Birthright citizenship in the United States
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Birthright citizenship in the United States is United States citizenship acquired by a person automatically, by operation of law. This takes place in two situations: by virtue of the person's birth within United States territory or because one or both of their parents is (or was) a US citizen. Birthright citizenship contrasts with citizenship acquired in other ways, for example by naturalization.
Birthright citizenship is guaranteed to most people born on U.S. territory by the first part of the Citizenship Clause introduced by the Fourteenth Amendment to the United States Constitution (adopted July 9, 1868), 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".
The Amendment overrode the Supreme Court decision in Dred Scott v. Sandford (1857) that denied US citizenship to African Americans, whether born in the United States or not, and whether a slave or a free person. Pursuant to the Fourteenth Amendment and the Immigration and Nationality Act (INA) a person born within and subject to the jurisdiction of the United States automatically acquires US citizenship, known as jus soli ("right of the soil"). This includes the territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands), and the U.S. Virgin Islands. The "subject to the jurisdiction thereof" clause excluded Native Americans living under tribal sovereignty, and U.S.-born children of foreign diplomats. Birthright citizenship was later extended to U.S.-born Native American subjects by the Indian Citizenship Act of 1924. Federal law also grants birthright citizenship to children born elsewhere in the world to U.S. citizens (with certain exceptions), known as jus sanguinis ("right of blood").
Some people oppose the application of birthright citizenship to children of illegal aliens. Some argue citizenship is not guaranteed by the Fourteenth Amendment to the children of illegal aliens, but this interpretation has never been endorsed by federal courts. The Pew Hispanic Center estimates that approximately 7.5% of all births in the U.S. (about 300,000 births per year) are to illegal aliens. The Pew Hispanic Center also estimates that there are 4.5 million children born to illegal aliens who received citizenship by birth in the United States, while the Migration Policy Institute estimates that there are 4.1 million children. Both estimates exclude anyone 18 and older who might have benefited. On January 24, 2020, the Trump administration adopted a policy to make it more difficult for pregnant foreign women to come to the US where it is suspected that the purpose is to give birth on US soil and thereby to ensure their children become US citizens, a practice commonly called "birth tourism".
Current U.S. 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 United States Constitution on July 9, 1868, the citizenship of persons born 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."
Statute, by birth within U.S.
Under United States Federal law (8 U.S.C. § 1401), a person is a United States national and citizen if:
- the person is born in the United States, and subject to the jurisdiction thereof
- the person is born in the United States to a member of an Indian, Inuit, Aleutian, or other aboriginal tribe (see Indian Citizenship Act of 1924)
- the person is of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of 21 years, not to have been born in the United States
- the person is 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.
The Fourteenth Amendment applies to incorporated territories, so people born in incorporated territories of the U.S. are automatically U.S. citizens at birth.
There are special provisions governing children born in some current and former U.S. territories or possessions, including Puerto Rico, the Panama Canal Zone, the Virgin Islands, Guam, and the Northern Mariana Islands. For example, 8 U.S.C. § 1402 states that "All persons born in Puerto Rico [between] April 11, 1899, and ... January 13, 1941 ... residing on January 13, 1941, in Puerto Rico ... [and] persons born in Puerto Rico on or after January 13, 1941, ... are citizens of the United States at birth."
According to congressional enactment, persons born in American Samoa are American nationals but not U.S. citizens. A 2016 ruling by the D.C. Circuit Court upheld the United States government's position interpretation that American Samoa is not "in the United States" for purposes of the Fourteenth Amendment and thus American Samoans are nationals but not citizens at birth, A 2021 ruling by the 10th Circuit Court similarly upheld the government's position and reversed a lower court ruling that said American Samoan plaintiffs were United States citizens at birth.
According to 8 U.S.C. § 1408 persons born (or found, and of unknown parentage, under the age of 5) in an outlying possession of the U.S. (which is defined by 8 U.S.C. § 1101 as American Samoa and Swains Island) are U.S. nationals but not citizens, unless otherwise provided in section 1401. The U.S. State Department publication titled Historical Background to Acquisition by Birth in U.S. Territories and Possessions explains the complexities of this topic.
U.S. waters and airspace
A child born in U.S. waters or airspace is a U.S. citizen by birth. See 8 FAM 301.1–4 ("Birth in U.S. Internal Waters and Territorial Sea"), 8 FAM 301.1–5 ("What Is Birth in U.S. Airspace?"), and 8 FAM 301.1–6 ("Documenting Birth in U.S. Waters and U.S. Airspace").
