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For laws regarding US citizenship, see United States nationality law.
For US citizenship (birthright and naturalized), see Citizenship in the United States.

Birthright citizenship in the United States of America refers a person's acquisition of United States citizenship by virtue of the circumstances of his or her birth. It contrasts with citizenship acquired in other ways, for example by naturalization later in life. Birthright citizenship may be conferred either by jus soli and jus sanguinis. Under United States law, 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 [1] and subject to its jurisdiction is automatically granted U.S. citizenship, [2] as are many (though not all) children born to American citizens overseas.

Contents

Current US law

Citizenship in the United States is a matter of federal law, governed by the United States constitution.

Since the adoption of the Fourteenth Amendment to the constitution on July 9, 1868, birthright citizenship in the United States has been controlled by its Citizenship Clause, which states:

"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.[3]"

Jus soli

As of 2006, United States Federal law (8 U.S.C. § 1401) defines ten categories of person who are United States citizens from birth. According to that law the following acquire citizenship by jus soli:

  • "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"
  • "a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person"

US territories

There are special provisions governing children born in US territories or possessions, including Puerto Rico, the Panama Canal Zone, Panama, the Virgin Islands and Guam. There are also special considerations for those born in Alaska and Hawaii before those territories acquired statehood. For example, 8 U.S.C. § 1402 states that "[a]ll persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth".[4]

Jus sanguinis

Under certain circumstances, US citizenship can be acquired via jus sanguinis from one's parents. The following conditions affect children born outside the US and its outlying possessions to married parents (special conditions affect children born out of wedlock: see below):[5]

  • If both parents are US citizens, the child is a citizen if either of the parents has ever lived in the US prior to the child's birth
  • If one parent is a US citizen and the other parent is a US national, the child is a citizen if the US citizen parent has lived in the US for a continuous period of at least one year prior to the child's birth
  • If one parent is a US citizen and the other parent is not, the child is a citizen if
    • the US citizen parent has been "physically present"[6] in the US before the child's birth for a total period of at least five years, and
    • at least two of those five years were after the US citizen parent's fourteenth birthday.

Children born overseas out of wedlock

There is an asymmetry in the way citizenship status of children born overseas to unmarried parents, only one of whom is a U.S. citizen, is handled.

8 U.S.C. § 1409 paragraph (c) provides that children born abroad after December 24, 1952 to unmarried American mothers are US 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.

8 U.S.C. § 1409 paragraph (a) provides that children born to American fathers unmarried to the children's non-American mothers are also considered US citizens if the father takes several actions:

  • Unless deceased, has agreed to provide financial support to the child until he reaches 18,
  • Establish paternity by clear and convincing evidence and, while the person is under the age of 18 years
    • the person is legitimated under the law of the person’s residence or domicile,
    • the father acknowledges paternity of the person in writing under oath, or
    • the paternity of the person is established by adjudication of a competent court.
      • 8 U.S.C. § 1409 paragraph (a) provides that acknowledgement of paternity 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.

Because of this rule, unusual cases have arisen whereby children have been fathered by American men overseas from 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.[7][8]. The final element has taken an especially significant importance in these circumstances, as once the child has reached 18, the father is forever unable to establish paternity to deem his child a natural-born citizen. [9]

This distinction between unwed American fathers and American mothers was constructed and reaffirmed by Congress out of concern 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 learned they had fathered a child. In 2001, the Supreme Court, by 5-4 majority in Tuan Anh Nguyen v. INS, first established the constitutionality of this gender distinction.[7][8]

Eligibility for office of President

According to the Constitution of the United States only natural born citizens are eligible to serve as President of the United States or as Vice President. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose claim to citizenship is based on jus soli (birthplace) and those whose claim is based on jus sanguinis (parentage). As a result, controversies have erupted over the eligibility of a number of candidates for the office. These questions arise particularly when a candidate is an American citizen by jus sanguinis birthright, but was born outside of the territory of the United States.

A person who is a citizen by birthright but not born on American soil has also been legally considered to be natural born, as in the case of 2008 Republican Presidential candidate John McCain, who was born in Panama. A bipartisan legal review[10] and a unanimous but non-binding Senate resolution[11] both concluded that he is a natural-born citizen.

Legal history

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,[12] 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.

English common law

Birthright citizenship, as with much United States law, has its roots in English common law.[13] 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."[14] 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).

