Archive for July, 2009

Obama eligible for presidency on two counts

Sunday, July 19th, 2009

You have probably heard about it. President Obama is not entitled to be President because he was not born in the United States. Not because Hawaii was not a state yet, as Hawaii was admitted to the Union on August 21, 1959, and Barack Obama was born on August 4, 1961 (I know, younger than me, too), but because he was actually born abroad. Not that there is any proof he was born abroad, but because of some concerns about the availability of his Hawaiian birth certificate, or something, people voice their doubts. Voodoo genealogy.

The Constitution requires that the President be a natural born citizen. “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President….” Article 2, § 1, Clause 5. What “natural born” means is not entirely clear. As we all know, a person born in the United States is usually a United States citizen.  INA § 301(a). I say “usually” because the offspring of foreign diplomats on the official diplomatic list – meaning they do not need to pay parking tickets – do not become citizens at birth. Since President Martin Van Buren, the eighth president, all presidents were born in the United States and were United States citizens at birth. The first seven were born before U.S. independence.

Being born in the United States is not the only way to be born a United States citizen. A child can acquire citizenship from a citizen parent or parents. If both of a child’s parents are United States citizens when a child is born, a child born in 1961 (like the President), is a citizen if one of the parents resided in the United States before the child was born. INA § 301(c). President Obama was not born of two United States citizen parents. His mother, Stanley Ann Dunham Soetoro (and you thought Barack was a weird name) was born in Kansas and thus was a U.S. citizen. However, his father, Barack Obama, Sr., was a Kenyan citizen.  He married Stanley on February 2, 1961. The rules are different in this case. For a child born legitimately of one citizen parent and one foreign parent in 1961, the child is a citizen if the citizen parent was physically present in the U.S. or a possession ten years prior to the child’s birth, five of which are after age 14. See, the former INA § 301(a)(7). [It became easier on or after November 14, 1986, requiring five years of physical presence, two after the age of 14.] Stanley lived in the United States for ten years before she gave birth to the President. However, having been born on November 29, 1942, she was only 18 years, 8 months, and 6 days old when the President was born. She thus could not have been physically present in the United States for five years after the age of 14 before the President was born. She would have to have been at least 19 years old to transmit citizenship (14 + 5).

This is not the end of the story, however. As it turns out, Barack Obama, Sr., was married to a Kenyan woman when he married Stanley. While Stanley may have been a putative spouse, she was not technically married to the President’s father  – Hawaii dos not permit polygamy – and thus the President was born out of wedlock. The rule for transmission of citizenship in the case of a child born out of wedlock to a U.S. citizen mother born in 1961 is that the mother have been physically present in the U.S. or possession continuously for 12 months prior to the child’s birth. INA § 309(c). Even if Stanley somehow snuck outside the United States to give birth to the President, she most certainly spent a year in the United States before he was born. Thus, for this reason, U.S. born or not, President Obama is naturally born and eligible to be President.

There are those who assert that naturally born means born in the United States. If that were true, previous presidential contenders would have been ineligible to run. Three come to mind. First, the Mexican-born George Romney, who ran for President in 1968, and the father of Mitt. Second, Barry Goldwater, who was born in the Territory of Arizona (Arizona became a state of the United States on February 14, 1912. Goldwater was born January 1, 1909, in Phoenix. And the third, John McCain, who was born in the Panama Canal Zone. While the Canal Zone was a place where the U.S. was sovereign, it was not a part of the United States of America. And if  John McCain was not eligible, who would become President? You betcha! (Born in Idaho in 1964).

Test results from my June 20 posting of an immigration test.

Sunday, July 12th, 2009

Put your pencils down. Here are the answers to the true-false quiz I posted on June 20.  Let’s review them.

1. Once an alien becomes a permanent resident, her or she automatically gets to stay in the United States even if he or she commits crimes, unless the crimes are very serious in nature or endanger national security.

False. Permanent residents, even those who entered the United States as infants and have never been back to their countries of origin, are routinely deported for crimes as minor as marijuana possession or a couple of shoplifting convictions.

2. A permanent resident can bring his spouse and children to the United States without much of a wait, exacerbating the problem of chain immigration.