Statute, by parentage
Under certain circumstances, children may acquire U.S. citizenship from their parents. The Naturalization Act of 1790 provided for birthright citizenship for children born out of U.S. jurisdiction to two citizen parents. The Naturalization Act of 1795, which increased the period of required residence from two to five years, introduced the Declaration of Intention requirement, or "first papers", which created a two-step naturalization process, and omitted the term "natural born". The Act specified that naturalized citizenship was reserved only for "free white person[s]" and changed the requirement in the 1790 Act of "good character" to read "good moral character". The Naturalization Act of 1798 increased the period necessary for immigrants to become naturalized citizens in the United States from 5 to 14 years.
In 1855, birthright citizenship was extended to children with citizen fathers and noncitizen mothers. In 1934, it was extended to children with citizen mothers and noncitizen fathers. From 1940 until 1978, a child born abroad who acquired U.S. citizenship at birth but had only one U.S. citizen parent had to fulfill a "retention requirement" of residing, or being physically present, in the United States or its outlying possessions for a certain number of years before reaching a specified age. Otherwise the child would not retain the U.S. citizenship (hence the name "retention requirement"). The retention requirement was changed several times, eliminated in 1978, and subsequently eliminated with retroactive effect in 1994.
Children born overseas to married parents
The following conditions affect children born outside the U.S. and its outlying possessions to married parents (special conditions affect children born out of wedlock: see below):
- If both parents are U.S. citizens, the child is a citizen if either of the parents has had residency in the U.S. prior to the child's birth
- If one parent is a U.S. citizen and the other parent is a U.S. national, the child is a citizen, if the U.S. citizen parent has lived in the U.S. for a continuous period of at least one year prior to the child's birth
- If one parent is a U.S. citizen and the other parent is not a U.S. citizen or national, the child is a citizen if the U.S. citizen parent has been "physically present" in the U.S (including, in some circumstances, time spent overseas when a parent who is a U.S. government employee is posted overseas). 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 U.S. citizen parent's fourteenth birthday.
Children born overseas to unmarried parents
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.
Title 8 U.S.C. § 1409 paragraph (c) provides that children born abroad after December 24, 1952, to unmarried American mothers are U.S. citizens, as long as the mother has lived in the U.S. for a continuous period of at least one year at any time 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 considered U.S. citizens only if the father meets the "physical presence" conditions described above, and the father takes several actions:
- Unless deceased, has agreed to provide financial support while the child is under the age of 18 years
- 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.
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. 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 citizen.
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 1998, the Supreme Court upheld the discriminatory provisions of section 1409 in Miller v. Albright in a 6–3 decision which held that a woman's ties to a child are biological, but a father's ties to a child are a legally constructed choice.: 100–105 In 2001, the Supreme Court, by 5–4 majority in Nguyen v. INS, reaffirmed the constitutionality of this gender distinction.: 224 
Eligibility for office of President
According to the Constitution of the United States only natural born citizens (or citizens at the time of the adoption of the Constitution) 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 citizenship is based on jus sanguinis (parentage) and those whose citizenship is based on jus soli (birthplace). As a result, controversies have arisen over the eligibility of a number of candidates for the office.
Throughout the history of the United States, the fundamental legal principle governing citizenship has been that birth within the United States grants U.S. citizenship; although enslaved persons and children of enslaved mothers, under the principle of partus sequitur ventrem, were excluded, as were married women until the middle of the 20th century. The United States did not grant citizenship after the American Civil War to all 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. Those living in tribes on reservations were generally not considered citizens until passage of the Indian Citizenship Act of 1924, although by that time nearly two-thirds of American Indians were already citizens.
English common law
Birthright citizenship, as with much United States law, 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 well-established in the antebellum United States. Justice Joseph Story described the rule in Inglis v. Trustees of Sailor's Snug Harbor:
The rule commonly laid down in the books is, that every person who is born within the ligeance of a sovereign is a subject; and, e converso, that every person born without such allegiance is an alien. . . . Two things usually concur to create citizenship; first, birth locally within the dominions of the sovereign; and secondly, birth within the protection and obedience, or in other words, within the ligenance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to the sovereign, as such, de facto.
