becomes both harder and easier to be attributed U.S. citizenship on birth abroad depending on facts. Vice Consul Amelia Shaw wrote how marital/nonmarital birth could change the result, and how siblings born in Mexico could have different outcomes due to subsequent marriage https://duckduckgo.com/?q=amelia+shaw+tijuana+foreign+service+journal&atb=v58-5_a&ia=web

    Rev. Rul. 92-109, 1992-2 C.B. 3 https://t.co/XW2KCcGenO is clearer on the recognition by the IRS of the element of choice for affected persons than the older Rev. Rul. 75-357, PLR 8138071 https://groups.google.com/forum/#!topic/alt.lawyers/nFewRxuSV7w

    The difference for offspring born abroad is that the nonmarital one-year presence rule requires uninterrupted presence for 365 days, something unlikely in the case of families on the Canadian or Mexican border, whereas the marital five-year rule allows for breaks and allows for credit for time spent abroad as a dependent of a U.S. Government employee or military member. Of course proof of facts can be difficult; the U.S. Foreign Service Officers are not free from racial and cultural bias in deciding facts; and American Citizens Services in the State Department has said that they will give weight to a simple affidavit by the infant’s grandparent. That does not end the story of course since there are ways for the grandchild of a qualifying American citizen to obtain citizenship.

    More concerning for readers of this forum is that a badly drafted nationality law has, in some ways, been made worse, subjecting some infants to U.S. Personhood who might otherwise have avoided it. Those whose births were never registered with a U.S. consular office will have a secret liability: to PFIC, to FATCA to all the rest of the asset-reporting rules with draconian penalties for neglect and error.

    And there is the implication for fathers: does an “unwed father” include a sperm donor? The USA is a major exporter of “genetic material” although in most cases the resulting children will not have the right to know the father’s identity until age 18 (if ever), those who do may have younger siblings from the same father.

    Linda Greenhouse’s article on the case is good, but like the case itself, indeed almost all cases, it supposes that having American citizenship is an almost unqualifiedly good thing. Another analysis is here: https://verdict.justia.com/2017/06/14/supreme-court-rules-citizenship-must-equally-heritable-fathers-mothers There aren’t many immigration and nationality cases before the courts where the claimant seeks to disavow that citizenship from birth. There are a few where the State Department has canceled, or refused to renew, a passport based on allegations of fraud in the documentation, whether a U.S. birth certificate or registration of birth abroad. And especially in the cases of older mothers the State Department sometimes demands DNA proof of parentage. I have no doubt there have been administrative decisions in cases where the child of a diplomat has obtained a U.S. passport based on birth in the U.S. only to have it subsequently revoked, but such rulings aren’t public. A British consular officer told me of such a case he had ruled on in his work.

    Finally, Rios v. Civiletti is an entertaining read because there the father of a Mexican-born child was a deserter from the U.S. Army living in Mexico under a fake name.

  20. @Bubblebustin asked “At what point does this become law?”

    The case is referred back to the court of original jurisdiction for a ruling consistent with the SCOTUS judgment and subject to (possibly) other facts being relevant.

    As for the effect of the ruling on future, the judgment says that it is prospective only. That doesn’t mean that others cannot bring their own actions in Immigration Court if (for example) they want to be recognised as U.S. citizens and their unmarried mother met the 5-year residence rule but not the one-year presence rule: either because she was constantly crossing the border to Canada or Mexico (the issue Vice Consul Amelia Shaw encountered often) or because she qualifies as a dependent of a U.S. government employee or U.S. military member stationed abroad. I have known U.S. Department of Defense civilians who spent their entire careers abroad, perhaps married to a nonresident alien, and whose children were scarcely ever present in the USA.

    Lower courts will have to interpret the new SCOTUS rule as they see fit. It seems hardly likely — as commentators have noted — that a paralysed Congress will do anything soon.

    The judgment says “In the interim, as the Government suggests, §1401(a)(7)’s now-five year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers”. That of admittedly was not even an issue in the case (the mother was not a U.S. citizen) and it seems still to allow discrimination in relation to U.S.-citizen fathers. Unless I am missing something: Justice Ginsburg has ruled on something not even before the court.

