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  #41  
Old 24 January 2018, 10:14 PM
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I suppose it could just be to note that the law hasn't changed recently enough to be relevant. If that had been the law since, say, 1970 instead of 1790, that would immediately prompt the question of what laws applied to persons born before then.
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  #42  
Old 24 January 2018, 10:33 PM
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That's the point: It has changed recently enough to be relevant. It changed in 1924, 1934, and 1952. Some of those provisions did not apply to people born before those dates and some did. So there's not really any blanket statement that can be made for all people alive today. (See the discussion of McCain's citizenship at birth for one relevant example.)
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  #43  
Old 24 January 2018, 11:00 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by ganzfeld View Post
That's the point: It has changed recently enough to be relevant. It changed in 1924, 1934, and 1952. Some of those provisions did not apply to people born before those dates and some did. So there's not really any blanket statement that can be made for all people alive today. (See the discussion of McCain's citizenship at birth for one relevant example.)
I have not gone back through those changes, but what did not change was for a child born outside the United States, one of the parents had to be a qualifying US citizen for that child to be a US citizen at birth.

What has changed, as best as I can tell, is that the changes from 1924 to now expanded the categories of qualifying US citizen, particularly the 1934 change which codified that a qualifying US citizen mother could then transmit US citizenship to her child, if born outside the United States. What did not change, again, as best as I can tell, is that if the child does not have a qualifying US citizen parent, the child is not a US citizen at birth.


I disagree with you on the statement that there is no blanket statement that can be made for all people alive today. The blanket statement is that the US citizenship at birth status for a child born outside the United States is dependent upon whatever US law was on the day (and possibly time) of that birth and that at least one parent had to be a qualifying US citizen.

The example of a qualifying US citizen mother. A child born outside the United States prior to noon Eastern Standard Time on May 24, 1934, if only the mother was a US citizen, the child was not a US citizen at birth. If the birth occurred after noon Eastern Standard time, to the same
US citizen mother, the child is a US citizen at birth.

Similarly, if an 18 year old US citizen is the only US citizen parent of child born outside the United States, and the birth was between 12:01 a.m. EDT December 24, 1952, through midnight November 13, 1986, that child is not a US citizen at birth. Similarly, if the child was born after midnight, the morning of November 14, 1986, the child is a US citizen at birth.

Again, the common thread in all this is that the details which make a qualifying US citizen parent may change, but they were always in effect from 1790 to today.
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  #44  
Old 24 January 2018, 11:13 PM
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Originally Posted by UrbanLegends101 View Post
The blanket statement is that the US citizenship at birth status for a child born outside the United States is dependent upon whatever US law was on the day (and possibly time) of that birth and that at least one parent had to be a qualifying US citizen.
No, that is not correct. There were many laws that were made retroactive, from the mid-20th century right back to the constitution itself.
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  #45  
Old 24 January 2018, 11:52 PM
UrbanLegends101 UrbanLegends101 is offline
 
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And also, to answer one of your questions: 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.
Maybe I need to brush up on my US history, but are you suggesting the United States did not exist until after 1790?

I believe you are not looking at the Act of 1790 correctly. I do not believe it is applicable to anyone born outside the United States prior to the effective date of the legislation. and certainly, by 1790, the United States did exist.

It applies only to those children born outside the United States on or after March 26, 1790 or maybe only after March 26. That distinction, I don't know.

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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 )
Again, I respectfully disagree. My understanding is that it applies only to those born after the date of the act, March 26, 1790. I do not read that the act was effective and applied to any births prior to that date.

I can only guess that State Department uses 1790 in the prerequisite statement because that is the year when US codified the requirement. Prior to 1790, no idea, and I don't think State Department even addresses it.
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  #46  
Old 24 January 2018, 11:56 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by ganzfeld View Post
No, that is not correct. There were many laws that were made retroactive, from the mid-20th century right back to the constitution itself.
I believe in all cases, the legislation denotes it is retroactive.

From 7 FAM 1131.1-2 Applicable Statute:

The law applicable in the case of a person born abroad who claims citizenship is the law in effect when the person was born, unless a later law applies retroactively to persons who had not already become citizens. Instructions in 7 FAM 1130 will note when a law is retroactive.



I believe US law convention is that if the legislation does not discuss retroactive status, the effective date is the start of the new law and does not apply to births prior to that date.

As I noted with the November 1986 amendment:

(1) For children born prior to November 14, 1986, the U.S. citizen parent must have had ten years of physical presence, five of which were after reaching age 14, in the United States or its outlying possessions;

(2) For children born on or after November 14, 1986, to transmit citizenship the U.S. citizen parent needs five years of physical presence, two of which were after age 14, in the United States or one of its possessions.

It is not retroactive, for Congress did not want it to be retroactive.

I agree, there are laws which are retroactive and in the case of US citizenship at birth, unless stated to retroactive, nationality law is not.