Justice Story described as exceptions to the rule the children of ambassadors and the children of occupying enemy soldiers.
As these exceptions were narrow, the rule was quite generous in scope. As one antebellum American treatise put it:
Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.
In the 1844 New York case of Lynch v. Clarke, the court held that the common law rule applied in the United States, and ruled that a child born in United States of a temporary visitor to the country was a natural-born citizen of the United States under this rule.
Chancellor James Kent, in his influential Commentaries on American Law, framed the rule in terms similar to what would become the citizenship clause of the Fourteenth Amendment: “Natives,” he said, “are all persons born within the jurisdiction of the United States,” while “[a]n alien,” conversely, “is a person born out of the jurisdiction of the United States.”
The Supreme Court thus stated that the rule was "ancient and fundamental", i.e., well-established common law, in 1898: "the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." United States v. Wong Kim Ark, 169 U.S. 649 (1898).
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. While the law did not specifically prevent women from having their own citizenship, the law recognized only the authority of a husband if a woman was married. Under the practice of coverture, the control of the physical body of married woman, as well as rights to her person or property, were the possession of her husband. Her loyalty to her spouse was deemed more significant than any obligation she might have to the state.: xxiii Judicial rulings on domestic relations held that infants, slaves, and women were unable to participate in public life, because they lacked sufficient judgement and could not control either their own will or property. Since that time, laws concerning immigration and naturalization in the United States have undergone a number of revisions.
Naturalization Act of 1804 and 1855
The Naturalization Act of 1804 specifically confirmed that married women's access to citizenship was tied to their state of marriage. The law stated that widows and children of aliens who had complied with the declaration of intent to become a citizen specified in the Act of 1802, but died prior to being naturalized were entitled to the rights and privileges of citizenship, if they took the necessary oath. Provisions of the Naturalization Act of 1855 specified that a woman married to a native-born citizen or a naturalized alien, or a child born on foreign soil, but to a citizen father, were citizens, as long as they were white.
Dred Scott v. Sandford
Justice Roger B. Taney in the majority opinion in Dred Scott v. Sandford 60 U.S. (How. 19) 393 (1857) held that African Americans, whether slave or free, had never been and could never become citizens of the United States, as they were excluded by the Constitution. The political scientist Stuart Streichler writes that Taney's decision was based on "a skewed reading of history". Justice Benjamin R. Curtis in his dissent showed that under the Articles of Confederation, free blacks had already been considered citizens in five states and carried that citizenship forward when the Constitution was ratified.
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 has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States ...
Justice John McLean, in his dissent, said of Dred Scott himself: “Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen.”
1862 opinion of the Attorney General of the United States
In 1862, Secretary of the Treasury Salmon P. Chase sent a question to Attorney General Edward Bates asking whether or not "colored men" can be citizens of the United States. Attorney General Bates responded 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, ..." [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. [italics in original]
Civil Rights Act of 1866
The Civil Rights Act of 1866 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." ("Indians not taxed" referred to Native American tribal members living on reservations.)
Representative James F. Wilson of Iowa, upon introducing the citizenship clause of the Act, stated that it was "merely declaratory of what the law now is," and recounted at length the common law history of birthright citizenship. Representative John Bingham of Ohio affirmed that the clause was "simply declaratory of what is written in the Constitution," with specific reference to the "natural-born citizen" qualification for presidential office.
Fourteenth Amendment to the United States Constitution
Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, citizenship of persons born 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."
Expatriation Act of 1868
This act, a companion piece to the Fourteenth Amendment, was approved on July 27, 1868. The law allowed Americans to voluntarily give up their citizenship. Though it did not provide specific requirements to do that, subsequent court cases, such as that of Nellie Grant Sartoris, ruled that marriage to an alien was a voluntary expatriation. Further clarifications from rulings maintained that a married woman could lose her citizenship if she lived abroad with her alien spouse or if her marriage automatically bestowed upon her the nationality of her husband.: 89
The Expatriation Act of 1868 led President Ulysses S. Grant to write in 1873, that the United States had "led the way in the overthrow of the feudal doctrine of perpetual allegiance".
