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  #21  
Old 24 January 2018, 12:36 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by Lainie View Post
"There are two prerequisites. . . "
Understand. I wonder if the language is to show that prior to 1790, the United States had no formal nationality statutes?
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  #22  
Old 24 January 2018, 12:39 PM
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Maybe, but again, what's the relevance of state of the law before 1790?
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  #23  
Old 24 January 2018, 12:42 PM
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Originally Posted by Lainie View Post
Maybe, but again, what's the relevance of state of the law before 1790?
Historical reference?

Certainly, it has no impact on any citizenship issues of today.

Sometimes the thinking in Foggy Bottom is rather mysterious.
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  #24  
Old 24 January 2018, 12:50 PM
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Originally Posted by Penny View Post
Hey, that's interesting. I'm the Australian mother of an Australian baby, conceived and born in Australia, to sperm from an anonymous donor somewhere in the US. I had thought that not having the donor on the birth certificate would rule out any form of US citizenship, but the quote you gave and the official website both speak of biology/genetic parenthood rather than birth certificate parenthood.

So my kid might actually be a US citizen without knowing it?
Very possible, provided the sperm donor is a qualifying US citizen and agrees to the DNA testing.

Looks like 7 FAM 1100 APPENDIX A - DEOXYRIBONUCLEIC ACID (DNA) TESTING AND CITIZENSHIP might be the guiding document along with 7 FAM 1130.


Note the dates on the changes. I don't have any idea is anything is retroactive or not. Also, based on the dates of changes to sections of the FAMs, it does appear that guidance changes, perhaps in reaction to both advances in medical testing or legal rulings.
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  #25  
Old 24 January 2018, 01:40 PM
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Originally Posted by UrbanLegends101 View Post
Just curious, how would you rewrite:
Since 1790, there have been two prerequisites for transmitting U.S. citizenship at birth to children born abroad?
It seems pretty obvious they should, if they really need to mention dates, start with the correct date, (whichever it is 1934 or 1952) because, in point of fact, people born before 1934 (or whichever) to a US citizen mother may not be eligible. Otherwise what is the point of saying "Since 1790" at all? The law of 1790 became obsolete in 1795! The only useful thing is, as you say, it recognizes what was obviously never in dispute which is that certain people (including some not born in US territory) are recognized as citizens at birth but saying "Since 1790" implies it depends on whether one is a slave, Indian, Asian... etc. and most of the actual relevant changes to include those people took another century (or much more in some cases)... I mean, it honestly reads like revisionism. So I wouldn't rewrite it at all. Erase and start over.
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  #26  
Old 24 January 2018, 01:42 PM
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It might be helpful to clarify some things, UL101.

There are federal statutes that govern immigration. These are the ones cited with xx USC section yyyy. In addition, there are federal regulations, which are also laws, but they generally need to be consistent with the statutes. They have citations like xx CFR yy. Then there is the FAM, which I'm not sure, but it looks to me like it is a document from the State Department containing its interpretation of the various laws. In some instances, in a court case, that interpretation will be given some deference, but it's not guaranteed, and it has limits -- the interpretation can still be wrong.

In my arguments in this thread, I understand that it is the interpretation and current policy of the State Department to do what it is doing in the OP. My criticism is that the interpretation of the statutes is wrong, in that they do not inherently require this, and that regardless, it is bizarre to have this as a policy, even if the regulations involved are not invalid.
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  #27  
Old 24 January 2018, 01:43 PM
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Originally Posted by UrbanLegends101 View Post
Correct. What I think is the sticking point with the State Department is in the case of the Italian mother, the mother is not a US citizen, therefore the mother cannot transmit US citizenship to the child at birth.
But one of that child's two mothers is a US citizen.

The sticking point appears to be that, although a child born while a mixed-sex marriage is in effect is assumed to be the child of both marriage partners, the child of a same-sex marriage is not being allowed the same assumption.

One part of the law has changed; and the rest of the law needs to change to accomodate it. Otherwise, the marriages of people who are the same gender aren't being treated equally with the marriages of people who are different genders.

