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The curious case of Francesco Guarino

Birthers point to the word “domiciled” in the Supreme Court decision in US v. Wong to exclude its conclusions from the determination of Barack Obama’s citizenship. They argue that Wong only applied to the children of domiciled parents and one of Barack Obama’s parents (his father) was not domiciled.

Three years after US v. Wong, a question like that came up in the case of Francesco Guarino. Guarino was the child born of two Italian subjects, temporarily in the United States. Hector de Castro, United States Consul-General in Rome, wrote to acting Secretary of State David J. Hill on June 20, 1901 the following letter asking if Guarino was a US citizen (text version at the bottom of the article):

 

What is the law? Mr. de Castro referenced language from the Civil Rights of Act of 1866, “not subject to any foreign power” to conclude that young Guarino was not a US citizen. Does this language imply the same thing as “subject to the jurisdiction” in the Fourteenth Amendment? Is Alexander Porter Morse the authority that will prevail? Do the Birthers finally get a clear citation on point?

On August 8, 1901, the answer was given (text version at the bottom of the article):

 

So, domicile is not necessary, a minor cannot lose their US citizenship, and Mr. Morse was not recognized as the authority.

Sorry, Birthers. Eat lasagna!

Read more:


Plain text version of the two letters:

No. 99. ]

Consulate General of the United States,
Rome, Italy, June 20, 1901.

Sir: I have the honor to report the following: A minor, named Francesco Guarino, born in the United States of Italian parents, not naturalized, applied to our embassy in Rome, through our consul at Palermo, where he is now residing, for a passport. The application was granted by the chargé d’affaires, Mr. Iddings, against my representations, under the plea that the boy was born in the United States and was to be considered a United States citizen, although a minor and his parents being at the time of his birth and still are Italian subjects.

As the question may arise again, I deem it my duty, with the agreement of Mr. Iddings, to respectfully request the Department for a strong legal opinion upon the subject, in order to settle the controversy and to guide our action in the future.

The point is this: Can a minor residing temporarily or permanently abroad, but born in the United States of alien parents who have never been naturalized nor intimated their intentions of becoming naturalized, be considered an American citizen? And is such minor entitled to an American passport?

No. 864 section 992 of title 25 of the Statutes of the United States relating to citizenship reads as follows: “All persons born in the United States and not subject to any foreign power excluding Indians not taxed are declared to be citizens of the United States.” It would therefore appear clear to me that a child born in the United States of alien parents can not be considered to be a United States citizen, especially when said child is outside of the United States, no more than a child born abroad of American parents could be considered a citizen of the country where he happened to be born.

Then again Prof. Alexander Porter Morse in No. 7 of the Treaties of Citizenship, published in Washington, considers “the country of the father is that of the children at least during their minority.”

This point involves the right of a United States legation or embassy abroad to make aliens American citizens, that right lying I believe solely within the power of the United States courts.

All of which is respectfully submitted.

I am, etc.,

Hector de Castro,
United States Consul-General


No. 33. ]

Department of State,
Washington,  August 8, 1901.

Sir: I inclose herewith copy of a dispatch from the consul general of the United States at Rome requesting instructions in regard to issuing passports to minors residing in Italy and born in the United States of alien parents, the particular case in point being that of a minor Francesco Guarino to whom a passport was issued by you against the consul general’s representations.

The question raised by the consul general is, in his own words, as follows:

Can a minor residing temporarily or permanently abroad but born in the United States of alien parents who have never been naturalized nor intimated their intentions of becoming naturalized, be considered an American citizen? And is such minor entitled to an American passport?

The position of the Department is that birth in the United States, irrespective of the nationality of the parents, confers American citizenship; that no act of the parent can deprive the child of the status thus acquired, and that consequently such children even though taken abroad by their parents, are entitled to be treated as citizens of the United States. In view of the decisions of our Federal courts, there can be no doubt of the correctness of this position. It has been almost uniformly held by our Federal courts that birth within the dominions and jurisdiction of the United States confers citizenship irrespective of the nationality of the parents. The question was squarely presented to the Supreme Court in 1897 in the case of Wong Kim Ark, who was born in the United States of parents who were subjects of the Emperor of China. In 1890, when he was 17 years of age, he went to China for a visit, returning to the United States the same year. He was permitted to enter the United States, and remained here until 1894, when he again went to China for a visit. He returned to the United States in 1895, but the collector of customs at San Francisco denied his application for admission on the ground that he was not a citizen or the United States. Upon habeas corpus the United States district court ordered him to be discharged on the ground that he was a citizen of  the United States. The United States appealed to the United States Supreme Court and that court (169 U. S.,  649) affirmed the judgment of the lower court, thus authoritatively settling the question.