Edward J. Erler of California State University, San Bernardino, and Brook Thomas of the University of California at Irvine, have argued that this Act was an explicit rejection of birth-right citizenship as the ground for American citizenship, basing that argument on the debate that surrounded the passage of this act. Professor Garrett Epps of the University of Baltimore disagrees: "The Expatriation Act is not, as Erler imagines, 'a necessary companion piece to the citizenship clause.' In fact, there is no relationship at all between the two. The act was written in a different year, by different authors, on a different subject, and in a different Congress, than the Fourteenth Amendment." American courts had long recognized that the rule of perpetual allegiance "does not stand upon the same reason or principle as the common law doctrine of allegiance by birth, and does not follow from the adoption of the latter.", concluding in 1844 that, "A diversity of opinion and of practice on the subject of perpetual allegiance prevailed in the colonies and in the states, under the old Confederation. [...] [I]n the national government, the common law rale of perpetual allegiance did not prevail; while the universal prevalence of the rule of allegiance by birth in all the colonies and states up to , would be a convincing argument that such rule became the national law.
1873 legal opinions on the 14th Amendment
In 1873, The Attorney General of the United States published the following legal opinion concerning the Fourteenth Amendment:
The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.
The Attorney General clarified this remark as follows:
The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father. The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it. Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father.
That same year, the trial of Susan B. Anthony resulted in a ruling by Associate Justice of the Supreme Court of the United States Ward Hunt, in the U.S. Circuit Court for the Northern District of New York. He held that neither the Fourteenth Amendment, which prohibited states from abridging the rights and privileges of citizens, nor the Fifteenth Amendment, which granted citizens the right to vote, applied to Anthony, because voting rights and conditions were defined by the state and not the national government. Since denying the vote on the basis of sex was not prohibited by the Fifteenth Amendment and sanctions for violating the second section of the Fourteenth Amendment only defined breaches to male citizens' rights, Hunt determined that a state could define unequal rights to different people.
Expatriation Act of 1907
The Expatriation Act of 1907 codified that women married to aliens lost their citizenship upon marriage to a non-citizen. It did not matter if they resided in the United States or abroad and was applied retroactively and without notice.: 319–320 It also prevented immigrant women from being able to obtain their own US nationality, if their spouse was not or could not be naturalized, because he was racially excluded, was an anarchist, or was a practitioner of polygamy.: 1461, 1465 If her husband later was able to acquire US citizenship, a wife automatically gained his new nationality. Women did not have their own nationality papers, instead they were required to provide a copy of their marriage record and husband's proof of citizenship.
Cable Act of 1922
As soon as women gained the right to vote, they began pressuring Congress to eliminate provisions which automatically reassigned women's citizenship upon their marriage.: 1464 In 1922, the Cable Act was passed which guaranteed women independent citizenship if their spouse was eligible for naturalization. A wife's nationality was still dependent upon her husband's status and if he was ineligible, or if she lived abroad in her husband's country for two years, or in any foreign nation for five years, her nationality was forfeited.: 1464 Ineligibility applied to anyone who was neither white nor of African descent.: 325 The Act also allowed American-born women who had lost their citizenship by virtue of marriage a means to repatriate, if they returned to the United States. However, to re-enter the United States and apply under a petition for naturalization, required that her return did not exceed the restricted the number of immigrants from each country specified in the Emergency Quota Act of 1921.: 1466 The same requirement did not apply to foreign wives of American men. Wives and children of male citizens were exempt from restrictive quotas.: 1468
Asian Exclusion Act
Under the terms of the Asian Exclusion Act, Asians were not only excluded from naturalizing, but were prohibited from entering the country. It also provided that an American-born woman who lost her citizenship and was married or had been married to an immigrant who was ineligible for US citizenship was considered to have been "born in the country of which [they were] a citizen or subject".: 1466 In 1923, a Supreme Court ruling, United States v. Bhagat Singh Thind retroactively stripped citizenship from Asian men, and combined with the provisions of the Cable Act, automatically deprived their wives of American citizenship as well.: 1467 Even if she remained in the United States, an American woman's citizenship was automatically revoked if she married a man of Asian descent. If she left the country, she could not be readmitted to the United States.: 1466 Under terms of the law, American men could petition for their foreign-born wives to lawfully immigrate, but American women were barred from petitioning on behalf of their husbands.: 422
Indian Citizenship Act of 1924
The Indian Citizenship Act of 1924 provided "That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States". This same provision (slightly reworded) is contained in present-day law as section 301(b) of the Immigration and Nationality Act of 1965 (8 U.S.C. § 1401).
