Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
abroad and not travel back to this country and have the child born abroad, and that the child in either case would have the same status as far as U.S. citizenship:
[T]he statute simply ensures equivalence between two expectant mothers who are citizens abroad if one chooses to reenter for the child’s birth and the other chooses not to return, or does not have the means to do so.[1]
Concerning the contention made in earlier cases that everyone who is made a citizen only by federal statute is a “naturalized” citizen (even those who are made citizens at birth by statute), it may be noted that the common understanding and usage of the terms “naturalized” and “naturalization,” as well as the precise legal meaning under current federal law, now indicate that someone who is a citizen “at birth” is not considered to have been “naturalized.”[2] Justice Breyer, for example, dissenting on other grounds in Miller v. Albright, explained that “this kind of citizenship,” that is, under “statutes that confer citizenship ‘at birth,’” was not intended to “involve[] ‘naturalization,’” citing current federal law at 8 U.S.C. Section 1101(a)(23).[3] 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,”[4] 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.”
The United States Court of Appeals for the Ninth Circuit has specifically recognized in a recent case that one may be a “natural born” citizen of the United Sates in two ways: either by being born in the United States, or by being born abroad of at least one citizen-parent who has met the residency requirement. In United States v. Carlos Jesus Marguet-Pillado, a case dealing with the propriety of an appeal based on requested jury instructions not given, the court stated:
No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements.[5]
Although the legal cases specifically concerning Senator McCain’s eligibility were generally dismissed for want of subject matter jurisdiction (that is, the lack of legal standing of the plaintiff),[6] a federal district court for the Northern District of California did note that Senator McCain would qualify as a citizen “at birth,” and thus was a “natural born” citizen, since he was born “out of the limits and jurisdiction of the United States” to U.S. citizen parents, as provided for in federal nationality statutes in force at the time of his birth.[7] The court found that the meaning of the phrase in the nationality statutes in force in 1936 (R.S. §1993 (1855) and 48 Stat. 797 (1934)), that is, the phrase “born out of the limits and jurisdiction of the United States” to
- ↑ 533 U.S. at 61. Emphasis added.
- ↑ Miller v. Albright, 523 U.S. at 480 (Breyer, J. dissenting (on other grounds)); Tuan Anh Nguyen, 533 U.S. at 72.
- ↑ Miller v. Albright, 523 U.S. at 480. 8 U.S.C. §1101(a)(23) now provides: “The term ‘naturalization’ means the conferring of nationality of a state upon a person after birth, by any means whatsoever.”
- ↑ Tuan Anh Nguyen, 533 U.S. at 72 (emphasis added), citing 8 U.S.C. §1101(a)(23).
- ↑ United States v. Carlos Jesus Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011).
- ↑ Hollander v. McCain, 566 F. Supp.2d 63 (D.N.H. 2008); Robinson v. Bowen, 567 F.Supp.2d 1144 (N.D. Cal. 2008).
- ↑ Robinson v. Bowen, 567 F.Supp.2d at 1146.