-- I suppose they could treat them all equally by requiring DNA testing of all children born outside the USA whose parents are claiming USA citizenship for them, no matter what genders the parents are; but to extend the presumption of parenthood to marriage partners in all cases seems to me to be massively simpler, all the way around. Among lots of other complications, what would they do in cases in which the child's DNA tests as unrelated to the marriage partner, but the actual genetic parent is unknown?
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  #28  
Old 24 January 2018, 02:30 PM
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I think the sticking point is that the biological parantage is less certain in mixed gender couples and so may agents default to assuming both people are the parents. Similar issues may happen with mixed gender couples if the child does not appear to be of the same race. For example, if a mixed gender Japanese couple have a child who appears to be black, they might have the same issue.
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  #29  
Old 24 January 2018, 02:38 PM
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Originally Posted by thorny locust View Post
Among lots of other complications, what would they do in cases in which the child's DNA tests as unrelated to the marriage partner, but the actual genetic parent is unknown?
What they would do is deny citizenship, because the burden is on the applicant to prove entitlement to citizenship.

But the reason they should not make the treatment equal by requiring DNA testing for all is that it is a very very stupid system. Imagine a married straight couple who live abroad. The wife is not a US citizen, the husband is. They have 3 children. One is the biological child of both parents, conceived naturally. One is conceived via donor insemination, because of infertility issues. One is conceived using IVF and donor eggs and husband's sperm due to the same infertility issues.

Child 1 is a citizen by birth. Child 2 is not. Child 3 would have to have a DNA test to prove paternity, but would be a citizen. And, if you swapped the citizenship of the parents, making wife the US citizen, they would all 3 be citizens.

What is the point of requiring genetic or biological relationship rather than legal parentage? We are concerned with only passing citizenship to children with American genes? Rather than recognizing American families, and letting American parents bring their children, who are unmistakably their children, back to their home country as citizens? What is the interest in requiring a biological connection where the legal parentage is very clear?

I understand that a different set of rules might be necessary for children born out of wedlock due to legal parentage laws being different. But even then, it would not be necessary to require a genetic connection.
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  #30  
Old 24 January 2018, 03:04 PM
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But the reason they should not make the treatment equal by requiring DNA testing for all is that it is a very very stupid system.
Agreed. For all the reasons you gave.
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  #31  
Old 24 January 2018, 04:11 PM
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Quote:
Originally Posted by erwins View Post
What they would do is deny citizenship, because the burden is on the applicant to prove entitlement to citizenship.

But the reason they should not make the treatment equal by requiring DNA testing for all is that it is a very very stupid system. Imagine a married straight couple who live abroad. The wife is not a US citizen, the husband is. They have 3 children. One is the biological child of both parents, conceived naturally. One is conceived via donor insemination, because of infertility issues. One is conceived using IVF and donor eggs and husband's sperm due to the same infertility issues.

Child 1 is a citizen by birth. Child 2 is not. Child 3 would have to have a DNA test to prove paternity, but would be a citizen. And, if you swapped the citizenship of the parents, making wife the US citizen, they would all 3 be citizens.

What is the point of requiring genetic or biological relationship rather than legal parentage? We are concerned with only passing citizenship to children with American genes? Rather than recognizing American families, and letting American parents bring their children, who are unmistakably their children, back to their home country as citizens? What is the interest in requiring a biological connection where the legal parentage is very clear?

I understand that a different set of rules might be necessary for children born out of wedlock due to legal parentage laws being different. But even then, it would not be necessary to require a genetic connection.
Are you sure you don't want to offer your services in these cases? This is an excellent argument to be made at the trial.
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  #32  
Old 24 January 2018, 04:43 PM
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Originally Posted by erwins View Post
It might be helpful to clarify some things, UL101.

There are federal statutes that govern immigration. These are the ones cited with xx USC section yyyy. In addition, there are federal regulations, which are also laws, but they generally need to be consistent with the statutes. They have citations like xx CFR yy..

And we may very well have conflicts between the Congressional Acts, federal statutes and federal regulations. It would seem that if there are conflicts, they would be resolved either by action by the appropriate agencies involved or by actions in the court system.




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Originally Posted by erwins View Post
Then there is the FAM, which I'm not sure, but it looks to me like it is a document from the State Department containing its interpretation of the various laws. In some instances, in a court case, that interpretation will be given some deference, but it's not guaranteed, and it has limits -- the interpretation can still be wrong.
You are correct, the Foreign Affairs Manual is the guidance for the consular officers, in the case of determining US citizenship for a child born outside the United States.

