It’s déjà vu all over again. Is a first term senator and former adjunct law professor running for President a U.S. citizen? This time the question is about Rafael Edward “Ted” Cruz, born in Calgary, Alberta, Canada, on December 22, 1970. Ted Cruz’s parents, Eleanor Elizabeth Darragh Wilson and Rafael Bienvenido Cruz, lived in Canada when Ted was born. Eleanor was a U.S. citizen. Rafael was not. On yesterday’s news, Mr. Cruz explained that it is settled law that he is a United States citizen because he had a U.S. citizen parent. Well, Adjunct Professor Cruz, we’ll have to give you partial credit.
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 are not U.S. citizens at birth. Assuming, as most do, that “natural born” includes those born abroad that acquired U.S. citizenship at birth, the remaining question is whether Mr. Cruz acquired U.S. citizenship at birth.
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 U.S. citizen parent or parents. If both of a child’s parents are United States citizens when a child is born, a child born in 1970 (like Mr. Cruz), is a citizen if one of the parents resided in the United States before the child was born. INA § 301(c). This does not apply to Mr. Cruz because his father was not a U.S. citizen. 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.) If Eleanor and Rafael were legally married and Eleanor lived in the United States for ten years before Mr. Cruz was born, then Mr. Cruz is a U.S. citizen.
Just like the other first term senator and adjunct professor who ran for President, Mr. Cruz’s parents were serial monogamists. If any of their prior marriages did not end in a divorce, then Mr. Cruz would be the son of a U.S. citizen born out of wedlock – polygamous marriages do not count as marriages under U.S. immigration law. The rule for transmission of citizenship in the case of a child born out of wedlock to a U.S. citizen mother born in 1970 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). Having graduated from Rice University – which presumably takes more than a year to do (insert joke hear about Minute Rice University) – before Mr. Cruz was born, Mr. Cruz was a U.S. citizen at birth. I guess we’ll need to see Eleanor’s birth certificate, school records, and Eleanor and Rafael’s marriage certificates and divorce decrees to be totally sure. Posted January 7, 2016.