Federal law

The Naturalization Act of 1790 (1 Stat. 103) provided the first rules to be followed by the United States in the granting of national citizenship. Since that time, laws concerning immigration and naturalization in the United States have undergone a number of revisions.

1857 opinion of Supreme Court Justice Benjamin R. Curtis

In his opinion dissenting from the decision in Dred Scott v. Sanford 60 U.S. (How. 19) 393 (1857) Justice Benjamin R. Curtis wrote in considerable detail on this topic. His writing there is too lengthy to requote here in entirety; partially requoted, Justice Curtis wrote,

The first section of the second article of the Constitution uses the language "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in the history of this country at the time of the adoption of the Constitution, which referred Citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies, were the subjects of the King; that by the Declaration of independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, [...] .
The Constitution having recognized that persons born within the several States are citizens of the United States, one of four things must be true:
  First. That the constitution itself has described what native-born persons shall or shall not be citizens of such State, and thereby be citizens of the United States; or,
  Second:. That it has empowered Congress to do so; or,
  Third. That all free persons, born within the several States, are citizens of the United States; or,
  Fourth. That it is left to each State to determine what free persons, born within its limits, shall be citizens of such State, and thereby be citizens of the United States.
If there is such a thing as Citizenship of the United States acquired by birth within the States, which the Constitution expressly recognizes, and no one denies, then those four alternatives embrace the entire subject, and it only remains to select that one which is true.
[...]
The answer is obvious. The Constitution has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States; [...] [15][italics in original]

1862 opinion of the U.S. Attorney General

In 1862, Secretary of the Treasury Salmon P. Chase sent a query to Attorney General Edward Bates asking whether or not "colored men" can be citizens of the United States. Attorney General Bates responded on On November 29, 1862, with a 27 page opinion concluding, "I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, ... .[16][italics in original]" In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,

... our constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

If this be a true principle, and I do not doubt it, it follows that every person born in a country is, at the moment of birth, prima facie a citizen; and who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the natural born right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.[17][italics in original]

Civil Rights Act of 1866

This act declared, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."[18]

Fourteenth Amendment to the United States Constitution

Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, birthright citizenship in the United States has been controlled by its Citizenship Clause, which states:

"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.[19]"

Expatriation Act of 1868

This act, a companion piece to the Fourteenth Amendment, was approved on 27 July, 1868.[20]

The Expatriation Act of 1868 led President Ulysses S. Grant to write, in 1873, that that United States had "led the way in the overthrow of the feudal doctrine of perpetual allegiance".[21]

Dr. Edward J. Erler of California State University, San Bernardino, and Dr. Brook Thomas of the University of California, Irvine, have argued that this Act was an explicit rejection of birth-right citizenship as the ground for American citizenship,[22] basing that argument on the debate that surrounded the passage of this act.[23][24].

Cases of interest

The Slaughter-House Cases

In the Slaughter-House Cases, 83 U.S. 36 (1873) — a civil rights case not dealing specifically with birthright citizenship — a Supreme Court majority mentioned in passing that "the phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States" [25]

Being born in the US

In Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court denied the birthright citizenship claim of an American Indian. The court ruled that being born in the territory of the United States is not sufficient for citizenship; those who wish to claim citizenship by birth must be born subject to the jurisdiction of the United States. The court's majority held that the children of Native Americans were

"no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations."[26]

Native Americans were granted U.S. citizenship by Congress half a century later in the Indian Citizenship Act of 1924, which rendered the Elk decision obsolete.

Children of immigrants

In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), 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. Although any language in Wong Kim Ark that suggests the Court's opinion and rationale could be expanded to include the children of illegal immigrants would be mere dicta as Wong's parents were in the country legally.[27] 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.[28] The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark.[29]

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,[30] although it has generally been assumed that they are.[27] 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.