As I understand it, when parents go to the US embassy or consulate to register the birth of a child born outside the US, for the CRBA, it is the Foreign Affairs Manual which the consular officers will use for that guidance and determination. If the child is considered a US citizen at birth, according to the FAM, then the State Department would issue the Consular Report of Birth Abroad (CRBA). I suspect few parents would challenge this situation.

If the ruling by the consular section is that the child's birth situation does not meet the State Department criteria, then it is always the option of the parent(s) to go to court.

As I see it in the specifics of this couple in the original post, they had decided to challenge the State Department's decision. On this action, I think we can agree it is their right to do so. How far the case will go? Have no idea. If the courts rule in favor of the parents, I would think the State Department will revise the FAM to comply with a court ruling for future similar cases. If the State Department's ruling prevails, then it would seem the FAM remains the same. Another possibility is that State Department is found to be correct in the current interpretation of the INA, as amended, but supportive members of Congress could introduce a bill to further amend the INA to resolve the issue in favor of the parents in this case. That action, if passed into law, would force State Department to amend the FAMs to comply.


I have no idea of how many challenges have been ruled in favor of the parent(s).


Quote:
Originally Posted by erwins View Post
In my arguments in this thread, I understand that it is the interpretation and current policy of the State Department to do what it is doing in the OP. My criticism is that the interpretation of the statutes is wrong, in that they do not inherently require this, and that regardless, it is bizarre to have this as a policy, even if the regulations involved are not invalid.
I understand your position. The FAMs aren't written in a vacuum. Since they are the policy guidance for State Department (and other foreign affairs agencies) actions generally outside the United States, the FAMs have been cleared by the legal folks in the State Department for compliance with US law and eliminates the need for the consular staffs to also have legal training to make sure State Department actions are legal and that State Department policies are also within the guidance of the intent of the Congress. The FAM even addresses procedures if the consular officer is unsure and requires additional assistance from State Department in Washington, the consular section will do so. I suspect, but I don't know for a fact, that as soon as State Department became aware of this legal action, the consular staff has forwarded all relevant documentation to DC for review, if it had not already been done.

Are they - the FAMs - wrong? Sometimes. Actually, there is a State Department process for correcting the FAMs, if written wrong. In the long term, I think it will be up to the legal system to determine if State Department's interpretation is or is not correct.

Last edited by UrbanLegends101; 24 January 2018 at 04:54 PM.
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  #33  
Old 24 January 2018, 05:13 PM
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Originally Posted by ganzfeld View Post
It seems pretty obvious they should, if they really need to mention dates, start with the correct date, (whichever it is 1934 or 1952) because, in point of fact, people born before 1934 (or whichever) to a US citizen mother may not be eligible..
The correct date is 1790. Prior to 1790, the United States had no law addressing the issue. After 1790 and continuing through today, it appears the two requirements remain.



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Originally Posted by ganzfeld View Post
Otherwise what is the point of saying "Since 1790" at all? The law of 1790 became obsolete in 1795! ..
Correct, the 1790 law was replaced in 1795. But the question remains, did the 1795 statute change the requirement for a child born outside the Untied States to have a US citizen parent and that US citizen parent meet the residence or physical presence in the United States requirement? Has any revision of US law on this issue ever eliminated the two requirements? It is my understand while the physical presence requirements have changed over the years, they have never been reduced to zero, not withstanding that there have been modifications to the law, which credit service time outside the United States to be considered meeting the physical presence requirement.







Quote:
Originally Posted by ganzfeld View Post
The only useful thing is, as you say, it recognizes what was obviously never in dispute which is that certain people (including some not born in US territory) are recognized as citizens at birth but saying "Since 1790" implies it depends on whether one is a slave, Indian, Asian... etc. and most of the actual relevant changes to include those people took another century (or much more in some cases)... I mean, it honestly reads like revisionism. So I wouldn't rewrite it at all. Erase and start over.
Yes, I agree with you the laws have changed. Generally, most US nationality laws are not retroactive. What law is in effect when the child is born outside the United States determines the US citizenship status at birth. Certain exemptions have been made for US territory, and yes, the Congress has not always been fair to those born in the United States, particularly those from Africa during slavery and Native Americans.

