requires that both of the child’s parents be U.S. Citizens at the time of birth. Rather, if Obama was born in Hawaii as he claims, then under the liberalized and questionable meaning of “subject to the jurisdiction thereof,” he can be a born Fourteenth Amendment “citizen of the United States” and a “citizen of the United States at birth” under 8 U.S.C. Sec. 1401 (a). Again, that citizenship status does not make him an Article II “natural born Citizen.” But what would Obama's citizenship status be if he was not born in the United States? First, let us examine why there is still existing doubts as to whether Obama was born in Hawaii. Second, let us examine what law would apply to determine Obama’s citizenship status should he not be born in Hawaii or any other part of the United States and what his citizenship status would be under that law.
These are the reasons for the existing doubts regarding Obama's place of birth:
1. What Obama or some other unknown person posted on the internet is not a birth certificate (BC). Rather, he/she posted a digital image and picture of a questionable "certification of live birth" (COLB) which at best is only prima facie evidence of the place of his birth. The prima facie value of this document fails in light of numerous existing factual circumstances which contradict the COLB's validity and which have not been adequately explained by Obama.
2. According to Obama and his Press Secretary, Mr. Gibbs, this digital document alone is supposed to allow Obama to qualify to be President of the United States and Commander in Chief of the Military. According to them, this electronic image alone is sufficient to prove that Obama is a U.S. citizen and therefore qualified to have the full power of the executive vested in him. It is unbelievable that Obama would expect the American people to grant him such license over their lives based simply upon an electronic image on a computer screen. It is even more unbelievable that the Electoral College, our Congress, political institutions, security forces, and media would allow him to get away with it. This document, which in its paper form is undoubtedly a legal document, has no probative value given that it was posted by some unknown person on the internet as a digital image without following any prescribed electronic media security protocols. We know that digital images can be easily manipulated through computer technology. See http://technology.findlaw.com/articles/01102/010555.html for an explanation of the need to follow defined federal and state standards when it comes to electronic/digital information transmittal of legal documents. If Obama expects this digital image of a COLB to have such unprecedented value which allows him to be President of the United States, then he should at least show that the electronic image he posted meets electronic/digital security standards.
3. While not officially confirmed, the authenticity of the COLB computer image has been questioned by at least two digital image experts who have concluded that the COLB image is a forgery.
4. Obama says he was born in a hospital. A birth certificate provides the name of the hospital where the birth occurred and the name of the doctor delivering the baby. The COLB does not have this vital corroborating information.
5. The key point that Obama supporters are redirecting attention away from is that the underlying foundational information supporting his Certification of Live Birth is unknown. This unknown information may not matter much when it comes to an ordinary person. But for someone running for President of the United States and currently sitting in that Office it is of crucial importance.
6. When Obama was born in 1961, Hawaii had in effect the Certificate of Hawaiian Birth Program which it established in 1911 and which it terminated in 1972. Someone could under Act 96 get a certificate claiming a Hawaiian birth even if he was physically born in a foreign country by an adult or parent falsely claiming to the director of health that he was born in Hawaii when in fact he was born abroad. Hence, because of the contradictory evidence that exists such as statements made by relatives and newspaper reporters in Kenya and elsewhere regarding where he was born, plaintiffs are entitled to pierce the alleged COLB and examine the file that is in the possession of the Hawaiian Secretary of State which may contain a sworn application/petition in which some party set forth circumstantially all the facts upon which the application rested and supporting sworn affidavits of witnesses. The file could also contain the results of the Secretary or his designee examinations under oath of the applicant or other person who may have been cognizant of the alleged facts regarding the application/petition along with other documentary evidence that they may have obtained as a result of issuing subpoenas for books and other papers.
7. The DoD 5220.22-M, "National Industrial Security Program Operating Manual," 2/28/2006 (NISPOM) provides baseline standards for the protection of classified information released or disclosed to industry in connection with classified contracts under the “National Industrial Security Program (NISP). It prescribes the requirements, restrictions, and other safeguards to prevent unauthorized disclosure of classified information. It also states at 2-209 that only U.S. citizens are eligible to receive a security clearance. The Manual requires a contractor to show proof of U.S. citizenship. It states at 2-208: “For individuals born in the United States, a birth certificate is the primary and preferred means of citizenship verification.” http://www.dtic.mil/whs/directives/corres/pdf/522022mchaps.pdf. Surely, we should require such documentation of someone seeking to occupy the Office of President of the United States.