Canadians transferred to US hospitals

Since the majority of Canadians live in the relatively narrow strip of land close to the long border with the United States, Canadians in need of urgent care are occasionally transferred to nearby American medical facilities. In some circumstances, Canadian mothers facing a high-risk delivery have given birth in American hospitals. Such children are American citizens by birthright. [31] Since, in this regard, Canadian law is similar to that of the US, children born in Canada of American parents are also Canadian citizens by birthright. [32] In both situations that birthright citizenship is passed on to their children. In some cases birth in an American hospital (sometimes called "border babies") has resulted in people living much of their lives in Canada and unknowingly never holding Canadian Citizenship, a group sometimes called Lost Canadians [33]

Current controversy

Original meaning

There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the 14th amendment to the U.S. constitution.[34] During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as excluding not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” He was supported by other senators, including Edgar Cowan, Reverdy Johnson, and Senate Judiciary Committee Chairman Lyman Trumbull.[35] Howard additionally stated the word jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now"[35] and that the United States possessed a “full and complete jurisdiction” over the person described in the amendment.[36][37][35]

Other senators, including Senator John Conness,[38] supported the amendment, believing citizenship ought to be extended to children of foreigners.

Modern dispute

In the late 1990s opposition arose over the longstanding practice of granting automatic citizenship on a jus soli basis to American-born children of illegal immigrants and tourists[39] as fears grew in some circles that the existing law encouraged parents-to-be to come to the United States to have children in order to improve the parents' chances of attaining legal residency themselves.[38][40] Some media correspondents[41][42] and public leaders, including former congressman Virgil Goode, have controversially dubbed this the "anchor baby" situation,[43][44] and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.

Bills have been introduced from time to time in Congress which have sought to declare U.S.-born children of foreign nationals not to be subject to the "jurisdiction" of the United States, and thus not entitled to citizenship via the 14th Amendment, unless at least one parent were a U.S. citizen or a lawful permanent resident. For example, Representative Nathan Deal (a Republican from Georgia) introduced the "Citizenship Reform Act of 2005" (H.R. 698) in the 109th Congress, and the "Birthright Citizenship Act of 2007" (H.R. 1940)[45] in the 110th Congress. Neither these nor any similar bills, however, have ever been approved by 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.[46] Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment;[47] however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.