In regards to "since 1790" the question becomes, well, two fold:

In what years between 1790 and now has a child born outside the United States ever been considered a US citizen at birth if neither parent is a US citizen?

In what years between 1790 and now has a child born outside the United States to a US citizen parent and that child considered a US citizen at birth, if the US citizen parent had not met the physical presence in the United States requirement?

I think the answer is at no point.
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  #34  
Old 24 January 2018, 06:02 PM
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Originally Posted by ganzfeld View Post
It seems pretty obvious they should, if they really need to mention dates, start with the correct date, (whichever it is 1934 or 1952) because, in point of fact, people born before 1934 (or whichever) to a US citizen mother may not be eligible..
The correct date is 1790. Prior to 1790, the United States had no law addressing the issue. After 1790 and continuing through today, it appears the two requirements remain.



Quote:
Originally Posted by ganzfeld View Post
Otherwise what is the point of saying "Since 1790" at all? The law of 1790 became obsolete in 1795! ..
Correct, the 1790 law was replaced in 1795. But the question remains, did the 1795 statute change the requirement for a child born outside the Untied States to have a US citizen parent and that US citizen parent meet the residence or physical presence in the United States requirement? Has any revision of US law on this issue ever eliminated the two requirements? It is my understand while the physical presence requirements have changed over the years, they have never been reduced to zero, not withstanding that there have been modifications to the law, which credit service time outside the United States to be considered meeting the physical presence requirement.







Quote:
Originally Posted by ganzfeld View Post
The only useful thing is, as you say, it recognizes what was obviously never in dispute which is that certain people (including some not born in US territory) are recognized as citizens at birth but saying "Since 1790" implies it depends on whether one is a slave, Indian, Asian... etc. and most of the actual relevant changes to include those people took another century (or much more in some cases)... I mean, it honestly reads like revisionism. So I wouldn't rewrite it at all. Erase and start over.
Yes, I agree with you the laws have changed. Generally, most US nationality laws are not retroactive. What law is in effect when the child is born outside the United States determines the US citizenship status at birth. Certain exemptions have been made for US territory, and yes, the Congress has not always been fair to those born in the United States, particularly those from Africa during slavery and Native Americans.

In regards to "since 1790" the question becomes, well, two fold:

In what years between 1790 and now has a child born outside the United States ever been considered a US citizen at birth if neither parent is a US citizen?

In what years between 1790 and now has a child born outside the United States to a US citizen parent and that child considered a US citizen at birth, if the US citizen parent had not met the physical presence in the United States requirement?

I think the answer is at no point.
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  #35  
Old 24 January 2018, 06:35 PM
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Originally Posted by Penny View Post
Hey, that's interesting. I'm the Australian mother of an Australian baby, conceived and born in Australia, to sperm from an anonymous donor somewhere in the US. I had thought that not having the donor on the birth certificate would rule out any form of US citizenship, but the quote you gave and the official website both speak of biology/genetic parenthood rather than birth certificate parenthood.

So my kid might actually be a US citizen without knowing it?
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Originally Posted by UrbanLegends101 View Post
Very possible, provided the sperm donor is a qualifying US citizen and agrees to the DNA testing.
Might be tricky, for an anonymous donor.

But if true, it makes me think there's a new opportunity here: mass exportation of donated U.S. sperm to foreign countries. Women/couples can start having their "anchor babies" without even having to come here first!

I bet offering that service would get the law changed quickly...
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  #36  
Old 24 January 2018, 07:17 PM
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Originally Posted by UrbanLegends101 View Post
In what years between 1790 and now has a child born outside the United States ever been considered a US citizen at birth if neither parent is a US citizen?
The point is the multitude who were were not based on the same criteria. It's a lie of omission.

Also, you still didn't answer my question: What is the point of saying "since 1790"? So that any white, non-indentured servant, born to a US father, who is 225 years old can now claim their rightful citizenship? To confuse people born outside the US to US mothers (only) before 1934?
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  #37  
Old 24 January 2018, 08:02 PM
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The point is the multitude who were were not based on the same criteria. It's a lie of omission.