The Equal Nationality Act of 1934
The Equal Nationality Act of 1934 allowed a married woman with children who had been born abroad to transmit her citizenship to her children, provided the mother had resided in the United States before the child was born.: 43 : 420 The law was not retroactive, thus children born before 1934 had difficulty in proving claims to derivative citizenship from their mother. The maternal derivative citizenship for children born abroad before 1934 was not confirmed until 1989.: 43 Previously only fathers were able to transmit derivative citizenship to their offspring. The law had no provisions for derivative nationality if the child(ren) were illegitimate.: 420
Nationality Acts of 1936 and 1940
The Nationality Act of 1936 reaffirmed that a woman who had lost her citizenship through marriage to an alien before September 22, 1922, could regain her citizenship if the marriage had terminated, as long as she took the oath of citizenship. It did not repeal the Cable Act, but the Nationality Act of 1940 repealed sections 1, 2, 3, and 4, as well as amendments from 1930, 1931, and 1934 of the Cable Act.: 1173 The 1940 law allowed all women who lost their citizenship because of marriage to repatriate without regard to their marital status upon swearing the oath of allegiance. It also specified that derivative citizenship for children born out of wedlock could pass from mother to child, but required that a father legitimize the child declaring paternity before it reached majority.: 420
McCarran–Walter Act of 1952
The McCarran–Walter Act of 1952 recognized that previous nationality laws had discriminated against married women and sought to remove inequalities by replacing gendered identifiers with the term "spouse".: 424–425 It provided that children born outside of the United States had derivative citizenship if at least one of its unmarried parents was a citizen of the United States and had resided in the country for one year prior to the child's birth. If the parents were married, the citizen parent had to have lived five years in the United States after attaining age 14 and cumulatively have resided for ten years in the United States. Exception was made for active duty military personnel's service to be considered residence in the United States.: 235–236 The residency requirement in the United States meant that if a citizen parent, who was not in the military, was under the age of 19 when the child was born abroad, their child could not derive citizenship from the citizen parent. Though amended in 1978 and 1984, the discrimination based upon marital status and age remained unchanged until 1986. At that time, the law was amended to shorten the parent's residency time in the United States to five years, with at least 2 of those years being after the 14th birthday of the parent.
U.S. Supreme Court case law
Sailor's Snug Harbor
In the case of Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830)[a] the Supreme Court decided the question of the disposition of the estate of a man born in New York State in 1776. The Supreme Court resolved complicated questions of how citizenship had been derived during the Revolutionary War. The court found that the jus soli is so consistent in American Law as to automatically grant American citizenship to children born in New York City between the Declaration of Independence and the Landing at Kip's Bay in 1776, but not to children born in New York during the British occupation that followed.
Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.
The Slaughter-House Cases
In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)[b]—a civil rights case not dealing specifically with birthright citizenship—a majority of the Supreme Court 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".
Elk v. Wilkins
In Elk v. Wilkins, 112 U.S. 94 (1884),[c] the Supreme Court denied the birthright citizenship claim of an "Ameerican Indian" (referring there to Native Americans). 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.
Thus, Native Americans who voluntarily quit their tribes would not automatically become U.S. citizens. 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.
United States v. Wong Kim Ark
In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898),[d] the Supreme Court was presented with the following question:
[Whether a] child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "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."
The decision centered upon the 14th Amendment's reference to "jurisdiction", and concluded:
the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle."
Mackenzie v. Hare
Ethel Mackenzie was an American-born woman who married a British subject in 1909. When she attempted to register to vote in 1911 in California, Mackenzie was refused because she was not a citizen.: 41 She was advised that if her husband became a US citizen, she could register, but Mackenzie believed that her citizenship was a birthright and refused to have her husband naturalize.: 42  Mackenzie filed a suit in the California federal courts against the San Francisco Election Commissioners. She alleged she had not lost her nationality under the Expatriation Act of 1907 by virtue of the birthright citizenship provisions of the Fourteenth Amendment to the United States Constitution. Her claim was denied and she escalated the case to the Supreme Court. In Mackenzie v. Hare 239 U.S. 299, 311 (1915), the justices ruled that "Marriage of an American woman with a foreigner is tantamount to voluntary expatriation".
Plyler v. Doe
Plyler v. Doe, 457 U.S. 202 (1982),[e] involved illegal alien children and their rights to public education. This case did not explicitly address the question of 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.
The court did suggest (in dicta) that illegal immigrants are "within the jurisdiction" of the states in which they reside, and 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.