Last edited by UrbanLegends101; 25 January 2018 at 12:08 AM.
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  #47  
Old 25 January 2018, 12:06 AM
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Originally Posted by UrbanLegends101 View Post
Maybe I need to brush up on my US history, but are you suggesting the United States did not exist until after 1790?
No. He's saying -- correctly -- that many people who were US citizens in 1790 were born before the United States existed.
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  #48  
Old 25 January 2018, 12:22 AM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by Lainie View Post
No. He's saying -- correctly -- that many people who were US citizens in 1790 were born before the United States existed.
Okay, understand and I agree. The point was that the 1790 act, as I understand it, applied only to those born in 1790, the effective date of the legislation and thereafter AND born outside the United States.

Yes, I agree that many people in the country in 1790 were born prior to the founding of the United States. I thought we were discussing the specifics of the requirements for transmitting US citizenship to children born outside the United States.

Is that clearer?

Last edited by UrbanLegends101; 25 January 2018 at 12:28 AM.
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  #49  
Old 25 January 2018, 12:48 AM
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About retroactivity, again, it's hit and miss. For example the fact that 1934 was not retroactive to children born abroad of a US mother and an alien father was specifically retroactively corrected in the 1990's. Whereas, just a few years later the same problem was repeated with the Child Citizenship Act, which was not retroactive to adults. I mean, there's really no blanket statement one can make that's both true and really useful, IMHO. But you can go on trying. I don't mind.

I don't really get what you want to say. I guess it's that there was some provision for citizenship of some people born abroad to some citizens since 1790. Not very helpful but, I guess, an interesting historical tidbit in a much longer history with many more important milestones.
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  #50  
Old 25 January 2018, 03:10 PM
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Has anyone verified this story? I ask because I saw (on Facebook; make of that what you will) the same basic story attached to a gay couple, i.e., two dads, two sons, only one son recognized as a citizen.

Seaboe
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  #51  
Old 25 January 2018, 03:33 PM
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That is also a separate case. https://www.nbcnews.com/feature/nbc-...in-s-u-n840661 There are multiple news stories from mainstream sources on each case, and it is clear from the State Department manual that has been cited and quoted here that it is the policy and practice of the State Department.
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  #52  
Old 25 January 2018, 03:34 PM
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Thanks, erwins.

Seaboe
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  #53  
Old 25 January 2018, 04:04 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by ganzfeld View Post
About retroactivity, again, it's hit and miss. For example the fact that 1934 was not retroactive to children born abroad of a US mother and an alien father was specifically retroactively corrected in the 1990's. Whereas, just a few years later the same problem was repeated with the Child Citizenship Act, which was not retroactive to adults. I mean, there's really no blanket statement one can make that's both true and really useful, IMHO. But you can go on trying. I don't mind.
Well, both true and really useful? I might agree. Again, just a point of historical note. But again, what is a blanket statement is that no child born outside the United States since 1790 has been a US citizen at birth, unless at least one parent was a US citizen at the time of the birth.


What I understand about State Department position on the issue of transmitting US citizenship to a child born outside the United States is that unless the law indicates changes are retroactive, whatever law was in effect at the time of the birth applies to that person. And yes, sometimes, the retroactivity is to repair an inequity, as perceived by the Congress.

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Originally Posted by ganzfeld View Post
I don't really get what you want to say. I guess it's that there was some provision for citizenship of some people born abroad to some citizens since 1790. Not very helpful but, I guess, an interesting historical tidbit in a much longer history with many more important milestones.
Yes, I would agree with you on the tidbit issue.

Another point on which I would agree is that US law still does not provide for US citizenship at birth for every child born outside the United States to a US citizen parent. There is still the physical presence requirement for the US citizen parent.

If a 15 year old US citizen married female married to an alien and today, gives birth to a child outside the United States before her 16th birthday, that US citizen cannot transmit US citizenship to the child. (Of course, if the genders were reversed, the outcome is the same, the child is still not a US citizen at birth. If that birth were before November 14, 1986, the magic age was 19, beginning in 1952.)


Prior to the passage of the Nationality Act of 1790, the United States had no statutory provision for the US citizenship at birth status for a child born outside the United States. And yes, it took from 1790 to 1934 to correct the inequality of the right of a US citizen mother to not have the same transmittal benefit to her child born outside the United States.



What State Department says, based on what is in 7 FAM 1131.2, is that for a child born outside the United States, in order for that child to be a US citizen at birth, at least one parent must be a US citizen at the time of that birth and that US citizen parent must have the required physical presence in the United States in order to transmit US citizenship to the child.

Again, based on my understanding, there has not been any child born outside the United States who is a US citizen at birth who did not have a US citizen parent. Further, that US citizen parent must meet whatever other requirements are in effect in US law at the time of the birth.


If neither parent is a US citizen, that child born outside the United States cannot be a US citizen at birth. That is the bottom line.

I realize there is much other discussion on the term parent, but so far, the State Department position is reflected in 7 FAM 1131.4-1 Establishing Blood Relationship. Pending cases are going to make this an interesting future discussion.

Last edited by UrbanLegends101; 25 January 2018 at 04:13 PM. Reason: Adding, changing...
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  #54  
Old 25 January 2018, 04:13 PM
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Embassies are considered sovereign territory of their country. Would a child born in a US embassy be a US citizen even if neither parent was a citizen?