Also, you still didn't answer my question: What is the point of saying "since 1790"? So that any white, non-indentured servant, born to a US father, who is 225 years old can now claim their rightful citizenship? To confuse people born outside the US to US mothers (only) before 1934?
Again, I can only guess that it was to show that prior to 1790, the United States had no formal procedure to give US citizenship to children born outside the United States and that from 1790 until now, for a child born outside the United States, one parent had to be a qualifying US citizen for the child to be a US citizen at birth. The definition of a qualifying US citizen changed over the years, as you point out.


Frankly, that is what it is all about. Nothing else matters.

I don't see any confusion. Seems rather clear to me. If neither parent is a US citizen, a child born to those parents is not a US citizen at birth. I am not sure how to read it any other way.

Yes, I understand it rubs wrong that the law of the time specified only certain groups of residents of the United States could transmit US citizen, but I am not sure we can go back in time and make any changes. It just happens to be a part of United States history. At least we have changed US law to correct for it.

I just don't know how else to answer it.
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  #38  
Old 24 January 2018, 08:11 PM
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Prior to 1790 the US had no procedure to give anyone citizenship. The constitution doesn't say anything about not being an Indian or an indentured servant and so forth. So unless one is saying that between its ratification and 1790 some people had citizenship but those rights were removed, it makes no sense at all.
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Originally Posted by UrbanLegends101 View Post
I don't see any confusion. Seems rather clear to me. If neither parent is a US citizen, a child born to those parents is not a US citizen at birth. I am not sure how to read it any other way.
But that's not what it says! You just answered your own question of how to rewrite it that makes more sense and is actually a true statement (as far as I can tell). If that is indeed what it is intended to say. It's not clear at all what is meant by invoking 1790.
Quote:
Yes, I understand it rubs wrong that the law of the time specified only certain groups of residents of the United States could transmit US citizen, but I am not sure we can go back in time and make any changes.
This is not about what happened then. It's about something that is on the Internet now.
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  #39  
Old 24 January 2018, 08:31 PM
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I don't see any confusion. Seems rather clear to me. If neither parent is a US citizen, a child born to those parents is not a US citizen at birth. I am not sure how to read it any other way.
There appears to be current legal confusion about the definition of "parent".

-- actually, there appears to have been previous confusion, if not legally, than about any sensible definition of the word, if a mother in all the senses of genetic, womb, and parenting didn't count as a parent until 1934. Not to mention that the legal husband of a woman who gave birth to a child during the marriage was considered to be the father, even if he had nothing to do with the conception at all, and had had little or nothing to do with the caretaking.

But in any case there is certainly confusion now: partly due to same-sex marriage now being legal, and partly technologically, as the genetic mother can now be a different person from the womb mother (and, I suspect, the mitochrondial genetic mother from the nuclear genetic mother; if that's not technologically possible to separate now, I bet it will be shortly. For that matter, if it's not technologically or legally possible now to edit the nuclear DNA with DNA from yet another parent, of any sex, I suspect that it will eventually be possible.)

Again, the specific confusion in this specific case has to do with assuming that the male parent of a mixed-gender marriage can always be considered the legal father of any child of the female marriage partner unless somebody jumps up and shouts otherwise; while assuming that one of the parents in a same-gender marriage can never considered the legal parent of any child of the other parent unless an adoption has intervened after the birth of the child. That does not treat the two marriages equally.

(Or, I suppose, unless genetic editing has occured so that both of them have some genes involved in the matter; in which case one child might possibly have quite a few legal parents. And exactly how many genes would a person have to contribute in order to gain citizenship, anyway?)

[note: one paragraph edited almost immediately to clarify sources of confusion]
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  #40  
Old 24 January 2018, 08:47 PM
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And also, to answer one of your questions:
Quote:
In what years between 1790 and now has a child born outside the United States ever been considered a US citizen at birth if neither parent is a US citizen?
Many if not most citizens in 1790 and thereafter were neither born in the US nor were children of any US citizens because the US didn't exist when they were born. So the answer is every year. How wrong does the statement need to be before we just admit it's wrong. (Leaving the question mark off that one. That one is rhetorical )
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