In 2006 judge James Chiun-Yue Ho, who President Donald Trump would later appoint to the United States Court of Appeals for the Fifth Circuit, wrote in a law review article that with the Plyler decision "any doubt was put to rest" whether the 1898 Wong Kim Ark decision applied to illegal aliens given that "[in Plyler] all nine justices agreed that the Equal Protection Clause protects legal and illegal aliens alike. And all nine reached that conclusion precisely because illegal aliens are 'subject to the jurisdiction' of the U.S., no less than legal aliens and U.S. citizens."
Canadians transferred to U.S. hospitals
Since the majority of Canadians live in the relatively thin strip of land close to the long border with the United States, Canadians in need of urgent medical care are occasionally transferred to nearby American medical centers. In some circumstances, Canadian mothers facing high-risk births have given birth in American hospitals. Such children are American citizens by birthright.
In these circumstances, Canadian laws are similar to those of the United States. Babies born in Canada of American parents are also Canadian citizens by birthright.
In both of these situations, the birthright citizenship is passed on to their children, born decades later. In some cases, births in American hospital (sometimes called "border babies") have resulted in persons who lived for much of their lives in Canada without knowing that they had never had official Canadian citizenship. Some of these people have been called Lost Canadians.
Another problem arises where a Canadian child, born to Canadian parents in a U.S. border hospital, is treated as a dual citizen and added to the United States tax base on this basis despite having never lived, worked nor studied in that nation. While Canadian income tax is payable only by those who reside or earn income in Canada, the U.S. Internal Revenue Service taxes its citizens worldwide. Campobello Island is particularly problematic as, while legally part of New Brunswick, the only year-round fixed link off the island leads not to Canada but to Lubec, Maine—leading to many Canadians whose families have lived on Campobello for generations not being able to claim to be born in Canada.
During the original debate over the 14th Amendment Senator Jacob M. Howard of Michigan—the sponsor of the Amendment, though the Citizenship Clause was written by Senator Wade—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers". Others also agreed that the children of ambassadors and foreign ministers were to be excluded. Concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, agreed, asserting that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion.
Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Senator James R. Doolittle of Wisconsin asserted that all Native Americans are subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.
In 1912 in his Treatise on the Laws Governing the Exclusion and Expulsion of Aliens in the United States, Clement Lincoln Bouvé argued that based on the 14th Amendment, Wong Kim Ark, and other case law, "...the child born of alien parents who, though under the immigration law they have no right to do so and are subject at any time to deportation thereunder, are nevertheless residing in the United States and owe temporary allegiance thereto, is necessarily born in allegiance to, and, therefore, is a citizen of this country."
Edward Erler in 2007 argued that since the Wong Kim Ark case dealt with someone whose parents were in the United States legally, there is no valid basis under the 14th Amendment for the practice of granting citizenship to U.S.-born children of illegal immigrants: "Even if the logic is that Wong Kim Ark became a citizen by birth with the permission of the United States when it admitted his parents to the country, no such permission has been given to those who enter illegally." Akhil Amar responded to Erler, "I'm not sure that his Pandora's box can be limited to children of illegal aliens. It is a thin edge of a very big and dangerous wedge that I think runs squarely into Wong Kim Ark." Similarly, Angelo Ancheta criticized the "consent-based theory of citizenship", saying that "The Fourteenth Amendment was designed to ensure citizenship for 'all persons' born in the United States, particularly in response to ambiguities in legal status that attached to being the descendants of an outsider class, namely slaves."
Opposition to birthright citizenship
In the late 1990s opposition arose over the longstanding practice of granting automatic citizenship on a jus soli basis. Fears grew in some circles that the existing law encouraged parents-to-be to come to the United States to have children (sometimes called birth tourism) in order to improve the parents' chances of attaining legal residency themselves. Some media correspondents and public leaders, including former 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.
A Pew Hispanic Center analysis of Census Bureau data determined that about 8 percent of children born in the United States in 2008—about 340,000—were offspring of "unauthorized immigrants". In total, about four million American-born children of unauthorized immigrant parents resided in this country in 2009, along with about 1.1 million foreign-born children of unauthorized immigrant parents.
The Center for Immigration Studies—a think tank which favors stricter controls on immigration—claims that between 300,000 and 400,000 children are born each year to illegal immigrants in the U.S.