[/hijack]
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  #55  
Old 25 January 2018, 04:23 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Quote:
Originally Posted by erwins View Post
That is also a separate case. https://www.nbcnews.com/feature/nbc-...in-s-u-n840661 There are multiple news stories from mainstream sources on each case, and it is clear from the State Department manual that has been cited and quoted here that it is the policy and practice of the State Department.
DOS has an interesting web page on Assisted Reproductive Technology (ART) and Surrogacy Abroad.

The results of these two very recent cases may have a major impact on children born outside the United States via assisted pregnancies.


https://travel.state.gov/content/tra...cy-Abroad.html
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  #56  
Old 25 January 2018, 04:36 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by ganzfeld View Post
About retroactivity, again, it's hit and miss. For example the fact that 1934 was not retroactive to children born abroad of a US mother and an alien father was specifically retroactively corrected in the 1990's. Whereas, just a few years later the same problem was repeated with the Child Citizenship Act, which was not retroactive to adults. I mean, there's really no blanket statement one can make that's both true and really useful, IMHO. But you can go on trying. I don't mind.
Well, both true and really useful? I might agree. Again, just a point of historical note. But again, what is a blanket statement is that no child born outside the United States since 1790 has been a US citizen at birth, unless at least one parent was a US citizen at the time of the birth.


What I understand about State Department position on the issue of transmitting US citizenship to a child born outside the United States is that unless the law indicates changes are retroactive, whatever law was in effect at the time of the birth applies to that person. And yes, sometimes, the retroactivity is to repair an inequity, as perceived by the Congress.

Quote:
Originally Posted by ganzfeld View Post
I don't really get what you want to say. I guess it's that there was some provision for citizenship of some people born abroad to some citizens since 1790. Not very helpful but, I guess, an interesting historical tidbit in a much longer history with many more important milestones.
Yes, I would agree with you on the tidbit issue.

Another point on which I would agree is that US law still does not provide for US citizenship at birth for every child born outside the United States to a US citizen parent. There is still the physical presence requirement for the US citizen parent.

If a 15 year old US citizen married female married to an alien and gives birth to a child outside the United States before her 16th birthday, that US citizen cannot transmit US citizenship to the child. (Of course, if the genders were reversed, the outcome is the same, the child is still not a US citizen at birth.)


Prior to the passage of the Nationality Act of 1790, the United States had no statutory provision for the US citizenship at birth status for a child born outside the United States. And yes, it took from 1790 to 1934 to correct the inequality of the right of a US citizen mother to not have the same transmittal benefit to her child born outside the United States.



What State Department says, based on what is in 7 FAM 1131.2, is that for a child born outside the United States, in order for that child to be a US citizen at birth, at least one parent must be a US citizen at the time of that birth and that US citizen parent must have the required physical presence in the United States in order to transmit US citizenship to the child.

Again, based on my understanding, there has not been any child born outside the United States who is a US citizen at birth who did not have a US citizen parent. Further, that US citizen parent must meet whatever other requirements are in effect in US law at the time of the birth.

If neither parent is a US citizen, that child born outside the United States cannot be a US citizen at birth. That is the bottom line.
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  #57  
Old 25 January 2018, 05:02 PM
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Originally Posted by GenYus234 View Post
Embassies are considered sovereign territory of their country. Would a child born in a US embassy be a US citizen even if neither parent was a citizen?

[/hijack]
Military bases, embassies and consulates are specifically excluded.
See: https://politics.stackexchange.com/q...s-are-not-citi

-- Karyn
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  #58  
Old 25 January 2018, 05:06 PM
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Please don't use the term "parent" when you mean biological or genetic parent.
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  #59  
Old 25 January 2018, 05:41 PM
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Right erwin! To use a term from my 20s.

Any man can be a father. It takes a special person to be a parent.
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  #60  
Old 25 January 2018, 05:53 PM
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Originally Posted by UrbanLegends101 View Post
If neither parent is a US citizen, that child born outside the United States cannot be a US citizen at birth. That is the bottom line.
Which is why I'm saying that what's at issue is the definition of "parent".

The link in post #55 says

Quote:
The U.S. Department of State interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent
That's an interpretation. It's apparently the interpretation being currently used. But it's not the only possible interpretation. And it's an interpretation that means that parents in a same sex marriage are being treated differently than parents in a mixed sex marriage; at least, unless all fathers in mixed sex marriages have to provide proof of their biological relationship, rather than having it assumed.

Both technology and society have changed drastically since 1790; and applying 1790 assumptions to 2017 is, in this as in many other areas, likely to cause significant problems.

And, at least as much to the point, in 1790 -- probably even more so in 1790, when DNA testing wasn't remotely possible -- there must have been cases in which the assumption that a legal husband was the father of his wife's child was untrue, if the word "parent" were taken to mean only genetic parent. It pretty clearly at the time meant "legal parent". This may well have been because everyone was politely assuming in public that extramarital relationships never happened; but people must have been entirely aware that such things did happen, and that the polite public presumption of genetic paternity was bound to sometimes be factually incorrect.
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