Birthright citizenship in the United States of America

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Birthright citizenship in the United States of America refers to the rule of jus soli whereby any person born within the United States and subject to its jurisdiction is automatically granted U.S. citizenship.^[1] . This status is unaffected by the legal status or the citizenship of that individual's mother or father. American Indian tribal members are not covered specifically by the constitutional guarantee, but they were made citizens automatically by the Indian Citizenship Act of 1924. Children born to foreign diplomats or to hostile enemy forces or born on U.S. territory while it is under the control of a foreign power are not considered subject to U.S. jurisdiction and therefore are not citizens at birth. Throughout much of the history of the United States, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship,^[2] although the United States did not grant citizenship to all black former slaves until the passage of the Civil Rights Act of 1866, which was subsequently confirmed by the Fourteenth Amendment.

Birthright citizenship has its roots in English common law. Calvin’s Case, 77 Eng. Rep. 377 (1608), was particularly important as it established that under English common law “a person's status was vested at birth, and based upon place of birth--a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection."^[3] This same principle was adopted by the newly formed United States, as stated by Supreme Court Justice Noah Haynes Swayne: "All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country…since as before the Revolution." United States v. Rhodes, 27 Fed. Cas. 785 (1866).

The modern world is divided up into nations with each nation, at least nominally, exercising control over its own territory and the people who reside within that territory. Among modern nations, citizenship at birth is conveyed in one or both of two ways; through Jus soli (the right of the soil or the land) meaning that one’s nationality is determined by the place of one's birth; and/or through jus sanguinis (the right of blood) where nationality is determined by the nationality of one's descent (parents). Birthright citizenship is the term used for Jus soli as it is applied under US law.

Contents 1 Legal background 1.1 The Constitution 1.2 Federal law 2 Supreme Court decisions 2.1 Elk v. Wilkins 2.2 United States v. Wong Kim Ark 2.3 Plyler v. Doe 3 Congressional actions 3.1 Children born overseas out of wedlock 4 Impact upon illegal immigration 4.1 Deportation complications 5 See also 6 References 7 Notes

[edit] Legal background

[edit] The Constitution

The Citizenship Clause in the Fourteenth Amendment to the Constitution states that:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

[edit] Federal law

Current (as of 2006) United States Federal law defines ten categories of person who are United States citizens from birth.(8 U.S.C. § 1401} Among them are

• "a person born in the United States, and subject to the jurisdiction thereof"
• "a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe" (see Indian Citizenship Act of 1924).
• "a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States"

[edit] Supreme Court decisions

[edit] Elk v. Wilkins

The United States Supreme Court first ruled on the meaning of this phrase in Elk v. Wilkins, 112 U.S. 94 (1884). The Court determined that children born domestically to American Indians were actually under the jurisdiction of the tribe, which itself had no allegiance to the United States, and was therefore not under the jurisdiction of the United States.

[edit] United States v. Wong Kim Ark

In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court ruled that a person born within the territorial boundaries of the United States is eligible for birthright citizenship regardless of the nationality of his or her parents. The only exceptions to this rule identified in Wong Kim Ark concern diplomats, enemy forces in hostile occupation of the United States, and members of Native American tribes.^[4]

The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark.^[5] Neither in that decision nor in any subsequent case has the Supreme Court explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the Amendment,^[6] although it has generally been assumed that they are.^[7] In some cases the Court has implicitly assumed, or suggested in dicta, that such children are entitled to birthright citizenship: these include INS v. Rios-Pineda^[8] and Plyler v. Doe.^[9] Nevertheless, some claim that Congress possesses the power to exclude such children from US citizenship by legislation:^[6] such legislation is often proposed by individual members of Congress but has never been passed into law.

The Supreme Court briefly approached this issue during Hamdi v. Rumsfeld ^[10]. Hamdi, who was born in the U.S. to Saudis on a temporary visa, was referred to as a "presumed American citizen" by justices Scalia and Stevens.

By amicably entering the country, with the intent of respecting its laws and people, foreigners submit themselves to U.S. jurisdiction.^{[citation needed]} Some, such as Representative Tom Tancredo, who are concerned about so-called "anchor babies," have proposed that illegal immigrants do not subject themselves to the jurisdiction of the United States, arguing that their very presence inside the country constitutes a defiance of the law.^{[citation needed]} In this view, the logic in Elk v. Wilkins should be extended to illegal immigrants, whom Tancredo and others see as under the jurisdiction of their home country.^{[citation needed]}

[edit] Plyler v. Doe

Plyler v. Doe, 457 U.S. 202 (1982) did not explicitly address the question of so-called "anchor babies" born in the United States to illegal immigrant parents; the children dealt with in the case were born outside the U.S. and had entered the country illegally along with their parents.

However, the court's reasoning was significant because it ruled that illegal immigrants residing in a state are "within the jurisdiction" of that state. This implies that the U.S.-born children of such immigrants are "subject to the jurisdiction [of the United States]", and therefore qualify for birthright citizenship under the first clause of the Fourteenth Amendment. This implication is made explicit in a footnote that states

no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful [2].

[edit] Congressional actions

In 2005, a bill was introduced in the House, called the Citizenship Reform Act of 2005 (H.R. 698), in an attempt to amend the Immigration and Nationality Act so that the domestically born children of foreign nationals would not be subject to U.S. jurisdiction, and thus would not be granted automatic citizenship, unless at least one parent was a U.S. citizen or lawful permanent resident. This bill never reached the floor of the House and died in committee when the 109th Congress adjourned at the end of 2006. Bills similar to H.R. 698 have been introduced in previous Congresses, but none of them was ever acted upon either.