Bills have been introduced from time to time in Congress which have sought to declare American-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 was an American citizen or a lawful permanent resident.
In 1993, Sen. Harry Reid (D-Nev.) introduced legislation that would limit birthright citizenship to the children of U.S. citizens and legally resident aliens, and similar bills have been introduced by other legislators in every Congress since. For example, U.S. Representative Nathan Deal, a Republican from the State of Georgia, introduced the "Citizenship Reform Act of 2005" (H.R. 698) in the 109th Congress, the "Birthright Citizenship Act of 2007" (H.R. 1940) in the 110th Congress, and the "Birthright Citizenship Act of 2009" (H.R. 1868) in the 111th Congress. However, neither these nor any similar bill has ever been passed 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. Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.
President Donald Trump said on October 30, 2018, that he intends to remove, by means of an executive order, the right of citizenship from people born in the U.S. to foreign nationals. In August 2019, USA Today reported that the new policy will make U.S. service members and government employees whose child is not automatically a United States citizen go through a different process to apply for their child's citizenship and that, according to estimates by the United States Citizenship and Immigration Services (USCIS), this will impact approximately 20 to 25 people annually. No such executive order had materialized by the time President Trump left office in 2021.
Many farmworkers do not have citizenship, but do have children who qualify by jus soli.
- ^ 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever.") (emphasis added).
- ^ Smith, Rogers M. (2009). "Birthright Citizenship and the Fourteenth Amendment in 1868 and 2008". University of Pennsylvania Journal of Constitutional Law. 11 (5): 1329–1336.
- ^ 8 U.S.C. § 1401 ("Nationals and citizens of United States at birth").
- ^ See 8 U.S.C. § 1101(a)(36) (defining "State") and 8 U.S.C. § 1101(a)(38) (defining "United States").
- ^ Weiner 1998, p. 238.
- ^ Max Ehrenfreund (August 17, 2015). "Understanding Trump's plan to end citizenship for undocumented immigrants' kids". Washington Post.
- ^ a b Wall Street Journal: "Birthright Citizenship, by the Numbers" August 20, 2015
- ^ "Number of babies born to unauthorized immigrants in U.S. continues to decline". Pew Research Center. Retrieved October 30, 2018.
- ^ US issues new rules restricting travel by pregnant foreigners, fearing the use of 'birth tourism'.
- ^ a b Meese 2005, p. 35
- ^ "U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs 1120 ACQUISITION OF U.S. NATIONALITY IN U.S. TERRITORIES AND POSSESSIONS". U.S. Department of State. Archived from the original (PDF) on December 22, 2015. Retrieved December 13, 2015. 7 FAM 1121.2-1 Definition of Terms
- ^ "INA: Act 302 – Persons Born in Puerto Rico". U.S. Citizenship and Immigration Services. Retrieved October 19, 2012.
- ^ Tuaua v. United States, 788 F.3d 300, 301-02 (D.C. Cir. 2015) ("The judgment of the district court is affirmed; the Citizenship Clause does not extend birthright citizenship to those born in American Samoa.").
- ^ Fitisemanu v. United States, No. 20-4017, (10th Cir. 2021) ("Such consideration properly falls under the purview of Congress, a point on which we fully agree with the concurrence. These circumstances advise against the extension of birthright citizenship to American Samoa. We reverse.").
- ^ Pampuro, Amanda (June 16, 2021). "American Samoans Are Not Born Into US Citizenship". Courthouse News Service. Retrieved September 13, 2021.
- ^ 8 FAM 302.1 Historical Background to Acquisition by Birth in U.S. Territories and Possessions
- ^ "8 Fam 301.1 (U) Acquisition by Birth in the United States". US Department of State. June 27, 2018.
- ^ "8 Fam 301.1 (U) Acquisition by Birth in the United States". US Department of State. June 27, 2018.
- ^ "8 Fam 301.1 (U) Acquisition by Birth in the United States". US Department of State. June 27, 2018.
- ^ 10 Stat. 604
- ^ 48 Stat. 797
- ^ Henry J. Chang: U.S. Citizenship Acquired by Birth Abroad
- ^ 8 U.S.C. § 1401
- ^ Immigration and Nationality Act § 301(g); 8 USC § 1401(g). For children born prior to the enactment of Public Law 99-653 on November 14, 1986, the citizen parent's U.S. presence requirement is ten years, of which at least five years had to have been after the parent's fourteenth birthday.