The question whether the father by removing the child from the jurisdiction of the United States or otherwise can deprive him of the citizenship conferred upon him by birth has also been passed upon by the Federal courts. In ex parte Chun King (35 Fed. Rep., 354) Judge Deady, in delivering the opinion of the United States circuit court, said:

In my judgment, the father can not deprive his minor child of the status of American citizenship impressed upon it by the circumstances of its birth under the Constitution and within the jurisdiction of the United States. This status once acquired can only be lost or changed by the act of the person when arrived at majority and the consent of the Government.

Your action in granting the passport was correct.

I am, etc.,

Alvey A. Adee,
Acting Secretary

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28 Responses to The curious case of Francesco Guarino

  1. avatar
    Paper February 23, 2012 at 8:03 pm #

    “Sorry, Birthers. Eat lasagna!”

    Hey! I just now ate lasagna for dinner. Not all lasagna-eaters are birthers!

    I like lasagna. Don’t take that away from me…

    ;-}

  2. avatar
    y_p_w February 23, 2012 at 8:21 pm #

    I find a few things interesting about the letter. It says the “Consul-General” in Rome, although I would have thought there would have been a US embassy in Rome as there is now. Not that I don’t believe it (his obit in the NY Times mentions he was US Consul-General in Rome) but most US embassies are located in the country’s capital city.

    There have certainly been many people who have successfully claimed US citizenship based on birth in the US even without parents who chose to reside long-term in the US. I’ve mentioned Bruce Lee. The movie “Dragon” has a scene where Lee’s father shows him his hospital birth certificate from the Jackson Street Hospital in San Francisco’s Chinatown, which is now known as Chinese Hospital. He uses this to enter the US, although it was unclear if it was used to get a passport or if he just entered and presented this birth certificate. This was at a time when hospital birth certificates might have been accepted by the State Dept.

  3. avatar
    Woodrowfan February 23, 2012 at 8:50 pm #

    FYI, In 1901 the US was still in the midst of upgrading Ministers to Ambassadors.

  4. avatar
    Scientist February 23, 2012 at 8:54 pm #

    y_p_w: I find a few things interesting about the letter. It says the “Consul-General” in Rome, although I would have thought there would have been a US embassy in Rome as there is now. Not that I don’t believe it (his obit in the NY Times mentions he was US Consul-General in Rome) but most US embassies are located in the country’s capital city.

    In a capital city, there will usually be a consular section within the embassy. The ambassador and his staff handles government-to-government relations, while the consul handles matters for US expatriates and issues visas to come to the US.

  5. avatar
    Scientist February 23, 2012 at 9:06 pm #

    y_p_w: There have certainly been many people who have successfully claimed US citizenship based on birth in the US even without parents who chose to reside long-term in the US.

    There are several thousand “border babies” in Canada. Their parents lived in small towns near the border, where the closest hospital was on the US side. Their mothers literally came, dropped the baby and went home. They are US citizens. Many are now having issues with that since, as US citizens, they are required to file US taxes even if they never enter the US and earn all their income in Canada and pay all their taxes in Canada.

    There are also border babies on the other side, born to American parents in Canadian hospitals. They are Canadian citizens, since Canada also grants citizenship to all born on its territory. Canada doesn’t tax non-residents, so it is less of an issue for them.

  6. avatar
    RetiredLawyer February 23, 2012 at 10:46 pm #

    Scientist: There are several thousand “border babies” in Canada.Their parents lived in small towns near the border, where the closest hospital was on the US side.Their mothers literally came, dropped the baby and went home.They are US citizens.Many are now having issues with that since, as US citizens, they are required to file US taxes even if they never enter the US and earn all their income in Canada and pay all their taxes in Canada.

    There are also border babies on the other side, born to American parents in Canadian hospitals.They are Canadian citizens, since Canada also grants citizenship to all born on its territory.Canada doesn’t tax non-residents, so it is less of an issue for them.

    It gets even worse. Up to two years ago, I was a natural born citizen of the U.S. having been born in California. Two years ago, Canada decided that they needed to take care of a number of citizenship problems, including the “born in the US to Canadian parents” problem, and Canada declared that anyone born to any Canadian citizen (including Canadian citizens who naturalized to another citizenship) are also Canadian Citizens, regardless of where they were born. On the other hand, unless they are resident in Canada, they can not pass on their newly acquired Canadian citizenship to their children.

    So, I am now a dual national, but my daughter is not.

    From this we learn that dual nationality can not be a requirement of nbc, since dual nationality is a function of another country’s law that may be enacted without any consent from the citizen.

