- Law Cases
by Sharon Rondeau
(Mar. 21, 2016) — Last week, The Post & Email was contacted by a reader who informed us that he or she was born abroad to U.S.-citizen parents, both of whom were “natural born Citizens.” At the time of the child’s birth, his or her father was serving in the U.S. Army.
When the reader contacted us, he or she said:
I was born overseas while my father was in the Army. Both my parents are natural born. I am not. When I joined the military in 1974 I had to apply for a Naturalization Certificate. I would have had to have done so a year later anyway when I would have turned 18 if the law requiring me to do so had not been repealed that year. I had to provide my birth certificate and my form FS-240 Report of Birth. I am a Naturalized citizen and at best that is all Ted Cruz is.
The reference to Cruz concerns Cruz’s claim that he meets the “natural born Citizen” requirement in Article II, Section 1, clause 5 of the U.S. Constitution despite his birth in Canada to a Cuban-citizen father and U.S.-citizen mother. Cruz’s father, Rafael Bienvenido Cruz, became a Canadian citizen by his own admission, reported by Macleans of Canada to have occurred in 1973.
The younger Cruz was born on December 22, 1970 in Calgary, Alberta during the oil boom of the era. If it is accurate that Rafael Bienvenido Cruz became a Canadian citizen in 1973, he would not have been required to renounce his allegiance to his country of birth, Cuba, due to a change in the applicable Canadian statute.
In arguing that he is eligible to serve as U.S. president and commander.-in-chief, Rafael Edward “Ted” Cruz has relied on an essay published in the Harvard Law Review approximately ten days before he announced his candidacy, on March 23 of last year. The editorial, written by two former solicitors general – one who worked under Obama and the other under Pres. George W. Bush – maintains that anyone born to one U.S.-citizen parent qualifies as a “citizen and birth,” which in their view, equates to a “natural born Citizen.”
The reasoning put forth in the editorial is based upon the Naturalization Act of 1790, passed by Congress after the ratification of the Constitution the year before and repealed five years later. According to the National Archives, the statute focused on how the process of naturalization would proceed and included the provision of “derivative” U.S. citizenship for wives and children of U.S. citizens.
The authors, Neal Katyal and Paul Clement, however, agree that a “naturalized” citizen is outside of the “natural born Citizen” category and therefore precluded from the presidency.
The eligibility of previous presidential candidates such as Sen. John McCain and Sen. Barry Goldwater has been questioned, although both men were born to two U.S.-citizen parents. While McCain was born in Panama as his father served in the U.S. Navy, Goldwater was born in Arizona territory to citizen parents before it became a state.
Many constitutional scholars, law professors and other citizens who have closely studied the inclusion of the “natural born Citizen” clause after Founding Father John Jay’s July 25, 1787 letter to George Washington believe that its intention was to preclude foreign influence from the nation’s highest office.
During the year in which Cruz has been campaigning, he has silently but consistently refused to release any documentation showing that he possesses even basic U.S. citizenship by registration or naturalization at the level required in Article I of the Constitution for U.S. senators and representatives. In 2012, Cruz was elected to the U.S. Senate with Canadian citizenship, a fact he did not divulge as he sought the office. Rather, in August 2013, The Dallas Morning News revealed the fact that Cruz had been a Canadian citizen for his entire life, to which his senatorial office responded with, “To our knowledge, he never had Canadian citizenship.”
A January 2016 CNN report appears to contradict spokeswoman Catherine Frazier’s claim by quoting it reported Princeton Debate Club fellow member of Cruz’s who stated that Cruz was always aware that he possessed dual U.S.-Canadian citizenship while ruminating over whether or not he would be precluded from pursuing the U.S. presidency some day.
Nine months after the Morning News’s article, in May 2014, Cruz applied to the Canadian government to renounce that citizenship in a move which many speculated was a precursor to a presidential run. His renunciation was officially completed the following month and made known by Cruz, although the application requesting it has not and is not releasable without a signed privacy waiver.
The application asks whether or not the person requesting to renounce his Canadian citizenship has, or will shortly have, citizenship in another country and asks the applicant to “attach proof” in either case.
While The Dallas Morning News reported that upon his birth, Cruz was considered both a Canadian and U.S. citizen, and Cruz’s spokeswoman reported his registration as a U.S. citizen at birth, Cruz has never produced the documentation to prove it. The U.S. State Department declined to release any documentation it might hold on Cruz for “privacy” reasons.
Today, the U.S. State Department recommends that U.S.-citizen parents whose child is born in a foreign country register the child’s birth to obtain a Consular Report of Birth Abroad (CRBA), also known as an FS-240 form.
The FS 240 was updated in early January 2011.
Cruz’s life story states that when he was four, he and his mother rejoined his father in Houston, Texas and that Cruz attended local schools. His school, medical, and university records have not been made public. Through approximately a dozen Freedom of Information Act (FOIA) requests, this publication was able to procure only a one-page Selective Service registration form, reportedly generated as a result of Cruz’s application for federal financial aid to attend college.
The Post & Email’s reader conveyed his or her birth certificate via email, which is presented here in two parts because it was originally an 8.5 x 14 document. The birth certificate indicates that the child’s birth was registered with the American Consulate General in Munich, Germany on February 26, 1957 after being sworn to in person on February 6 in Schweinfurt. The form on which his or her birth was reported is indicated as an “FS-240,” the same form number used by the U.S. State Department today.
Cruz has presented no such form showing that he was registered as a U.S. citizen born abroad to one citizen parent. His mother, Eleanor Elizabeth Darragh Wilson Cruz, was born in Delaware in 1934 and has lived in the United Kingdom and Canada as well as the U.S. Some reports say that she assumed Canadian citizenship along with her husband, but Canadian naturalization records are not releasable to the public without a signed privacy waiver from the recipient.
Cruz’s campaign has ignored direct requests to release his documentation.
It has been speculated by some that Cruz arrived in the United States at the age of four without documentation and that he was legalized by the change in immigration law effected by Congress and signed by President Ronald Reagan in 1986 which awarded US citizenship to approximately 2.7 million illegal aliens.
“I would send you my Naturalization certificate as well but it was destroyed in a fire and since it is no longer required that I have it I never bothered to get a replacement,” the reader told us.
If a child born abroad to two US-citizens, one of whom was serving in the military, is considered a naturalized U.S. citizen, how can Cruz claim the higher standard of “natural born Citizen,” particularly with no documentation?
Today, to enlist in the U.S. Navy, an applicant must present an original birth certificate and, if born outside of the U.S., an FS 240, DS 1350, or FS 545 “establishes your U.S. citizenship.” According to the U.S. State Department, as of December 31, 2010, the DS 1350 is no longer issued.
The State Department additionally states that “A person born abroad who acquired U.S. citizenship at birth but who is over the age of 18 (and so not eligible for a CRBA) may wish to apply for a Certificate of Citizenship to document acquisition pursuant to 8 U.S.C. 1452. Visit USCIS.gov for further information.”
Cruz has said on his campaign website and to CNN’s Dana Bash that the questions over his eligibility are a “non-issue.”
Tags: Article II Section1 clause 5, Calgary Alberta Canada, Canada, Canadian citizenship, Catherine Frazier, Consular Report of Birth Abroad (CRBA), DS 1350, Eleanor Elizabeth Darragh Wilson Cruz, foreign influence, FS 545, FS-240, Harvard Law Review, John Jay, natural born citizen, Naturalization Certificate, naturalized citizen, Presidential eligibility, Rafael Bienvenido Cruz, Sen. Ted Cruz, U.S. Constitution, US State Department