- ^ a b Findlaw.com: Nguyen v. INS, 533 U.S. 53 (2001)
- ^ a b Nguyen v. INS, 533 U.S. 53 (2001) Cornell University Law School.
- ^ 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 Archived January 22, 2010, at the Wayback Machine.
- ^ a b US v. Ahumada-Aguilar, 189 F.3d 1121 (9th Cir. 1999)
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Walter Dellinger, Assistant Attorney General (December 13, 1995), "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, archived from the original on July 25, 2009, retrieved January 4, 2007,
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..
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- ^ Schuck 2006, p. 96
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- ^ Robert Calvin was born in Scotland around 1606. He inherited estates in England, but his rights thereto were challenged on the grounds that, as a Scot, he could not legally own English land.
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- ^ Inglis v. Trustees of Sailor's Snug Harbor 28 U.S. 99, 155 (1830).
- ^ See Inglis, 28 U.S. at 155.
- ^ William Rawle, A View of the Constitution of the United States of America, 2d Edition, 1829, Ch. IX.
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- ^ Streichler 2005, p. 123
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- ^ Dred Scott v. Sandford, 60 U.S. 393, 531, J. McLean, dissenting.
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- ^ United States Congress (1933). American Citizenship Rights of Women: Hearing Before a Subcommittee of the Committee on Immigration, United States Senate, Seventy-second Congress, Second Session, on S. 992, a Bill Relating to the Residence Requirements for Naturalization Purposes of Alien Wives of Members of the Diplomatic and Consular Service of the United States and Wives of Other Employees of the United States Government Stationed Abroad; S. 2760, a Bill Relative to the Admission Under the Immigration Laws of Wives of American Citizens; S. 3968, a Bill to Provide for the Citizenship of a Child Born of an American Mother and an Alien Father; and S. 4169, a Bill Relative to the Citizenship of Minor Children, and for Other Purposes. March 2, 1933. Washington, D. C.: U.S. Government Printing Office. pp. 18–19.
- ^ Cott, Nancy F. (2009). "Justice for All? Marriage and Deprivation of Citizenship in the United States". In Sarat, Austin; Kearns, Thomas R. (eds.). Justice and Injustice in Law and Legal Theory. Ann Arbor, Michigan: University of Michigan Press. pp. 77–98. ISBN 978-0-472-02368-4.
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Repeal...Sections 1, 2, 3, and 4, Act of September 22, 1922 (42 Stat. 1021–1022; as amended by sections 1 and 2, Act of July 3, 1930 (46 Stat. 854); section 4, Act of March 3, 1931 (46 Stat. 1511–1512); and section 4, Act of May 24, 1934 (48 Stat. 797; U.S.C., title 8, secs. 367, 368, 368a, 369, and 369a)
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- ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893 Senator Reverdy Johnson said in the debate: "Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States ... 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."
- ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2897.
- ^ Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 572.
- ^ Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498. The debate on the Civil Rights Act contained the following exchange:
Mr. Cowan: "I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?"
Mr. Trumbull: "Undoubtedly."
Mr. Trumbull: "I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens."
Mr. Cowan: "The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument."
Mr. Trumbull: "If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European."
- ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2891–2. During the debate on the Amendment, Senator John Conness of California declared, "The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law [the Civil Rights Act]; now it is proposed to incorporate that same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that 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."
- ^ See veto message Archived December 26, 2010, at the Wayback Machine by President Andrew Johnson.
- ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2890, 2892–4, 2896.
- ^ 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." He then proceeded to expound upon what he meant by "complete jurisdiction": "Can you sue a Navajoe Indian in court? ... We make treaties with them, and therefore they are not subject to our jurisdiction ... If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? ... Would he [Sen. Doolittle] think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? ... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens."
- ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2895. Howard additionally stated the word jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now" and that the United States possessed a "full and complete jurisdiction" over the person described in the amendment.
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- ^ "Unauthorized Immigrants and Their U.S.-Born Children," Pew Hispanic Center, August 11, 2010
- ^ Daniel González and Dan Nowicki. "Birthright citizenship change would have wide effects." Arizona Republic, March 20, 2011.
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- ^ Text of Plyler v. Doe, 457 U.S. 202 (1982) is available from: Cornell Google Scholar Justia Library of Congress Oyez (oral argument audio)
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