  7. avatar
    Rickey February 24, 2012 at 2:09 am #

    RetiredLawyer:
    From this we learn that dual nationality can not be a requirement of nbc, since dual nationality is a function of another country’s law that may be enacted without any consent from the citizen.

    I have a question which I have posed to birthers a number of times, but I have never received a response.

    I was born in New York State and both of my parents were U.S. citizens at the time of my birth. The Vattelists would acknowledge that I am a natural-born citizen.

    However, my paternal grandmother was born in Ireland. That makes me eligible for Irish citizenship. If I apply for and am granted Irish citizenship and I do not renounce my U.S. citizenship, am I no longer a natural-born citizen?

    I fail to see how one can be a natural-born citizen one day and not the next, unless there has been a formal renunciation of citizenship.

  8. avatar
    y_p_w February 24, 2012 at 3:33 am #

    Scientist: In a capital city, there will usually be a consular section within the embassy.The ambassador and his staff handles government-to-government relations, while the consul handles matters for US expatriates and issues visas to come to the US.

    I certainly understand that, although living on the West Coast means that I’ve never dealt with an embassy per se when getting a visa to visit a foreign country, which I have needed a few times.

    However, I was thinking that the name of the mission was the US Consulate-General, and the name of the official was the Consul-General, as the correspondence stated. In my limited experience, these are not names used to describe the the consular section of a US embassy or any employee at a US embassy. For instance, the current US Embassy in Rome is led by the US Ambassador to Italy, with the 2nd in charge the Deputy Chief of Mission. Perhaps there is someone with the title “Consulate” at the embassy, but in my experience the title “Consulate-General” is only used to describe the head of a mission that is not an embassy.

    It could very well be that they had no “embassy” per se in Italy at the time, or it would have been in some other city?

  9. avatar
    Adrien Nash February 24, 2012 at 4:44 am #

    Rickey: I have a question which I have posed to birthers a number of times, but I have never received a response.

    I was born in New York State and both of my parents were U.S. citizens at the time of my birth. The Vattelists would acknowledge that I am a natural-born citizen.

    However, my paternal grandmother was born in Ireland. That makes me eligible for Irish citizenship. If I apply for and am granted Irish citizenship and I do not renounce my U.S. citizenship, am I no longer a natural-born citizen?

    I fail to see how one can be a natural-born citizen one day and not the next, unless there has been a formal renunciation of citizenship.

    You need to grasp the nature of natural citizenship. It’s something that’s innate. You were born a natural American. That’s what you are by nature. Adding an additional citizenship is not a function of a natural transferrence of group membership from parent to child but a grant by government according to its own will. That has no impact on your status as a natural American.
    Dual nationality is only an issue if it is due to parents of dual nationalities, not dual citizenship based solely on a foreign place-of-birth to parents with the same nationality.

  10. avatar
    Paul Pieniezny February 24, 2012 at 8:43 am #

    y_p_w: I find a few things interesting about the letter. It says the “Consul-General” in Rome, although I would have thought there would have been a US embassy in Rome as there is now.

    This may provide the answer:

    http://en.wikipedia.org/wiki/Prisoner_in_the_Vatican#Roman_Question

  11. avatar
    Arthur February 24, 2012 at 9:51 am #

    Adrien Nash: You need to grasp the nature of natural citizenship. It’s something that’s innate. You were born a natural American. That’s what you are by nature. Adding an additional citizenship is not a function of a natural transferrence of group membership from parent to child but a grant by government according to its own will. That has no impact on your status as a natural American.

    Why of course, Adrien! It’s all so clear, no unnaturally clear. . . As Professor Gump observed, “Natural is as natural does.” In other words, it is the “nature” of natural to be naturalized. Native-Natural-Naturalinity. Dare we say, NATURAL born leader. Likewise, mares eat oats (but not, as the saying goes, “quinoa”). And, inarguably, the natural partner of the grassland mare, by which I mean the woodland-loving “doe,” has also, if we are to believe the reports of Puncher and Wattman, been known to consume oats. So, naturally, we can conclude, that a natural born lamb, if pure of wool and of curly tail (see Belcher), will, if prompted by the natural affection for food by it’s internal organs (i.e., the stomach) consume the ivy. And therein lies a song.

    That is what you were getting at, right?