8. At the time that Obama was sworn in as President, not even the Hawaii Department of Home Lands accepted a certification of live birth (COLB) as conclusive evidence of being a native of Hawaii for its Homeland program. From its web site: "In order to process your application, DHHL utilizes information that is found only on the original Certificate of Live Birth, which is either black or green. This is a more complete record of your birth than the Certification of Live Birth (a computer-generated printout). Submitting the original Certificate of Live Birth will save you time and money since the computer-generated Certification requires additional verification by DHHL."
9. Since the controversy over Obama’s alleged birth certificate, Hawaii has changed its web page to read as follows:
"Birth certificates (Certificates of Live Birth and Certifications of Live Birth) and Certificates of Hawaiian Birth are the primary documents used to determine native Hawaiian qualification.The Department of Hawaiian Home Lands accepts both Certificates of Live Birth (original birth certificate) and Certifications of Live Birth because they are official government records documenting an individual’s birth. The Certificate of Live Birth generally has more information which is useful for genealogical purposes as compared to the Certification of Live Birth which is a computer-generated printout that provides specific details of a person’s birth. Although original birth certificates (Certificates of Live Birth) are preferred for their greater detail, the State Department of Health (DOH) no longer issues Certificates of Live Birth. When a request is made for a copy of a birth certificate, the DOH issues a Certification of Live Birth."http://hawaii.gov/dhhl/applicants/appforms/applyhhl.
10. Despite the numerous law suits that have been filed against Obama, he continues to refuse to release his original birth certificate and has opted rather to spend large sums of money using lawyers to defend himself and to cause the courts and litigants to expend large amounts of time and resources pursuing litigation against him and other third parties. He relies on procedural and other threshold arguments such as jurisdiction, justiciability, standing, political question, separation of powers, mootness, and ripeness rather than simply produce his original birth certificate and make a motion for summary judgment with prejudice as to the merits so that no other future cases can be brought against him and others which would then put an end not only to the ongoing drain of money, time, and other resources but also to the great public outrage that continues to increase over time regarding his constitutional eligibility.
11. For some unknown reason and relying on federal and state privacy laws, Obama has refused to publicly release his original Certificate of Live Birth (BC) even though in his book, Dreams from My Father, he stated that he had it.
12. Obama and his half-sister, Maya, have each stated that he was born in different hospitals in Hawaii. In November 2004, in an interview with the Rainbow Newsletter, Maya told reporters her half-brother, Sen. Barack Obama, was born on August 4, 1961, at Queens Medical Center in Honolulu. But Obama has said he was born at Kapi'olani Medical Center for Women & Children, also in Honolulu. Changing her story, in February 2008 Maya then told reporters for the Honolulu Star-Bulletin that Obama was born at the Kapi’olani Medical Center for Women and Children.
13. On February 5, 2008, Madelyn Dunham was still alive, but the Obama campaign did not make her available for interviews with the media. Obama's maternal grandmother surely would have known where her grandson was born but Obama refused the media access to her. http://seattletimes.nwsource.com/html/localnews/2004164387_brodeur05m.html.
14. Neither of the two or any other hospital in Hawaii or anywhere in the world has been willing to come forward and claim its place in history as being the hospital where the first African-American U.S. President was born. There is no Hawaiian hospital that has confirmed that Obama and/or his mother were present in any such hospital at the time of Obama's alleged birth in Honolulu. Not a single person has come forward, not a doctor, nurse, hospital administrator, nor any one else to confirm Obama's birth in Hawaii. "We don't have plans to do anything," said Kapi’olani Medical Center spokeswoman, Claire Tong, when asked how the center plans to commemorate the soon-to-be 44th U.S. president, who, according to Obama's family and other sources, was born at that hospital on Aug. 4, 1961. "We can't confirm or deny it — even though all the information out there says he was born at Kapiolani Hospital. And that's because of the HIPA law." Tong acknowledged that the center has received daily inquiries from news agencies far and wide asking for confirmation of Obama's birthplace. Despite her wanting to do so, Tong said it is not possible. "Our hands are tied," she said. http://www.honoluluadvertiser.com/article/20081109/NEWS01/811090361/-1/specialobama08. I wonder why Tong said that “even though all the information out there says he was born at Kapiolani Hospital.” He surely did not even slightly hint that any information in the hospital supported such a claim. One would think that Obama would do a simple thing and give the hospital permission to release the information to the news-thirsty public. After all, what harm to his privacy would he suffer from authorizing the hospital to simply confirm that the President of the United States was born there?
