Joachim Feise

Rich Wales wrote on 4/8/2004 13:59:

    > "Kabir" wrote:
    >
    > > This just doesn't make sense. Being born in US just gives him
    > > a right to get US citizenship. He or his parents may choose to
    > > keep their own citizenship, if they wish.
    >
    > Actually, as far as the US's citizenship laws are concerned, being
    > born in the US means a person has =automatic= and =mandatory= US
    > citizenship from birth. With only one exception (see below), the
    > parents' citizenship or legal status in the US does =not= matter;
    > even if the child's parents are in the US illegally, the child (if
    > born in the US) is still automatically a US citizen according to
    > US law.
    >
    > It is also =NOT= a question of whether the child's parents want
    > their US-born child to be a US citizen or not. They don't have
    > a choice, and neither does the child -- at least, not until he's
    > grown up and can move to some other country and formally renounce
    > his US citizenship if he really wants to.
[cut for brevity]

Thank you, Rich.
This is basically the same thing I said, just waaay better formulated...

-Joe

Rich Wales

"Amanda" wrote:

> What about the children of foreign diplomats born in US?

They don't get automatic US citizenship at birth, because the 14th
Amendment's "citizenship clause" contains an exception that says it
applies only to people who are "subject to the jurisdiction" of the
US. Foreign diplomats (and their families) have diplomatic immunity
from US jurisdiction -- i.e., they can't be prosecuted or jailed
for breaking the law in the US -- so a US-born child of a foreign
diplomat isn't a US citizen even though he/she was born in the US.

> What I understood was that the children born (in US) to
> non-US citizens can choose to get the citizenship of the
> parent's country for the child if that country would allow
> it. Maybe that country also allows the parent to decide
> for the child.

This is frequently true, though it depends on the citizenship laws
of the parents' country (or countries). Citizenship is a matter
decided by each country, according to its own laws, and generally
without any coordination or cooperation with other countries' laws.

Note that, in many cases, the child's citizenship in the parents'
country (or countries) is =automatic= and =mandatory= -- not simply
a matter of choice by the parents -- just as US citizenship for a
US-born child (except a child of foreign diplomats) is automatic
and mandatory and not subject to the parents' choice. In such a
situation, the child could end up born with two (or more) citizen-
ships -- both US citizenship and that of the other country (or
countries).

> That doesn't mean their birthright to US citizenship is
> affected.

True. The fact that another country (i.e., the parents' country
or countries) may also claim a US-born child as a citizen doesn't
change the fact that the child is a US citizen by virtue of having
been born in the US. Even if the laws of the other country forbid
dual citizenship and demand that the parents =not= get the child a
US passport or do anything else to acknowledge or accept his/her US
citizenship, it simply doesn't matter as far as US law is concerned.

> As far as the parent's bringing him back to US with *that*
> passport, I don't know what procedure would be involved to
> enter US?

A US citizen is =always= supposed to identify him/herself as a US
citizen (not a foreign citizen or a "dual" citizen) when entering
the US. This generally means showing a US passport (not a foreign
passport). It's illegal for a dual US/other citizen to enter the
US as a foreign citizen using a non-US passport -- though the fine
theoretically applicable to doing this is currently waived, and
(contrary to widely held misconception) entering the US in such
a way is =not= currently considered grounds for losing one's US
citizenship.

Note that a dual US/other citizen, when travelling between the US
and his/her other country of citizenship, may need to carry two
passports (one from each country) with him -- using the appro-
priate passport in each country.

Rich Wales [email protected] http://www.richw.org/dualcit/
*DISCLAIMER: I am not a lawyer, professional immigration consultant,
or consular officer. My comments are for discussion purposes only and
are not intended to be relied upon as legal or professional advice.

J. J. Farrell

"Kabir" <[email protected]> wrote in message
news:[email protected]...
    > Joachim Feise wrote:
    > > Kabir wrote on 4/7/2004 14:25:
    > > >
    > > > You are right - if you do get an Indian passport, he'll need a visa to
get
    > > > in United States.
    > >
    > > And, as he has been told multiple times here, as a US citizen, the child
    > > can *not* get any visa.
    > > In fact, it is illegal for a US citizen to enter the US without a US
passport
    > > (except in a couple limited instances, as explained in this thread
before.)
    > This just doesn't make sense. Being born in US just gives him a right to
get US
    > citizenship. He or his parents may chose to keep their own citizenship, if
they
    > wish.

