Definitions

grant citizenship to

Birthright citizenship in the United States of America

Birthright citizenship in the United States of America follows from a hybrid rule of jus soli and jus sanguinis. Under the American system, any person born within the United States (including the overseas territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands) and subject to its jurisdiction is automatically granted U.S. citizenship, as are many (though not all) children born to American citizens overseas.

When accorded automatic birthright citizenship based on birth on American soil, a newborn's status is generally unaffected by the legal status or citizenship of that individual's mother or father.

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, 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. 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.

Legal background

English Common Law

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. 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 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."

Senator Howard, who wrote this Citizenship clause commented,

"This amendment which I have clarified is simply declaratory of what I regard as the law of the land already..[It] does not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of person. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."

Federal law

Current (as of 2006) United States Federal law defines ten categories of person who are United States citizens from birth.() 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"

People born in most of the territories of the United States are also citizens from birth. As of 2008, the only exception is that people born in American Samoa are only U.S. nationals at birth and not citizens, though they may later reside in the U.S. and apply for citizenship.

Cases of interest

Native Americans

In Elk v. Wilkins, , the United States Supreme Court emphasized that being born in the territory of the United States is not sufficient for citizenship. Those who wish to become citizens must be subject to the jurisdiction of the United States. 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.

Subsequently, Native Americans were granted U.S. citizenship by Congress in the Indian Citizenship Act of 1924.

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 abroad to unmarried American mothers are automatically considered natural-born citizens, as long as the mother has lived in the US for a continuous period of at least one year, anytime prior to the birth. 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.. 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 Tuan Anh Nguyen v. INS, established the constitutionality of this gender distinction.

Children of immigrants

In the case of United States v. Wong Kim Ark, , the Supreme Court ruled that a person who

  • is born in the United States
  • of parents who, at the time of his birth, are subjects of a foreign power
  • whose parents have a permanent domicile and residence in the United States
  • whose parents are there carrying on business and are not employed in any diplomatic or official capacity of the foreign power to which they are subject

becomes, at the time of his birth, a citizen of the United States, by virtue of the first clause of the 14th amendment of the Constitution. Children born to foreign diplomats or, hypothetically, 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. The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark.

The Supreme Court has never explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the 14th Amendment, although it has generally been assumed that they are.

Current controversy

In recent years, the issue of granting automatic citizenship on a jus soli basis to American-born children of illegal immigrants and tourists has become controversial as fears have grown in some circles that the present law encourages parents-to-be to come to the United States to have children, in order to improve the parents' chances of attaining legal residency themselves. Some critics, including Congressman Virgil Goode, have controversially dubbed this the "anchor baby" situation, and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.

In 2005, a bill was introduced in the House of Representatives, 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. This bill, like its predecessors, has yet to be acted upon in Congress.

Some legislators, unsure whether such acts of Congress 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.

See also

References

Notes

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

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