  12. avatar
    Dr. Conspiracy February 24, 2012 at 10:48 am #

    FIFY

    Arthur: Why of course, Adrien! It’s all so clear, no unnaturally clear. . . As Professor Gump observed, “Natural is as natural does.” In other words, it is the “nature” of natural to be naturalized. Native-Natural-Naturalinity. Dare we say, NATURAL born leader. Likewise, mares eat oats (but not, as the saying goes, “quinoa”). And, inarguably, the natural partner of the grassland mare, by which I mean the woodland-loving “doe,” has also, if we are to believe the reports of Puncher and Wattman, been known to consume oats. So, naturally, we can conclude, that a natural born lamb, if pure of wool and of curly tail (see Belcher), will, if prompted by the natural affection for food by it’s internal organs (i.e., the stomach) consume the ivy. And therein lies a song.Qua, qua, qua.

    I find Arthur’s parody particularly cogent when I consider some of Mr. Nash’s other writing, for example:

    http://h2ooflife.wordpress.com/the-foundation-of-nations

  13. avatar
    Ballantine February 24, 2012 at 10:54 am #

    Adrien Nash:Dual nationality is only an issue if it is due to parents of dual nationalities, not dual citizenship based solely on a foreign place-of-birth to parents with the same nationality.

    I guess you think it is worth your time to simply make up your own law and post it on the internet. You clearly don’t understand the difference between nationality and citizenship nor do you understand that in the early republic it was the foreign born who were not considered nationals of the United States. They were statutory citizens for municipal purposes, but it was understand that their nationality or political status would be governed by their place of birth if born in a jus soli nation like England. Time to do some more studying.

  14. avatar
    Rickey February 24, 2012 at 11:02 am #

    Adrien Nash: You need to grasp the nature of natural citizenship.It’s something that’s innate.You were born a natural American.That’s what you are by nature.Adding an additional citizenship is not a function of a natural transferrence of group membership from parent to child but a grant by government according to its own will.That has no impact on your status as a natural American. Dual nationality is only an issue if it is due to parents of dual nationalities, not dual citizenship based solely on a foreign place-of-birth to parents with the same nationality.

    Really?

    But the Vattelists have been telling us all along that the alleged “two-citizen parent” requirement is necessary to prevent someone with divided allegiance from becoming President.

    So you are saying that divided allegiance is no barrier to the Presidency, as long as the allegiance to another country is acquired after birth. But if you are born with divided allegiance, you are SOL. Your logic is curious, to put it mildly.

  15. avatar
    Arthur February 24, 2012 at 11:16 am #

    Dr. Conspiracy: FIFY

    Thank you Dr. C. Your editing reminds me of that hit from not too many decades ago by The Becketts, or as they were sometimes known, “The Drab Four.” The memorable chorus to their number one song goes:

    She loves you, qua, qua, qua
    She loves you, qua, qua, qua,
    And with a love like that
    You know you should be sad.

    As you may recall, The Becketts consisted of Didi (rhythm guitar and vocals), Gogo (bass and vocals), Pozzo (lead guitar and vocals), and on drums, Lucky. Of course, some people refer to Monsieur Godot as the “fifth Beckett,” but he remains an elusive figure.

  16. avatar
    Paul Pieniezny February 24, 2012 at 11:28 am #

    Adrien Nash: You need to grasp the nature of natural citizenship. It’s something that’s innate. You were born a natural American. That’s what you are by nature.

    WTF. Natural law knows no borders, so citizenship cannot be innate, or “natural” in the meaning you are giving it here. Under natural law, everybody, including women, is born free and equal.

    Citizenship derives from common law or Völkerrecht-Ius Gentium. SCOTUS has decided it is common law.

    Oh, and Amercan women stopped losing their citizenship when marrying a non-American long before 1961. That is why they had all these funny rules about age and residency to pass on citizenship, remember?

    I must grant you this: the arguments you are using would have enraged Vattel.

  17. avatar
    G February 24, 2012 at 12:45 pm #

    Reads like something you would expect to find on Stormfront…

    Dr. Conspiracy: I find Arthur’s parody particularly cogent when I consider some of Mr. Nash’s other writing, for example:
    http://h2ooflife.wordpress.com/the-foundation-of-nations

  18. avatar
    Northland10 February 24, 2012 at 1:27 pm #

    Is there a gene for this? Does it mutate if your parents naturalize when you are in the womb? Does it mutate in your children if you are born in the US of alien parents?

    Are you confusing genes with pigment?

    Adrien Nash: You need to grasp the nature of natural citizenship.It’s something that’s innate.You were born a natural American.That’s what you are by nature.

  19. avatar
    John Woodman February 24, 2012 at 5:26 pm #

    Just to note: This doesn’t seem to address the parents’ residency at the time of the child’s birth in the United States. Were they resident aliens? Or merely visitors? It doesn’t seem to say, or to address the question at all.

  20. avatar
    Ballantine February 24, 2012 at 5:42 pm #

    John Woodman: Just to note: This doesn’t seem to address the parents’ residency at the time of the child’s birth in the United States. Were they resident aliens? Or merely visitors? It doesn’t seem to say, or to address the question at all.