Laws often don't make sense to some people. Why do you think it isn't
the law because it doesn't make sense to you? The child is a citizen of
the USA - that's all there is to it. The parents' opinions and wishes
are irrelevant. The child's opinion is irrelevant until it comes of age.
If the parents didn't want the child to be a US citizen, they should
have arranged to give birth outside the USA.

    > Take for example, a diplomat from Russia working in Russian embassy in
United
    > States. If she has a baby in United states, I am sure she would want him
to keep
    > Russian citizen and get a Russian passport and then she is going to get a
"visa"
    > for her son if she ever travels, right????

Right - because the mother is an accredited foreign diplomat. This is
one of the few exceptions to someone born in the USA being a US citizen
- perhaps the only exception.

    > What is so hard to understand?

Your reason for insisting that the US constitution and laws say something
other than they do.

crg

"So naturalized citizens could do the same too but using US passports instead of Birth Certificate?"

Naturalized U.S. citizens can use their Naturalization certificate, or a passport to enter the US from Canada. Or they can bring nothing at all, and try to satisfy the officer that they are US citizens. It's recommended that they bring evidence of citizenship.

"What if in the application form for a Canadian visa, there is a
question of where the child is born."

Then they answer the question honestly. The fact the child was born in the U.S doesn't hurt the visa application. If asked why the child doesn't have a US passport, then they explain they don't want to give up his Indian citizenship.

Kabir

I stand corrected on the issue of kids of diplomats who are born in US.

This thread has certainly been informative.

Kabir

crg

There are some other exceptions. If the child is born to a member of an occupying foreign army then they wouldn't be a citizen at birth.

A diplomat has to be on the state department's "Blue List".

Rich Wales

"crg14624" wrote:

> There are some other exceptions. If the child is
> born to a member of an occupying foreign army then
> they wouldn't be a citizen at birth.

Presumably true -- though I'm not aware of any specific statute
or regulation that explicitly says this -- and since the US hasn't
had any "occupying foreign army" on its soil in recent memory, I
assume there isn't any case law on this point either.

Additionally, this exception presumably would not apply where one
parent was an occupying foreign soldier and the other parent was
someone who was already in the US before the foreign occupation --
e.g., if an invading soldier raped a local woman.

I've heard a couple of suggestions that US-born children of illegal
aliens shouldn't be considered US citizens because their parents
were, in effect, an occupying foreign army -- but AFAIK, this line
of reasoning has gone nowhere. One risk of proposals to deny US
citizenship to US-born children of illegal aliens on the grounds
that they are not subject to US jurisdiction is that if such a
child were to escape detection and later committed a serious crime,
he would have immunity (just like a diplomat) and couldn't be tried
or punished -- the worst that could be done would be deportation.

Rich Wales [email protected] http://www.richw.org/dualcit/
*DISCLAIMER: I am not a lawyer, professional immigration consultant,
or consular officer. My comments are for discussion purposes only and
are not intended to be relied upon as legal or professional advice.

crg

The occupying army exception to Jus Soli is based on English common law, and is detailed in United States V. Wong KimArk, March 28th 1898.

The 14th amendment was enacted to convey citizenship to children born to slaves, and was not intended to give citizenship at birth to illegal aliens. Many countries do not convey citizenship at birth. There are families of Korean decent who have resided in Japan for 200+ years who are not granted Japanese citizenship.

The diplomat/occupying army concept are only linked because neither child is born to someone who is under the allegiance or jurisdiction of the U.S. government. If such a situation happened with an occupying army, and the child (as an adult) committed a crime, then I believe they would't have any immunity from prosecution. The U.S. prosecutes non-citizens all the time, but there's a treaty for diplomats. Just because someone is a non-citizen due to birth to an occupying force, doesn't make them a diplomat.

There's also a nuance in Canadian law where if a child is born in Canada between 1947 and 1977, and their father naturalizes in another country then the child loses its Canadian citizenship.

So if the child is born in Toronto in 1975, and then dad becomes a Greek citizen or something, the child could become stateless and not be able to visit the U.S. without a visa even though they were born in Canada.

Tam

crg14624 <member20421@british_expats.com> wrote in message news:<[email protected]>...
    > Originally posted by Rich Wales
    > > "crg14624" wrote:
    > >
    > >
    > > There are some other exceptions. If the child is
    > > born to a member of an occupying foreign army then
    > > they wouldn't be a citizen at birth.
    > >
    > > Presumably true -- though I'm not aware of any
    > > specific statute or regulation that explicitly says this
    > > -- and since the US hasn't had any "occupying foreign
    > > army" on its soil in recent memory, I assume there
    > > isn't any case law on this point either.


