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WHAT IS “THE KEY FACTOR?”
by Sharon Rondeau
(Oct. 21, 2020) — Late Tuesday night, the Twitter account @KamalaKancel tweeted what appear to be three snippets from immigration documents pertaining to vice-presidential candidate Kamala Harris’s mother previously posted in fuller form by the same account.
The Post & Email has not authenticated any of the documents released by the account, which largely relate to Shyamala Gopalan Harris, who was born in India, received her Master’s degree and Ph.D. in the U.S. and in 2009 passed away after a long career in cancer research in the U.S. and Canada.
First arriving in the United States in September 1958 on a “nonimmigrant student visa,” Gopalan also used the name “Gopalan Shyamala” and, after her California marriage to fellow UC Berkeley student Donald J. Harris of Jamaica, “Shyamala G. Harris.”
On September 3, 1958, “G. Shyamala” signed a statement affirming she intended to enter the U.S. “temporarily and solely for the purpose of pursuing a full course of study in the institution or recognized place of study which has accepted me as a student.”
In its latest tweet, the account appeared to be referencing The Post & Email’s article published Monday titled, “U.S. Senator Claims ‘Birthright Citizenship’ Renders Harris Eligible” containing a letter from the office of Pennsylvania U.S. Senator Pat Toomey to constituent Jeffrey Harrison, who had written with concerns that Democratic vice-presidential candidate Kamala Harris is seeking an office for which she does not constitutionally qualify.
“In a recent letter to J. Harrison, US Senator Toomey (R-PA) wrote Kamala Harris was eligible for VP on a basis that her parents were ‘immigrants,’ @KamalaKancel wrote. “Titles of official documents her parents signed before and after her birth, indicate otherwise.@kamalakancel kamalakancel.com“.
Article II, Section 1, clause 5 of the U.S. Constitution requires that the president, but no other constitutional office-holder, be a “natural born Citizen,” without defining the term of art. As The Post & Email has reported, historical references in the Congressional Globe and several U.S. Supreme Court cases indicate that the parents’ citizenship, in particular that of the father, was the key factor when considering a child’s citizenship, not the child’s birthplace.
Today, however, an interpretation of the 14th Amendment considers all children born in the U.S., including those born to illegal-alien parents, U.S. citizens. On August 12, Chapman University Professor of Law John Eastman posited that in addition to the “natural born” question as it pertains to Kamala Harris, her U.S. citizenship could be in question given that her parents, as foreign citizens, might not have been “subject to the complete jurisdiction” of the U.S. “…Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen,” Eastman wrote.
The 12th Amendment requires vice-presidential candidates to meet all the constitutional requirements of the presidency.
In his response to Harrison, Toomey contended that Harris meets those requirements, citing her birth “in the United States to immigrant parents.” “Accordingly, I do not believe there are any questions regarding Senator Harris’s eligibility to serve as vice president,” he concluded the responsive portion of his letter.
The Founders’ intent as to the “natural born Citizen” clause remains a subject of debate today given the numerous presidential candidates who were not born in the U.S. or whose parent or parents were not U.S. citizens when they were born, including Harris and Barack Obama in the case of his father.
As has been discussed in depth at The Post & Email, the media, Congressional Research Service (CRS) and members of Congress themselves have frequently conflated the terms “citizen” or “citizen by birth” with “natural born Citizen.” For its part, in providing research to Congress on the meaning of “natural born Citizen” beginning in April 2009, the CRS omitted wording from U.S. Supreme Court opinions which would have proved germane to Obama’s citizenship and presidential eligibility or that of any other individual similarly situated.
Contrary to Toomey’s assertion, when Harris was born in Oakland, CA on October 20, 1964, her parents were not “immigrants” to the United States. Both were admitted on student visas, and neither appears to have applied for permanent U.S. residency until early 1967, when, according to a letter Shyamala wrote to the INS on her own behalf, Donald Harris had applied for “permanent resident” status through “the American Embassy in Kingston, Jamaica.”
According to his Stanford University biography, Donald Harris naturalized as a U.S. citizen, although the date is not provided; his Wikipedia entry states that it occurred “some time prior to May 2015,” with a reference to the bio.
Notably, at that time, Gopalan Harris indicated the enclosure of several documents pertaining to her application for “an immigrant visa.”
In February 1968, a “Deportation Docket Control Action Slip or Notice” bearing Gopalan Harris’s name was apparently issued indicating that a “Sec. 245 application” had been filed, a presumed reference to “Section 245” of the Immigration and Nationality Act of 1952.
As noted in a complete April 23, 1965 document, Gopalan Harris applied to the INS to change her “nonimmigrant status” from “nonimmigrant student” to “nonimmigrant visitor.” At that time, she had completed her Ph.D. in Physiology and Nutrition and was seeking to “finish my current assignment” at UC Berkeley, where she had worked as a “Postgraduate Research Physiologist” at an annual salary of $6,360.
In 1976, some five years after separating from and ultimately divorcing Donald Harris, Gopalan Harris and daughters Kamala and Maya relocated to Montréal, Québec, Canada, where Gopalan Harris took a research position at the Lady Davis Institute for Research, a division of Jewish General Hospital affiliated with McGill University.
In 1985, when Gopalan Harris sought to obtain an “immigrant visa” to return to the United States, she required a U.S.-citizen sponsor, with Kamala filling that role just after her 21st birthday.
Today, the United States Citizenship and Immigration Services (USCIS) states of a contemplated change in “nonimmigrant” status:
In general, you may apply to change your nonimmigrant status if you were lawfully admitted to the United States with a nonimmigrant visa, your nonimmigrant status remains valid, you have not violated the conditions of your status, and you have not committed any crimes that would make you ineligible.
The requirements to change “nonimmigrant” status, at least insofar as it applies to employment, appear to be similar to those required of Gopalan Harris in 1965.
Today, “immigrants” to the U.S. must pay an “immigrant fee” unless determined exempt under one or more provisions, which includes the classification as a “nonimmigrant.”