Posted by Eugene Volokh:
Correction About Natural-Born Citizen Law:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1227910730
I'm afraid that I made a legal error in a conversation I had with a
Chicago Tribune reporter several weeks ago, and the error
understandably made its way into print. Now that I realize I've made
this error, I need to try to correct it. Just to make things clear up
front, I have no reason to doubt that [1]President-Elect Obama was
born in Hawaii, and is therefore a natural-born citizen. The legal
issue I discussed here is a based on the purely hypothetical question
of what would be the law if President-Elect Obama were not born within
the U.S. Nonetheless, I commented on this hypothetical question, in a
way that I now believe was incorrect, so I think I need to correct my
error.
The relevant passage is in a [2]Chicago Tribune story from Oct. 30,
2008:
Any person born in the U.S. automatically is a "natural born
citizen," said University of California Los Angeles law professor
Eugene Volokh.
Even if a person is born outside the United States, ... [a]t the
time Obama was born, the law stated that a person would be
considered a "natural born citizen" if either parent was a citizen
who had lived at least 10 years in the U.S., including five years
after the age of 14 -- in other words, 19.
Dunham was three months shy of her 19th birthday when Obama was
born. But subsequent acts of Congress relaxed the requirement to
five years in the U.S., including just two years after the age of
14, meaning Dunham could have been 16 and still qualified even if
Obama was born in another country, Volokh said. Congress made the
law retroactive to 1952, doubly covering Obama.
Any legal challenge would have to argue that Congress can't make
someone retroactively a citizen at birth, and prove Obama was born
outside of the U.S. after all.
My error came in misreading the last sentence in 8 U.S.C. � 1401(g):
(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: Provided, That any periods of
honorable service in the Armed Forces of the United States, or
periods of employment with the United States Government or with an
international organization as that term is defined in section 288
of Title 22 by such citizen parent, or any periods during which
such citizen parent is physically present abroad as the dependent
unmarried son or daughter and a member of the household of a person
(A) honorably serving with the Armed Forces of the United States,
or (B) employed by the United States Government or an international
organization as defined in section 288 of Title 22, may be included
in order to satisfy the physical-presence requirement of this
paragraph. This proviso shall be applicable to persons born on or
after December 24, 1952, to the same extent as if it had become
effective in its present form on that date;
I foolishly read the last sentence as applying to the entire
provision, � 1401(g); but the last sentence refers to the "proviso,"
and thus just to the clause that begins with "Provided." Public Law
89-770 enacted both the "Provided" and the last sentence mentioning
the "proviso," without repeating the first clause -- this supports the
view that the "proviso" refers only to the "Provided" clause.
Moreover, the change to "at least two of which were after attaining
the age of fourteen years" was made by Public Law 99-653, Nov. 14,
1986, which was enacted after the "Provided" clause and the last
sentence were added: "SEC. 12. Section 301(g) (8 U.S.C. 1401(g)) is
amended by striking out 'ten years, at least five' and inserting in
lieu thereof 'five years, at least two.'" Two years later, the
Immigration Technical Corrections Act of 1988, Public Law 100-525,
Oct. 24, 1988, provided:
(r) EFFECTIVE DATES. -- INAA [the Immigration and Nationality Act
Amendments of 1986 (Public Law 99-653)] is further amended by
adding at the end the following new section:
"EFFECTIVE DATES
"SEC. 23....
"(d) The amendment made by section 12 shall apply to persons born
on or after November 14, 1986.
So, as I now read 8 U.S.C. � 1401, "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" before Nov. 14, 1986 is a natural-born citizen only if
the citizen parent "was physically present in the United States or its
outlying possessions for a period or periods totaling not less than
ten years, at least five of which were after attaining the age of
fourteen years" -- the same rule that was in place in the early 1960s.
See also United States v. Flores-Villar, 497 F. Supp. 2d 1160, 1162-64
(S.D. Cal. 2007) (taking the same view and concluding the change from
ten years/five years to five years/two years only applied to people
born after 1986), aff'd, 536 F.3d 990 (9th Cir. 2008) (so assuming but
not discussing it in detail); Rico-Ibarra v. Mukasey, 281 Fed. Appx.
694, 695 n.1 (9th Cir. 2008) (not precedential).
I stress again that I post this only to correct what I now think was
my legal error. I am certainly not trying to assert that this law even
applies on the actual facts (as opposed to the hypothetical discussed
at the end of the newspaper article).
Please let me know whether my correction is itself incorrect, though I
hope I've gotten it right this time.
References
1.
http://www.politifact.com/truth-o-meter/article/2008/jun/27/obamas-birth-certificate-part-ii/
2.
http://www.cw11tv.com/pages/landing_election_news/?Obama-Hawaiian-born-Citizen-for-sure=1&blockID=125275&feedID=65
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