15. Attorney Philip Berg has served subpoenas on the hospitals mentioned by Obama and his half sister as the place where Obama was born to obtain the medical records which would show the fact of Obama being born in either one of them but Obama has refused to sign the consent that the hospitals need to release the documents.
16. “Birthplaces and boyhood homes of U.S. presidents have been duly noted and honored for nearly as long as America has been a nation. In the case of such towering figures as Thomas Jefferson, Abe Lincoln and Teddy Roosevelt, those early locations have been deemed national treasures and historic sites, visited annually by the multitudes.” http://www.honoluluadvertiser.com/article/20081109/NEWS01/811090361/-1/specialobama08. But we have not seen any movement by any public charity or foundation, non-profit organization, or government agency to commemorate Obama's place of birth in Hawaii.
17. We have not seen any media events or news conferences at the hospital where Obama was born which I am sure is a place the location of which is highly news worthy not only to the American people but to the whole world. Hence, we do not even know in which hospital Obama was born.
18. Other than the COLB and the two newspaper announcements whose basis for information is the same single source, there does not exist one known corroborating medical or other document of any kind which shows that Obama was born in Hawaii. The Honolulu Advertiser, on Sunday, August 13, 1961 contained the following short announcement: "Mr. and Mrs. Barack H. Obama, 6085 Kalanianaole Highway, son, Aug. 4." The Honolulu Star-Bulletin, an unaffiliated, competing publication, carried the exact same notice the following day. The numerous birth announcements above and below the Obama listing also were identical in both papers. Advertiser columnist and former Star-Bulletin managing editor, Dave Shapiro, was not at either paper in 1961, but he remembers how the birth notices process worked years later when both papers were jointly operated by the Hawaii Newspaper Agency, which no longer exists. He states: "Those were listings that came over from the state Department of Health . . . . They would send the same thing to both papers." http://www.honoluluadvertiser.com/article/20081109/NEWS01/811090361/-1/specialobama08. Hence, we can see that the information for those birth notices comes straight from the state Health Department’s Vital Records Division. Hence, the birth announcements, not having their source of information in some other place, do not add any corroboration to the COLB. Other secondary evidence may include baptismal or circumcision certificates, hospital birth records, or affidavits of persons having personal knowledge about the facts of birth. Other documentary evidence can be early census, school, or family bible records, newspaper files, or insurance papers. No such documents have been produced for the American public. Furthermore, no one has been able to confirm that Obama’s mother and father in fact ever lived at 6085 Kalaniana’ole Highway, Honolulu.
19. Although Obama has had a first-class education that spanned 25 years, there is only a single document that has ever been released, the application for entrance to the Franciscus Assisi Primary School in Indonesia. That document was discovered by independent investigators. That documents shows that Obama was an Indonesian citizen. It is also reported that his Kindergarten records are missing. Needless to say how probative these kindergarten records would be since they would contain his legal name, parents’ names, date of birth, place of birth, and vaccination records.
20. No public official in Hawaii has publicly confirmed with any conclusive and credible evidence that Obama was born in Hawaii. Whatever statements Director of Hawaiian Department of Heath, Fukino, has made are not conclusive on the question of whether Obama was born in Hawaii. What is lacking is what information the Department is relying upon to make its statements. Just from her statement alone, we also do not know what evidence exists in the Department of Health file to corroborate what is stated in the “original birth certificate.”
21. We have not heard from one international, federal, state, or local police or security agency that Obama's birth place has been officially confirmed.
22. On June 27, 2004, the East African Newspaper, The Sunday Standard, in its article entitled, Kenyan-born Obama all set for US Senate, declared in its newspaper that Obama is Kenyan-Born. This long pre-dates Obama's decision to run for President when the truth about his birth location was not being hidden. This is not the only African paper that made such statements during a time that Obama’s birth place was not an issue.