See also

Notes

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

References

  1. ^ See 8 U.S.C. § 1101(a)(36) and 8 U.S.C. § 1101(a)(38) Providing the term “State” and "United States" definitions on the U.S. Federal Code, Inmigration and Nationality Act 8 U.S.C. § 1101a
  2. ^ Weiner 1998, p. 238.
  3. ^ Meese 2005, p. 35
  4. ^ INA: ACT 302 - PERSONS BORN IN PUERTO RICO , U.S. Citizenship and Immigration Services.
  5. ^ 8 U.S.C. § 1401
  6. ^ including, in some circumstances, time spent overseas when a parent who is a US government employee is posted overseas
  7. ^ a b Findlaw.com: Nguyen v. INS, 533 U.S. 53 (2001)
  8. ^ a b Cornell University Law School: Nguyen v. INS, 533 U.S. 53 (2001)
  9. ^ Under a fact situation similar to Nguyen, the effect might be different today if the child's 18th birthday were after February 27, 2001, as per the Child Citizenship Act of 2000, the child might automatically become a U.S. citizen upon admission to the country as a lawful permanent resident. This type of citizenship, however, is not considered "birthright" or natural, and the subject would most likely be construed as a "naturalized" citizen. See the U.S. Department of State's page on the Child Citizenship Act of 2000.
  10. ^ "Lawyers Conclude McCain Is "Natural Born", Associated Press via CBS News (2008-03-28). Retrieved 2008-05-23.
  11. ^ Dobbs, Michael. "McCain's Birth Abroad Stirs Legal Debate", The Washington Post (2008-05-02). Retrieved 2008-10-24.
  12. ^ 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), http://www.usdoj.gov/olc/deny.tes.31.htm, retrieved 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." 
  13. ^ Schuck 2006, p. 96
  14. ^ Justice, Elaine (1996-10-07), "Price questions whether birthright citizenship will continue", Emory Report (Emory University), http://www.emory.edu/EMORY_REPORT/erarchive/1996/October/ERoct.7/10_7_96price_questions.html, retrieved 2007-01-04 
  15. ^ United States.; Supreme Court, Dred Scott, John F. A. Sanford, Benjamin Chew Howard (1857), A Report of the Decision of the Supreme Court of the United States and the Opinions of the Judges Thereof, in, D. Appleton, pp. 576–582, http://books.google.com/books?id=2LoDAAAAQAAJ .
  16. ^ Bates, Edward (1862), Opinion of Attorney General Bates on Citizenship, Government Printing Office, pp. 26–27, http://books.google.com/books?id=zo5EJE0sorgC .
  17. ^ Bates 1862, p. 12, Op. cit.
  18. ^ Meese 2005, p. 384
  19. ^ Meese 2005, p. 35
  20. ^ Expatriation Act, 14th-amendment.com, quoting Sanger 1869, pp. 223-224, http://www.14th-amendment.com/Statutes_Proclamations/Statutes/FORTIETH_CONGRESS-Sess._II.-Ch._249/page_frame.htm .
  21. ^ Snow (1893), Cases and Opinions on International Law, p. 218.
  22. ^ Transcript, Testimony of Edward J. Erler before the House Subcommittee on Immigration and Claims, June 25, 1997.
  23. ^ Erler 2003, pp. 191-192, Erler 2007, pp. 50-51
  24. ^ Thomas 2007, pp. 193-194.
  25. ^ 83 U.S. at 73.
  26. ^ 112 U.S. at 102.
  27. ^ a b Erler 2007, p. 67.
  28. ^ Carlisle & Golson 2007, p. 170
  29. ^ Ancheta 1998, p. 103.
  30. ^ Meese 2005, pp. 385-386
  31. ^ Some Canadian mothers forced to give birth in U.S., KOMO TV News, http://www.komonews.com/news/10216201.html, retrieved 2009-01-31 
  32. ^ Citizenship Act PART I: THE RIGHT TO CITIZENSHIP, Federation of Law Societies of Canada, http://www.canlii.org/ca/sta/c-29/sec3.html, retrieved 2009-02-10 
  33. ^ Citizenship and Immigration Canada True or False? Children born outside of Canada, Department of Citizenship and Immigration Canada, http://www.cic.gc.ca/english/department/media/facts/born_outside.asp., retrieved 2009=27=10 
  34. ^ Messner, Emily. “Born in the U.S.A. (Part I)”, The Debate, washingtonpost.com (2006-03-30).
  35. ^ a b c Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2890.
  36. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2895.
  37. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893. Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."
    Reverdy Johnson said in the same debate: "If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States."
  38. ^ a b "[...] During that debate, Senator Edgar Cowan of Pennsylvania objected to the citizenship clause of the 14th Amendment. 'Is the child of the Chinese immigrant in California a citizen?' he asked on the Senate floor. Senator John Conness of California said the answer should be 'yes.' 'The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens,' Mr. Conness said.", Robert Pear (1996-08-07), Citizenship Proposal Faces Obstacle in the Constitution, New York Times, http://query.nytimes.com/gst/fullpage.html?res=9503E7DE143EF934A3575BC0A960958260 
  39. ^ Lee, Margaret (12 May 2006), U.S. Citizenship of Persons Born in the United States to Alien Parents, Congressional Research Service Report for Congress, http://digital.library.unt.edu/govdocs/crs/data/2006/upl-meta-crs-9011/RL33079_2006May12.pdf?PHPSESSID=1ca373c497c7db6a81c7ca74a1445530.pdf, retrieved 2008-08-16 
  40. ^ 'Border baby' boom strains S. Texas, Houston Chronicle, September 24, 2006, http://www.chron.com/CDA/archives/archive.mpl?id=2006_4196974, retrieved 2008-08-02 
  41. ^ Simmons, Kathryn. "Anchor babies tie illegal immigrants to US." NBC2 News. November 25, 2005.
  42. ^ Erbe, Bonnie. "Anchor Babies hurt working class." Seattle Times. May 18, 2005.
  43. ^ Goode-Perriello Exchange, Sorensen Institute Candidates' Forum, September 3, 2008, http://www.youtube.com/watch?v=nhCEjT-Mgwo, retrieved 2008-10-03 
  44. ^ Rep. Gayle Harrell says immigration is 'No. 1 issue', Fort-Pierce Tribune, June 30, 2008, http://www.tcpalm.com/news/2008/jun/30/30gtharrell-immigration-no-1-issue/, retrieved 2008-07-14 
  45. ^ Birthright Citizenship Act of 2007
  46. ^ U.S. Representative Anthony Beilenson (D-CA). "Case for Correction By Constitutional Amendment." The Social Contract. Volume 7, Number 1 (Fall 1996).
  47. ^ S. J. Res. 6, thomas.loc.gov, January 16, 2009, http://thomas.loc.gov/cgi-bin/query/z?c111:S.J.RES.6:, retrieved 2009-02-27 

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