Well, Leo Donofrio, Esq., aka The Paraclete, ventured out of his comfy nest made of twigs and bird droppings to attack the 53 page CRS Memo by Jack Maskell, entitled Qualifications for President and the “Natural
Born” Citizenship Eligibility Requirement. The Birthers are going crazy because this memo utterly destroys the two citizen-parent nonsense along with several other imaginary legal theories. The complete memo can also be found at The Birther Think Tank under Natural Born Citizenship in the Header area above.
Donofrio’s dismissal of the entire 53 page report and his entire post is presently based upon his reading of one whole sentence in the report, although we are promised additional quibbling in the future. Excerpts:
The complete refutation will be available soon, but for now I will highlight one particularly deceptive example which illustrates blatant intellectual dishonesty. On pg. 48, Maskell states:
In one case concerning the identity of a petitioner, the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….”221
The petitioner was born in California to parents who were both US citizens. His father was born in the United States and was a citizen by virtue of the holding in US v. Wong Kim Ark. His mother’ place of birth was not mentioned. Regardless, she was covered by the derivative citizenship statute, and was, therefore, a US citizen when the child was born.
But the Supreme Court never said that. Here’s what they actually said:
“It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649 , 18 Sup. Ct. 456.” Kwok Jan Fat v. White, 253 U.S. 454, 457 (1920).
Donofrio commits at least two major errors. Let us first deal with whether or not Jack Maskell was being deceptive in his characterization. Here are excerpts from what the Supreme Court said in the Kwock Jan Fat case:
In January, 1915, Kwock Jan Fat, the petitioner, intending to leave the United States on a temporary visit to China, filed with the Commissioner of Immigration for the Port of San Francisco an application, as provided for by law, for a “preinvestigation of his claimed status as an American citizen by birth.”
He claimed that he was 18 years of age, was born at Monterey, California, was the son of Kwock Tuck Lee, then deceased, who was born in America of Chinese parents and had resided at Monterey for many years; that his mother at the time was living at Monterey, and that there were five children in the family, three girls and two boys.
But, while it is conceded that he is certainly the same person who, upon full investigation, was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the claim is that that Commissioner was deceived, and that petitioner is really Lew Suey Chong, who was admitted to this country in 1909 as a son of a Chinese merchant, Lew Wing Tong, of Oakland, California
It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U. S. 649.
It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.
Here is a link to the case:
Sooo, the Kwock Jan Fat Court itself said:
[I]f he was born here, when [his parents] were permanently domiciled in the United States, he is a citizen, and that it was better to err on the side of a natural born citizen when they released him from imprisonment.
Maskell cited the Kwock Jan Fat Court as EXPLAINING:
the Supreme Court of the United States explained that “[i]t is not disputed that if petitioner is the son” of two Chinese national citizens who were physically in the United States when petitioner was born, then he is “a natural born American citizen ….
Sorry Paraclete, but I don’t see any big difference. The Court does not go into the citizenship of the parents. After reading what they say, one is left with the sense that it is the place of birth not the citizenship of the parents which provides the citizenship. Else why go into “ he was born to them when they were permanently domiciled in the United States“? Plus, “permanently domiciled in the United States” certainly leaves open the implication they were indeed Chinese nationals. While the fact the father was native born would have probably made him a natural born citizen also, there is no other information provided to the court on that point. The Court does not go into it in their analysis.
That was an accurate summing up of the case. I would not have phrased it the same way as Maskell, but his statement is far from being deceptive. Unless of course one doesn’t like the natural born citizen language. Maybe this is just proof of what I have said all along. Two citizen-parent Birthers are reading comprehension challenged.
Now, let us deal with Donofrio’s second major error, his analysis of Kwock Jan Fat’s parents’ citizenship status. Donofrio waxes pompously:
Having been born in the US of parents who were citizens, petitioner was indeed a natural-born citizen. But Maskell’s frightening quotation surgery makes it appear as if the petitioner was born of alien parents. The Supreme Court rejected that contention. And Maskell’s ruse highlights the depravity of lies being shoved down the nation’s throat on this issue. I can imagine Mini-Me sitting on his lap while this was being prepared.
Well first, from above, the Kwock Jan Fat Court characterized the parents simply as permanently domiciled in the United States. The Court does not go into any kind of analysis of their citizenship status. Several statements were made by white citizens prior to Kwock’s year long trip to China. None expressly called Kwock’s father a citizen, although they did note he was born in America and registered to vote. No documents were presented, and this would have simply been hearsay evidence. But this was offered simply to prove that Kwock had been born in America, not to prove the citizenship of his father. As a legal matter, no one on the Court knew or cared what citizenship the father adhered to. No evidence was submitted that the Father was either a diplomat or invading soldier. And that is additional evidence that the two citizen-parent stuff is nonsense.
Further, at the time of Kwock Jan Fat case, the Chinese Exclusion Act was in effect. Wiki says:
The Chinese Exclusion Act was a United States federal law signed by Chester A. Arthur on May 8, 1882, following revisions made in 1880 to the Burlingame Treaty of 1868. Those revisions allowed the U.S. to suspend immigration, and Congress subsequently acted quickly to implement the suspension of Chinese immigration, a ban that was intended to last 10 years. This law was repealed by the Magnuson Act on December 17, 1943.
The Act also affected Asians who had already settled in the United States. Any Chinese who left the United States had to obtain certifications for reentry, and the Act made Chinese immigrants permanent aliens by excluding them from U.S. citizenship.After the Act’s passage, Chinese men in the U.S. had little chance of ever reuniting with their wives, or of starting families in their new homes.
Between 1882 and 1905, about 10,000 Chinese appealed against negative immigration decisions to federal court, usually via a petition for habeas corpus. In most of these cases, the courts ruled in favor of the petitioner.Except in cases of bias or negligence, these petitions were barred by an act that passed Congress in 1894 and was upheld by the U.S. Supreme Court in U.S. vs Lem Moon Sing (1895). In U.S. vs Ju Toy (1905), the U.S. Supreme Court reaffirmed that the port inspectors and the Secretary of Commerce had final authority on who could be admitted. Ju Toy’s petition was thus barred despite the fact that the district court found that he was an American citizen. The Supreme Court determined that refusing entry at a port does not require due process and is legally equivalent to refusing entry at a land crossing. This ruling triggered a brief boycott of U.S. goods in China.
The Chinese Exclusion Act was repealed by the 1943 Magnuson Act, which permitted Chinese nationals already residing in the country to become naturalized citizens and stop hiding from the threat of deportation. It also allowed a national quota of 105 Chinese immigrants per year. Large scale Chinese immigration did not occur until the passage of the Immigration Act of 1965. Despite the fact that the exclusion act was repealed in 1943, the law in California that Chinese people were not allowed to marry whites was not repealed until 1948.
Even today, although all its constituent sections have long been repealed, Chapter 7 of Title 8 of the United States Code is headed, “Exclusion of Chinese.” It is the only chapter of the 15 chapters in Title 8 (Aliens and Nationality) that is completely focused on a specific nationality or ethnic group.
In 2011, the US Senate passed a resolution apologising for past discriminatory actions such as this act.
The is no evidence that Kwock’s father ever applied for certification for re-entry, something required for Chinese born here even 22 years after Wong Kim Ark. And after reference to the Chinese Exclusion Act above, it was far from certain that Kwock’s father would have automatically been presumed to be a citizen without proof of his birth place, which would default to him being deemed a Chinese national a reasonable characterization.
And, another thing that Donofrio misses, is that the dog didn’t bark. Similarly, the Kwock Jan Fat Court didn’t engage in an analysis of the parent’s citizenship. The Court’s characterization is simply that they were permanently domiciled in the United States. And it stopped there. Because the two citizen-parent stuff is just imaginary Birther law. Looking back at the facts, we can engage in that analysis, but that court didn’t. Real courts don’t do imaginary law very well. There was no reason to inquire into their citizenship status anymore than there was to in Wong Kim Ark.
It is important to keep in mind where we are in this discussion. A 53 page memo was written which devastates the two citizen-parent theory. In response, Leo Donofrio picks out one sentence of that memo to try to destroy its credibility. That in itself is a silly enterprise, but entirely predictable. The Birthers have a history of ignoring Reality to maintain their theory. It is not surprising that they would attempt to ignore 52+ pages of well documented legal memo to keep up their delusions.
Finally, let me give the Paraclete one last kick in the seat of the pants. How dare YOU, who have made up this two citizen-parent nonsense up out of thin air accuse anyone of misrepresenting anything? YOU, who mangles and distorts cases like Minor v. Happersett into false precedent. What makes you think that YOU, the inventor of The Donofrio Shuffle, where you substituted the words from the dissent into the majority decision, without cites, have any right to criticize anyone? Remember The Donofrio Shuffle:
Go, Leo. Go in peace. Go in anger. Whatever, just go.
Note 1: Chinese Checkers. There is more than one way to play. Wiki says:
In the capture variant, all sixty game pieces start out in the hexagonal field in the center of the game board. The center position is left unoccupied, so pieces form a symmetric hexagonal pattern. Color is irrelevant in this variant, so players take turns hopping any game piece over any other eligible game piece(s) on the board. The hopped-over pieces are captured (retired from the game, as in American checkers) and collected in the capturing player’s bin. Only jumping moves are allowed; the game ends when no further jumps are possible. The player with the most captured pieces is the winner.
The board is tightly packed at the start of the game; as more pieces are captured, the board frees up, often allowing multiple captures to take place in a single move.
Two or more players can compete in this game, but if there are more than six players, not everyone will get a fair turn.