23. An Investigator working for Philip Berg, Esq. learned the following which is contained in the investigator's affidavit dated October 30, 2008, that was filed with a Federal District Court in the case of Berg v. Obama, 08-cv-04083: Obama's step-grandmother, Sarah Obama, told Bishop McRae, who was in the United States, during a telephonic interview on October 12, 2008, while she was in her home located in Alego-Kogello, Kenya, that was full of security police and people and family who were celebrating then-Senator Obama's success story, that she witnessed Obama's birth in Kenya, not the United States (the English and Swahili conversation is recorded and available for listening). She was adamant about this fact not once but twice. The conversation which was placed on speaker phone was translated into English by "Kweli Shuhubia" and one of the grandmother's grandsons who were present with the grandmother in the house. After the grandmother made the same statement twice, her grandson intervened, saying "No, No, No, He [sic] was born in the United States." During the interview, the grandmother never changed her reply that she was present when Obama was born in Kenya. The fact that later in the same interview she change her statement to say that Obama was born in Hawaii does not change the fact that she at first stated twice that she was present when Obama was born in Kenya. I cannot imagine a grandmother not knowing whether she was present or not at the birth of her American Senator and U.S. Presidential candidate grandson.
24. The investigator then personally went to the hospital in Mombasa, Kenya. He spoke with the Provincial Civil Registrar and he learned that there were records of Ann Dunham giving birth to "Barack Hussein Obama, III" in Mombassa, Kenya on August 4, 1961. The investigator then "spoke directly with an Official, the Principal Registrar, who openly confirmed the birthing records of Senator Barack H. Obama, Jr. and his mother were present, however, the file on Barack H. Obama, Jr. was classified and profiled. The Official explained Barack Hussein Obama, Jr. [sic] birth in Kenya is top secret. [H]e was further instructed to go to the Attorney General's Office and to the Minister in Charge of Immigration if [he] wanted further information."
25. The Kenyan Ambassador to the United States, Peter N.R.O. Ogego, confirmed on November 6, 2008, during a radio interview with Detroit radio talk-show hosts Mike Clark, Trudi Daniels, and Marc Fellhauer on WRIF's "Mike In the Morning," that "President-Elect Obama" was born in Kenya and that his birth place was already a "well-known" attraction. The radio interview went as follows:
Clark: “We want to congratulate you on Barack Obama, our new president, and you must be very proud.”
Ogego: “We are. We are. We are also proud of the U.S. for having made history as well.”
Fellhauer: “One more quick question, President-elect Obama’s birthplace over in Kenya, is that going to be a national spot to go visit, where he was born?”
Ogego: “It’s already an attraction. His paternal grandmother is still alive.”
Fellhauer: “His birthplace, they’ll put up a marker there?”
Ogego: “It would depend on the government. It’s already well known.”
Later on, Ogego’s assistant, denying that Obama was born in Kenya, insisted Ogego was speaking about Barack Obama Sr., and not President-elect Obama.She said she could not say why Ogego responded the way he did. Listening to the radio interview in its entirety, it is very obvious the interviewers were all talking about President-elect Barack Obama and not his father. It is doubtful that Obama’s father’s paternal grandmother (Obama’s great-grandmother) was still alive. We would also expect that Ogego would have said that Obama was not born in Kenya, but there is an attraction there to honor his father. If it were true that Ogego was referring to Obama’s Sr. and not Obama Jr., we should have heard about and received credible evidence as to what preparatory steps had already been taken in Kenya to honor the birth place of Obama Sr. In evaluating Ogego’s statement, we have to also remember that Obama’s grandmother also said that Obama Jr. was born in Kenya. Hence, Ogego’s assistant’s claim that Ogego thought they were talking about Obama’s father does not appear credible.
26. It is alleged that the Kenyan government authorities have refused to cooperate and have thwarted all efforts by anyone to obtain any documents concerning Obama.
27. Obama has refused all effort to have him release the following documents, relying on sealing of records and/or privacy laws: Punahou High School records, Occidental College records, Columbia College records, Columbia Thesis paper, Harvard College records, Selective Service Registration, medical records, Illinois State Senate records, Illinois State Senate schedule, Law practice client list, Certified Copy of original Birth Certificate, Harvard Law Review articles that were published, University of Chicago scholarly articles, exit and entry immigration records covering all of Obama's travels out of the United States; passports; and record of baptism, if any.
28. Fightthesmears.com and factcheck.org have since maintained silence on the birth place issue after the questionable COLB was posted on the internet.
29. Other than a digital composite image representation on the internet of a questionable letter dated January 24, 2009 that he allegedly wrote to Kapi’olani Medical Center congratulating the hospital on its centennial celebration (it is reported that he refused to confirm that the letter was genuine, http://www.wnd.com/index.php?fa=PAGE.view&pageId=103503), Obama has remained silent and has not declared publicly after his COLB and place of birth were questioned that he was born in Hawaii.