The law student's conundrum on this concerns the eight German spies
who disembarked from an enemy submarine at Amagansett on June 13,
1942
http://laws.findlaw.com/us/317/1.html

It is argued that if they had fathered a child in the US, that the
child would not have been an American citizen.

Today (at least) we know that the child of a US citizen married to an
accredited foreign diplomat born in the US is, the child, a citizen:
because the US citizen parent always subject to the jurisdiction of
the US (and, by the way, cannot qualify for a sales tax exemption
certificate, or exemption from US income tax). (For the tax gurus
among readers, it is my understanding that the IRS does not claim tax
against the Amcit's community property share of the diplomatic salary,
even though it is arguable that such a share is taxable. If the law
were enforced, though, it would probably offend the Vienna Convention
and some (maybe all) bilateral tax treaties address the problem anyway
by exempting foreign government salaries paid to that government's
citizens.)

The issue had real significance in the case of the illegitimate
offspring born to Channel Islands women who had fraternized with Nazi
occupiers. Although British nationality law apparently excludes such
children from citizenship they have always been treated as British
citizens, and that notwithstanding that (current anyway) British
nationality law has no safeguard for "otherwise-stateless" children, a
patent violation of British treaty obligations.

If you read the dozens and dozens of nationality cases that grew out
of World War II, you get the feeling that they were decided sometimes
pragmatically, sometimes arbitrarily. I have to take seriously Gordon
& Mailman's old tip to immigration lawyers that they check out the
view of a prospective judge and engage in some forum shopping when
issues such as unproven US residence or forced residence abroad (in
wartime) or conscription are critical.

Tam

[email protected] (Rich Wales) wrote in message news:<[email protected] rg>...

    > I've read in the past of at least one airline which has refused to
    > allow US-born children of Indian parents to board US-bound flights
    > via 22 CFR 53.2(f); the airline personnel insisted the child had to
    > have a US passport or he/she could not get on the plane, period.

Such allegations have appeared from time to time on newsgroups. Any
time a traveller has an unusual situation, it is best to clear it in
advance. A consular or INS letter should suffice: after all one can
travel without a passport or visa if there is a waiver letter on file.

This case is more complex because Indian law and practice are in
doubt. Although it is unfair, and arguably a violation of human
rights, to revoke (or deny) a child('s) nationality on account of
place of birth and impossibility of renunciation prior to age 18,
there are countries whose laws purport to do so. In real life, it
doesn't seem to happen.

It is not clear that Canada would require a visa even in the case of
travel with an Indian passport if the infant had a US birth
certificate. Other countries (the UK for example) issue a waiver or
entry clearance exemption in the non-EU passport based on proof of
status. I will know more on this shortly as someone I know is about to
travel from the US with a US passport (EEA passport expired, valid EEA
ID card in hand).

Rich Wales

"crg14624" wrote:

> The 14th amendment was enacted to convey citizenship to
> children born to slaves, and was not intended to give
> citizenship at birth to illegal aliens.

Although that was most likely the original intent, it's been inter-
preted more broadly since then. For example, in Afroyim v. Rusk
(1967), the Supreme Court held that the 14th Amendment's citizenship
clause had elevated the retention of US citizenship to the status
of a constitutionally protected right. The US's current permissive
stance on dual US/other citizenship can be traced, in large part, to
the Afroyim decision.

> Many countries do not convey citizenship at birth.

True -- though the US does (except in cases such as children of
diplomats, or children of occupying forces).

(I assume, by "citizenship at birth", you're referring here to the
practice of "ius soli", whereby any child born within a country's
borders is automatically considered a citizen, regardless of the
citizenship or immigration status of the parents.)

> There's also a nuance in Canadian law where if a child is
> born in Canada between 1947 and 1977, and their father
> naturalizes in another country, then the child loses its
> Canadian citizenship. So if the child is born in Toronto
> in 1975, and then dad becomes a Greek citizen or something,
> the child could become stateless . . . .

Actually, no. Under Canada's pre-1977 citizenship law, if a Canadian
child's "responsible parent" (generally meaning the father) lost his
Canadian citizenship, the child would lose his/her Canadian citizen-
ship only if he/she (the child) either already had citizenship in some
other country, or if the child had acquired a new citizenship at the
same time as the responsible parent. This provision of the old law
didn't create stateless children. And, in any event, this provision
was done away with (albeit non-retroactively) when Canada adopted a
new (its current) citizenship law in early 1977.