On April 192007, Representative Nathan Deal of Georgia, the author of H.R. 698, introduced an almost identical bill in the 110th Congress—H.R. 1940, entitled the Birthright Citizenship Act of 2007.^[11]

Some legislators, unsure whether an act of Congress regarding the citizenship status of anchor babies would survive court challenges, have proposed that the Citizenship Clause be changed through a constitutional amendment. House Joint Resolution 46 in the 109th Congress proposed such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the States.

[edit] Children born overseas out of wedlock

There is an asymmetry in the way children born overseas to unmarried parents, only one of whom is a U.S. citizen, are treated. Children born to American mothers are automatically considered natural-born citizens. But children born to American fathers unmarried to the children's non-American mothers are not considered natural-born citizens (or citizens at all) unless the father takes several actions:

• Provide financial support to the child until he reaches 18,
• Establish paternity by clear and convincing blood evidence,
• Acknowledge his paternity formally before the child has reached his 18th birthday
  • This last element can be shown by acknowledging paternity under oath and in writing; having the issue adjudicated by a court; or having the child otherwise "legitimated" by law. USC § 1409(a).

Because of this rule, unusual cases have arisen whereby children have been born overseas to American men (and non-American women), brought back to the United States as babies without the mother, raised by the American father in the United States, and later held to be deportable as non-citizens in their 20s.^[12][13]. The final element has taken an especially significant importance in these cirumstances, as once the child has reached 18, the father is forever unable to establish his son's paternity to deem his child a natural-born citizen.

This distinction between unwed fathers and mothers was constructed and reaffirmed by Congress in response to concerns that a flood of illegitimate Korean and Vietnamese children would later claim American citizenship as a result of their parentage by American servicemen overseas fighting wars in their countries. In many cases, American servicemen passing through in wartime may not have even realized they had fathered a child. The Supreme Court, by 5-4 majority in Nguyen, established the Constitutionality of this gender distinction.^[12][13]

[edit] Impact upon illegal immigration

[edit] Deportation complications

Complications in deportation efforts ensue when parents are illegal immigrants and children are birthright citizens. Such was the case of Elvira Arellano, a deportation fugitive who secured refuge in a Chicago church, and in the case of Saida Umanzor, an illegal immigrant from Honduras. Umanzor is a fugitive from a 2006 deportation order who was jailed in anticipation of deportation, separating her from her 9-month-old daughter. The daughter, Brittney Bejarano, was born in the United States and is a citizen. After 11 days of detention, Ms. Umanzor was released to house arrest. Social workers took in six children including Ms. Umanzor’s oldest child, a son born in Honduras, and three children of Ms. Umanzor’s illegal immigrant sister who was at work on the day of Ms. Umanzor's arrest. Four of the six children were born in the United States.^[14]

[edit] See also

• United States nationality law
• Birth tourism
• Natural-born citizen

[edit] References

1. ^ Weiner, Myron (1998). Migration and Refugees: Politics and Policies in the United States and Germany. Providence, RI: Berghahn Books, p. 238. ISBN 1571810919. 
2. ^ Walter Dellinger, Assistant Attorney General (1995-12-13). Legislation denying citizenship at birth to certain children born in the United States. Memoranda and Opinions. Office of Legal Counsel, U.S. Department of Justice. Retrieved on 2007-01-04. “A bill that would deny citizenship to children born in the United States to certain classes of alien parents is unconstitutional on its face. A constitutional amendment to restrict birthright citizenship, although not technically unlawful, would flatly contradict the Nation's constitutional history and constitutional traditions.”
3. ^ Justice, Elaine (1996-10-07). "Price questions whether birthright citizenship will continue". Emory Report. Emory University. Retrieved on 2007-01-04.
4. ^ Yen, Chin-Yung (1905). Rights of Citizens and Persons under the Fourteenth Amendment. Lancaster, PA: New Era Publishing Co, 16-17. OCLC 5810096.  Native Americans were later granted U.S. citizenship by Congress in the Indian Citizenship Act of 1924.
5. ^ Ancheta, Angelo N (1998). Race, Rights, and the Asian American Experience. Brunswick, NJ: Rutgers University Press, 103. ISBN 0813524644. 
6. ^ ^{a b} The Heritage Foundation (2005). The Heritage Guide to the Constitution. Washington, DC: Heritage Foundation, 385-386. ISBN 159698001X. 
7. ^ Erler, Edward J; Thomas G West, John A Marini (2007). The Founders on Citizenship and Immigration: Principles and Challenges in America. Lanham, MD: Rowman & Littlefield, 67. ISBN 074255855X. 
8. ^ In INS v. Rios-Pineda (471 U.S. 444) the Supreme Court opinion referred to a child born to deportable aliens as "a citizen of this country"
9. ^ In Plyler v. Doe (457 U.S. 202) the court stated in dictathat illegal immigrants are "within the jurisdiction" of the states in which they reside, and added in a footnote that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
10. ^ [1]
11. ^ Birthright Citizenship Act of 2007
12. ^ ^{a b} Findlaw.com: Nguyen v. INS, 533 U.S. 53 (2001)
13. ^ ^{a b} Cornell University Law School: Nguyen v. INS, 533 U.S. 53 (2001)
14. ^ Julia Preston (November 17, 2007), Immigration Quandary: A Mother Torn From Her Baby, New York Times, <http://www.nytimes.com/2007/11/17/us/17citizen.html?_r=1&adxnnl=1&oref=slogin&adxnnlx=1195398642-SnQnix6DN4GjIxIXeIS3Og>. Retrieved on 2007-11-25

[edit] Notes

• All Senate debate quotes are from the Congressional Globe (precursor of the Congressional Record) for the 39th Congress, 1st Session. P. 2890-95.