    Why would it since the Supreme Court never said residency was required or relevant? The Court set forth a general rule, the common law, in which resident parents were included, but not required. It applied such general rule to the facts of the case, resident aliens, and disposed of the issue before it. The specific holding related to children of resident aliens, yet the rationale was based upon adoption of the common rule. Both the specific holding and the rationale are precedent, or according to some people, all part of the holding. The Heritage Foundation and other anti-anchor baby partisans try to argue that the case should be read narrowly and confined to its facts. However, there is nothing in the case to indicate it should be read in such narrow way. Perhaps the court will re-visit the issue again one day and someone can argue why temporary visitors should be treated differently from residents, however, until that happens the rationale from WKA will be followed by the courts. Simply a historical fact that children of temporary visitors were natural born subjects under English law and during the 14th Amendment debates the issue of children of temporary visitors was raised once and the answer was that such children were born citizens without a single objection from anyone.

  21. avatar
    John Woodman February 24, 2012 at 7:29 pm #

    Doc’s point in this article, as I understood it, was that domicile was not necessary. The evidence presented does not, as far as I see, support the conclusion. 🙂

  22. avatar
    John Woodman February 24, 2012 at 7:31 pm #

    Ballantine: …during the 14th Amendment debates the issue of children of temporary visitors was raised once and the answer was that such children were born citizens without a single objection from anyone.

    Do you have a reference for this?

  23. avatar
    Scientist February 24, 2012 at 7:40 pm #

    John Woodman: Doc’s point in this article, as I understood it, was that domicile was not necessary. The evidence presented does not, as far as I see, support the conclusion

    Domcile is not necessary. See my post above regarding Canadian border babies. Their mothers gave birth in the US simply because the hospital was in the US town near them was closer than the nearest Canadian hospital. Then they took the baby home and the child in some cases never set foot again in the US. They are still US citizens. Canada had to change its citizenship laws in 2007 to make sure they could have Canadian citizenship as well. That is the law.

  24. avatar
    John Woodman February 24, 2012 at 7:48 pm #

    Domicile may not be necessary, but I don’t see anything in the article referenced that establishes this.

    Based on Doc’s opening and concluding statements, I was expecting some good solid evidence as to the fact.

  25. avatar
    John Woodman February 24, 2012 at 8:04 pm #

    Rickey: I have a question which I have posed to birthers a number of times, but I have never received a response.

    I was born in New York State and both of my parents were U.S. citizens at the time of my birth. The Vattelists would acknowledge that I am a natural-born citizen.

    However, my paternal grandmother was born in Ireland. That makes me eligible for Irish citizenship. If I apply for and am granted Irish citizenship and I do not renounce my U.S. citizenship, am I no longer a natural-born citizen?

    I fail to see how one can be a natural-born citizen one day and not the next, unless there has been a formal renunciation of citizenship.

    It’s simple.

    The fact that you would ask such a question means that you have renounced your US natural born citizenship already, and while you are still a citizen you are no longer natural born and therefore ineligible to run for President.

    See? Simple.

  26. avatar
    Scientist February 24, 2012 at 8:04 pm #

    John Woodman: Domicile may not be necessary, but I don’t see anything in the article referenced that establishes this.
    Based on Doc’s opening and concluding statements, I was expecting some good solid evidence as to the fact.

    Let’s use logic, John. The letter notes that Mr Guarino was born in the US of alien parents. If domicile were relevant, it would have been noted. The letter also doesn’t note the parent’s height, weight, whether they are smokers, what state the birth occurred in and a whole bunch of other facts. Why? Because they are irrelevant. What single fact is relevant? That the birth occured in the US. Simple, really….

  27. avatar
    John Woodman February 24, 2012 at 8:06 pm #

    Scientist: Let’s use logic, John.The letter notes that Mr Guarino was born in the US of alien parents.If domicile were relevant, it would have been noted.The letter also doesn’t note the parent’s height, weight, whether they are smokers, what state the birth occurred in and a whole bunch of other facts.Why?Because they are irrelevant.What singlefact is relevant?That the birth occured in the US.Simple, really….

    That strikes me as suggestive but inconclusive.

    Do you accept as proof results in science that are merely suggestive?

  28. avatar
    Scientist February 24, 2012 at 8:12 pm #

    John Woodman: Do you accept as proof results in science that are merely suggestive?

    The State Department said Guarino was a citizen. They based that on one single fact-the place of birth (since they were told no other facts). Therefore, it is more than suggestive that that is sufficient; it is definitive.