Rich Wales [email protected] http://www.richw.org/dualcit/
*DISCLAIMER: I am not a lawyer, professional immigration consultant,
or consular officer. My comments are for discussion purposes only and
are not intended to be relied upon as legal or professional advice.

Jaj

Is it really an issue for those born 'illegitimate' to German fathers
in the Channel Islands during WW2, where the parents never married?

I don't have to hand the legislation in place at the time, but the
British Nationality Act only excludes from nationality the child where
the 'father is an enemy alien and the birth occurs in a place then
occupied by the enemy'

Fathers not married to the mother were excluded from the definition of
'father' in the British Nationality Act, s32(2).

It gets more complex if the parents married after the birth, and
especially in cases where the marriage occurred after the cessation of
hostilities. On what date did Germans cease to be 'enemy aliens'?

And what if the 'German' father was an Austrian?

Jeremy

[email protected] (Tam) wrote in message news:<[email protected] om>...

    > The issue had real significance in the case of the illegitimate
    > offspring born to Channel Islands women who had fraternized with Nazi
    > occupiers. Although British nationality law apparently excludes such
    > children from citizenship they have always been treated as British
    > citizens, and that notwithstanding that (current anyway) British
    > nationality law has no safeguard for "otherwise-stateless" children, a
    > patent violation of British treaty obligations.
    >
    > If you read the dozens and dozens of nationality cases that grew out
    > of World War II, you get the feeling that they were decided sometimes
    > pragmatically, sometimes arbitrarily. I have to take seriously Gordon
    > & Mailman's old tip to immigration lawyers that they check out the
    > view of a prospective judge and engage in some forum shopping when
    > issues such as unproven US residence or forced residence abroad (in
    > wartime) or conscription are critical.

P Pron

JAJ <[email protected]> wrote:
    > Is it really an issue for those born 'illegitimate' to German
fathers
    > in the Channel Islands during WW2, where the parents never married?
    > I don't have to hand the legislation in place at the time, but the
    > British Nationality Act only excludes from nationality the child
where
    > the 'father is an enemy alien and the birth occurs in a place then
    > occupied by the enemy'
    > Fathers not married to the mother were excluded from the definition
of
    > 'father' in the British Nationality Act, s32(2).

I've had a quick look through the BNSAAs 1914-43 and can't see
anything that parallels the 1948 Act's proviso 4(b). And there's
nothing about legitimacy in those Acts, either. But according to the
excellent Mr Fransman, the question of legitimacy was settled in
Abraham v. Attorney General [1934] P17 - and "father" in the BNSAAs
means father of a _legitimate_ child.

I'd guess that the clue to the way a child born in the Channel Islands
under German occupation would be regarded is in the wording of section
1(1)(a) of the 1914 Act. This says that a person would be a
"natural-born British subject" if he was born "_within His Majesty's
dominions and allegiance_"

The argument would probably go that while the _legitimate_ child of an
occupying German soldier would meet the "Crown's dominions" half of
the equation, he couldn't be said to owe _allegiance_ to the Crown,
because of his father's status as a member of an alien force that was
usurping the Crown's authority. So he wouldn't be British.

In the case of _illegitimate_ children, I don't think that the law
_does_ exclude them from acquiring British nationality with any great
clarity. To be absolutely certain it would probably be necessary to
examine the circumstances of each individual case in detail in the
courts. I can quite see why it might be decided that it would be
desirable (both politically _and_ legally) to simply not look too
closely into the nature of the mother's relationship with the putative
father, and just treat the child in the same way as any other child
born on British soil.

paul

    > It gets more complex if the parents married after the birth, and
    > especially in cases where the marriage occurred after the cessation
of
    > hostilities. On what date did Germans cease to be 'enemy aliens'?
    > And what if the 'German' father was an Austrian?
    > Jeremy
    > [email protected] (Tam) wrote in message
    > news:<[email protected] om>...
    >> The issue had real significance in the case of the illegitimate
    >> offspring born to Channel Islands women who had fraternized with
Nazi
    >> occupiers. Although British nationality law apparently excludes
such
    >> children from citizenship they have always been treated as British
    >> citizens, and that notwithstanding that (current anyway) British
    >> nationality law has no safeguard for "otherwise-stateless"
children,
    >> a patent violation of British treaty obligations.