False. The current wait for a Mexican to bring his spouse or child to the United States is at least seven years. Visas are available for petitions filed on or before September 22, 2002. If the child turns 21, he can expect to wait more than 17 years. Look at the visa bulletin yourself.

3. Any foreigner who successfully reaches U.S. shores and asks for asylum is immediately able to enter the country and obtain benefits  America traditionally provides those fleeing oppression.

False. Foreigners approaching the border are arrested and held in detention centers. After about one month they see an asylum officer who does an initial screening of their asylum claim – a credible fear interview. Then they are sent to a judge two to four weeks later. The judge sets an asylum hearing, about four months later. If the asylum seeker convinces the judge he is a bona fide asylee, he or she is released. Otherwise, the asylum seeker can expect months and years of continued detention.

4. An illegal alien can automatically stay in the United States if he or she marries a United States citizen which is why there are so many sham marriages.

False. To adjust status, an alien must have entered the United States with inspection or parole. If not, ordinarily the alien cannot adjust status, i.e., become a permanent resident without leaving the country unless someone filed a petition for the alien or his or her parents before April 30, 2001. If there has been no petition, the alien must go to a U.S. Consulate abroad to get a visa. If the alien has been in the United States illegally for more than a year, he or she cannot come back for ten years. He or she can seek a waiver if the alien can show extreme hardship to a citizen or permanent resident parent or spouse. Hardship to children or the alien himself or herself does not matter.

5. The government is not allowed to deport an alien who has United States citizen children, which explains why so many illegals have children.

False. Having a U.S. citizen child offers no shield from deportation. Aliens with U.S. citizen children are deported every day.

6. Any child who has a U.S. citizen parent automatically becomes a citizen of the United States.

False. The rules of acquiring citizenship from a parent are complex. In a nutshell, only a permanent resident becomes a citizen automatically if his or her parent becomes a citizen. A child may be a citizen at birth if his or her parent lived in the United States for ten years before the child was born. Different rules apply depending on the child’s date of birth, whether or not both parents are citizens, and whether the parents were married, and which parent is the citizen. Both lawful and unlawful residents whose parents are citizens are deported every day.

7. An illegal alien can join the armed forces and the military actually seeks them as recruits, which is a way for aliens to accelerate becoming a citizen.

False. The armed forces will accept only U.S. citizens or permanent residents into the armed forces. Permanent residence are subject to the draft. Permanent residents and illegal aliens are supposed to register for the draft. There is an exception to only citizens and  permanent residents being allowed to join the armed forces for aliens who are in the United States lawfully and are either medical doctors and some other medical professionals orfor aliens who speak some rarer languages in need by military intelligence.

8. The law allows foreign workers who obtain non-immigrant work visas to enter the United States to work for U.S. companies as long as they are paid the minimum wage of the state where they will work and the federal minimum wage, which is why many American workers lose their jobs.

False. Before a foreign worker can accept a job in the United States, his company must promise to pay the alien the prevailing wage for the job. A company that underpays an alien worker faces fines and other punishment and could also be prosecuted for a crime.

9. Aliens stopped at the border, like Americans, have the right to remain silent and the right to an attorney before they are questioned.

False. Non-citizen and non-permanent residents at the border have the burden of proving lawful admission. Officers may detain and question aliens and there is no right to counsel. Miranda does not exist at the border. Aliens are often subjected to long detentions and interrogations.

10. Under the rules of a speedy trial, an alien arrested for immigration violations must see a judge within 72 hours, can usually pay a bond to be released from detention, and cannot be detained more than 180 days while seeking relief in immigration court unless the alien himself is responsible for the delay of his trial.

False. ICE has a policy of not releasing aliens it detains at the border who lack documents or are otherwise subject to removal except in the rarest of circumstances. On average an alien is detained six months before a hearing to decide if the alien can come into the United States. Aliens caught in the United States are subject to mandatory detention for most criminal offenses where there was a conviction after October 1998.  Aliens are supposed to get charging documents explaining why the government wants to deport them within a day of arrest, but seeing a judge can take longer than a month and final resolution of case more than six months at a minimum.  Nowadays aliens are often shuffled around the country before seeing a judge.

Let me know how you did and what you think of the answers.