    On the assumption that this forum is mainly followed by those who would like further restriction in the involuntary attribution of U.S. citizenship to “accidental Americans”, the judgment has a mixed result: because it eliminates the “uninterrupted” aspect of the former 365-day rule and substitutes for it a 5-year cumulative presence rule, it will attribute U.S. citizenship to some children who otherwise would not have it. And it will deny citizenship to some who would have: including children born abroad to certain accidental American mothers who spent only the first year of their lives in the USA. At a time when many unmarried women abroad are resorting to IVF to establish a family, this may be relevant.

    In a few minutes I am going to the playground with non-American child who, if born today, would be an American citizen because of this judgment.

  21. @Norman Diamond wrote: “Well, US non-citizen nationals are deportable. Maybe Congress made some of them non-deportable but some are deportable.”

    I’m not sure that’s true, and in fact I doubt it. It seems that Jay Treaty Canadian Native Peoples cannot be deported: http://ptla.org/wabanaki/facts-about-jay-treaty I haven’t found any precedent relating to Filipinos who entered before 1934 (it’s clear that Filipinos, even born in the Philippines before 1946, can be deported today (Rabang v. INS, 35 F3d 1449 9th Cir. 1994) but they were a sort of noncitizen national prior to independence. Native Americans were noncitizen protégés prior to 1924 and they couldn’t be deported. The Gordon Mailman Immigration Law treatise apparently says that (American Samoan and Swains Islander) noncitizen nationals can enter the United States freely, which presupposes immunity from deportation. (Cited in Matter of Ah San, Int. Dec. # 2388 (BIA 1975) https://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-65300/0-0-0-79842.html ) According to Wikipedia the population of Swains Island is 17.

    Should anybody care, there is an American Samoan High Court decision relating to taxation and noncitizen nationals who have, or have not, been naturalised as U.S. citizens. http://www.asbar.org/index.php?option=com_content&view=article&id=644:american-samoa-govt-naber-v&catid=50:1asr2d&Itemid=229

  22. “Well, US non-citizen nationals are deportable. Maybe Congress made some of them non-deportable but some are deportable.”

    ‘I haven’t found any precedent relating to Filipinos who entered before 1934 (it’s clear that Filipinos, even born in the Philippines before 1946, can be deported today (Rabang v. INS, 35 F3d 1449 9th Cir. 1994) but they were a sort of noncitizen national prior to independence.’

    Isn’t that what I said, non-citizen national. Philippine Independence Act, Public Law 73-127 (Tydings-McDuffie Act) in 1934 made citizens of the Philippine Islands who weren’t citizens of the United States to be considered aliens for the purposes of US immigration, exclusion, and expulsion. They continued to have status as US non-citizen national in all other ways.

    As far as I can tell from the Supreme Court’s ruling in Afroyim v. Rusk, the Supreme Court reinstated US nationality of every person who had been deprived of US nationality without their consent, not only US citizens. As far as I can tell, the Supreme Court reinstated US non-citizen nationality of Filipinos who were born on US territory in the Philippines (i.e. not those born on Japanese territory during around 3 years of the war unless they inherited US nationality from their parent(s), and not those born after actual Philippine independence unless they inherited US nationality from their parent(s)). But they’re still considered aliens for the purposes of US immigration, exclusion, and expulsion.

  23. @Norman Diamond

    There’s enough online and in books already about the alien status post 1946 of Filipinos and the green-card status of those present in the USA since before 1934 so I don’t need to add anything here. The New York Times article on the Tuana case https://mobile.nytimes.com/2016/06/08/opinion/are-american-samoans-american.html addresses the imperialism, racism and constitutional confusion regarding the Pacific (and other) territories and the SCOTUS Insular Cases of 1901 that apparently resolved nothing.

    Had it not been for the war the Philippines would have been given independence earlier. For, I think, the same motivation behind the Chinese Exclusion Act although maybe the Moro War was a factor too.

  24. Interesting observations, Andy05. Thank you.

    Not interested to his claim to US citizenship, one of my sons would prefer to accept the ruling retrospectively thank you very much!

Leave a comment

Your email address will not be published.

%d bloggers like this: