This is a short follow-up post concerning the Congressional Research Memo, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement, by Jack Maskell. This well written memo completely and comprehensively devastates the ridiculous Birther legal theories.
Leo Donofrio, Esq., aka The Paraclete, and major promoter of the two citizen-parent lunacy has launched a feeble counter attack against the memo, quibbling about the phrasing of one sentence in the report regarding the 1920 SCOTUS case of Kwock Jan Fat v. White:
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
And in a petulant childish fashion, Donofrio photo-shopped in the word Propaganda to the memo’s heading:
Donofrio objected to Maskell characterizing the parents as Chinese nationals when there was information in the decision which indicated the parents were actually citizens. The plaintiff, Kwock Jan Fat was born in America, but because he was of Chinese origin, he had to comply with regulations which required a preinvestigation of his status as an American citizen.
There was a strict immigration policy in force regarding the Chinese, and this was necessary for him to be able to return the United States after a trip to China. Three people provided information to the Department of Immigration that he was born in America, and thus a natural born citizen. However between the time he left for China, and the time he returned, somebody provided anonymous information to the government that he was actually another person, born in China, not America. Upon his return he was imprisoned and he filed a habeas corpus petition which made it to the Supreme Court.
One of the witnesses had provided information in the original preinvestigation application to the Department of Immigration that Kwock Jan Fat’s father, Kwock Tuck Lee was native born and a voter.
Ernest Michaelis, for twenty-six years a justice of the peace and for many years the official collector of fish licenses, testified, making reference, for purpose of identification, to a photograph of the petitioner. He said he had known the parents of the boy since shortly after he himself went to live at Monterey in 1879; that there were two boys and three girls in the family; that he had seen the petitioner frequently as a little fellow when he went to collect fish licenses (the boy’s father was a fisherman), and had known him ever since; and, referring to the photograph, he declared positively that he was sure of his identity and that he was born in Monterey. He added that the father of the boy was native born and was a voter in that community.
However, the Court simply characterized the parents as permanently domiciled in the United States:
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.
Donofrio regards Maskell’s characterization of the parents as Chinese nationals and “creative use of quotation marks” as part of a “Frankenstein inspired patchwork.” Maskell replied to this claim today, and as reported on Jonathan Turley’s legal blog:
I wrote to Maskell about Kwock; his response:
“I agree that case cite needs clarification to emphasize that Kwock and one witness did aver that his father was born in the United States. It is important, I think, that the Court only mentioned that the parents were permanently “domiciled” in the United States, and thus did not appear to rely on citizenship status, when they accepted the characterization of the Commissioner of Immigration that he was a natural born citizen.”
But, as I discovered, the SCOTUS may have been more legally precise in their description than it appears to us in hindsight. In 1920 The Geary Act was still in effect, and there appears to have been a legal presumption that persons of Chinese descent were . . .(drumroll) . . . Chinese. From Wiki:
The Geary Act,  besides renewing the exclusion of Chinese laborers for another 10 years, also outlined provisions that required Chinese already in the U.S. to possess “certificates of residence” (as well as “certificates of identity” after the McCreary amendment was added) that served as proof that they entered the U.S. legally and had the right to remain in the country. The certificates of residence contained the name, age, local residence, occupation, and photograph of the applicant. The act placed the burden of proof of their right to be in the U.S. on the Chinese themselves, denied bail to Chinese in habeas corpus proceedings, made it the duty of all Chinese laborers in the U.S. to apply within one year for a certificate of residence, with a duplicate kept in the office of the Collector of Internal Revenue, and suitable penalties were prescribed for any falsification of certificates. Another of the Act’s provisions required two white witnesses to testify to a Chinese person’s immigration status. If any Chinese laborer within the United States without this certificate of residence was “deemed and adjudged to be unlawfully in the United States”, they could be arrested and forced to do hard labor, and be deported after a year.This was the first time ever illegal immigration to the U.S. was made punishable by such a harsh degree.
- 1892 Geary Act: Congress extended all previous Chinese Exclusion Laws by ten years. By requiring Chinese persons in the United States to carry a “certificate of residence” at all times, the Geary Act made Chinese persons who could not produce these certificates presumptively deportable unless they could establish residence through the testimony of “at least one credible white witness.” Congress also denied bail to Chinese immigrants who applied for writs of habeas corpus. Text
- 1902: Congress indefinitely extended all Chinese Exclusion Laws. Text
- 1904: Congress made permanent all Chinese Exclusion Laws
- 1943 Repeal: Congress repealed all laws “relating to the exclusion and deportation of the Chinese.” Congress permitted 105 persons of Chinese descent to immigrate into the United States each year, and enabled persons of Chinese descent to become American citizens. The 1943 repeal, however, was enacted a wartime measure to counteract enemy propaganda after China became an ally of the United States during World War II, with little acknowledgment of the injustice of the laws. Neither then nor afterward has Congress expressed regret at its passage of the Chinese Exclusion Laws. Text
No such information appeared to be in the file, so while we can presume that Papa Kwock would have been found a natural born citizen based on his birth in the United States, it probably would have taken more the above out-of-court statement by Ernest Michaelis. Just guessing, but this is probably why the SCOTUS defaulted to “when they were permanently domiciled in the United States.
Therefore, Maskell’s statement is not deceptive, and the natural born citizen status afforded Kwock Jan Fat was NOT based on the citizenship of his parents which was presumptively by law, that they were Chinese.
Note 1: Here and There. Here is, of course, Me, and The Birther Think Tank. There is, the other guys.