30. No member of the media, any political party, the Executive Branch of Government, Congress, any political institution, the Judiciary, or any law enforcement entity, has publicly stated that he or she has independently confirmed that Obama was born in Hawaii. Nor has House Speaker, Nancy Pelosi, the Chair of the Democratic National Convention, publicly announced that she confirmed that Obama was born in Hawaii.
Given all this evidence, Obama should come forward with competent evidence to conclusively prove that he was born in Hawaii. To date, he has failed to produce such evidence. Hence, under these circumstances, how can the American people in good faith conclude that Obama was born in Hawaii? How did Obama in good conscience twice take the oath to be President on January 20th when so many Americans have put forward all this contradictory evidence regarding where he was born and he refuses to come forward with any other convincing evidence (like a certified copy of his original birth certificate) showing that he was born in Hawaii?
If Obama was not born in the United States, then a completely different legal scenario would apply regarding his current citizenship status. There is much confusion regarding what role Obama’s mother plays in giving him United States citizenship. With his father not being a U.S. citizen, Obama would need his mother to make him a citizen only if he was not born in the U.S. If he was not born in the United States, his mother would, however, for the following reasons not be able to transmit United States citizenship to him because she was too young at the time Obama was born.
The law governing the citizenship of children born outside the U.S. to one or more Unites States-citizen parents may be found at 8 U.S.C. Sec. 1401 to Sec. 1409. What could apply to Obama are Sec. 1401 (Nationals and citizens of United States at birth), 1405 (Persons Born in Hawaii), 1409 (Children born out of wedlock). Sec. 1405 would apply to make him a “citizen of the United States at birth” only if he was born in Hawaii in 1961. With proof of the place of his birth lacking, we cannot now say that this statute would be applicable. Obama has maintained that his parents were married when he was born. They even obtained a divorce. Hence, it does not appear that Sec. 1409 would apply to him. So the only statute which would apply to him to make his a “citizen of the United States at birth” would be Section 1401. But Obama, if not born in the United States, also cannot satisfy any part of Section 1401.
The only part of Sec. 1401 that could apply to Obama is subsection (g). A child born in wedlock and abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 1401(g) (Section 301(g) INA), provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child). http://travel.state.gov/law/info/info_609.html. Hence, the Immigration and Nationality Act 1952, 8 U.S.C. 1401(g), Sec. 301 (g) [Effective November 14, 1986] does not apply to Obama because he was born in 1961. What does apply to Obama is the Nationality Act of 1940, as Revised June 1952, which was in effect when he was born. But under this older version of the statute, for birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. for the United States citizen parent to transmit United States citizenship to the child. United States of America v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002) (citing United States v. Gomez-Orozco, 188 F.3d 422, 426-27 (7th Cir. 1999)) and Drozd v. INS, 155 F 3d 81, 85-88 (2d Circuit 1998).
Hence, this is the scenario that would apply if Obama was not born in the United States. Obama’s father was not a United States citizen. Obama can therefore only rely on his United States citizen mother to make him a “citizen of the United States at birth.” But as we can see from 8 U.S.C. Sec. 1401(g) (the only applicable statute), a mother had to be at least 19 years old when she gave birth to the child born abroad in order to transmit her United States citizenship to him. Obama’s mother, born on November 29, 1942, was 18 years old when she gave birth to Obama on August 4, 1961. She was 117 days short from being 19 years old. But she had to be at least 19 years old (14 years old plus 5 years of U.S. physical presence) to satisfy the legal requirement of Sec. 1401(g) (INA Section 301(g)). Therefore, Obama cannot benefit from Sec. 1401(g).
Hence, if Obama was not born in the United States, under the Fourteenth Amendment he is neither a United States citizen by birth on United States soil nor one by naturalization. (There is no existing evidence that Obama was ever naturalized.) Nor would he qualify to be a United States citizen by any act of Congress by being born abroad to a United States citizen parent. If this scenario were proven to be true (being neither a born nor a naturalized citizen), it can be reasonably argued that Obama is an undocumented alien. Obama has refused to release his identity documents to the public which causes such theories to exist. It is this reason which shows the importance of the American people being able to access Obama’s records (birth certificate, travel, education, and employment records) to intelligently learn his exact citizenship status. Surely, the United States cannot have a possible undocumented alien be its President. People must keep pressing Obama that he releases his personal documents so that they may at least learn that the President is at least a “citizen of the United States” which again still does not make him an Article II “natural born Citizen.”
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
December 6, 2009