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  • Article: Why Birthright Citizenship Is Most Wonderful For America. By Cyrus D. Mehta

    Why Birthright Citizenship Is Most Wonderful For America

    by


    Donald Trump advocating that the United States should end birthright citizenship in his immigration reform plan is nothing new. Politicians have frequently brought up the so called dangers of birthright citizenship to pander to their base. Recently in 2011, Steve King (R-IA), one of the most anti-immigrant members of Congress, proposed the Birthright Citizenship Act of 2011, which did not go anywhere because of its absurdity.  Future attempts too will similarly fail since birthright citizenship is too entrenched in the fabric of this nation. It is also good for America.

    The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”

    Lost in the heated political rhetoric of Trump and other Republican presidential contenders who are parroting him is that it is next to impossible to amend the hallowed Fourteenth Amendment, which was enacted to ensure birthright citizenship to African Americans after the Civil War, and following the infamous Dred Scott decision that held that African Americans could not claim American citizenship.   In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court  extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

    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 owning 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, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States. 

    Although in Elk v. Wilkins, 112 U.S. 94 (1984), those born within Native American tribes were not born “subject to the jurisdiction” of this country because they owed allegiance to their tribal nations rather than the United States,  this preclusion was  eventually eliminated by the Indian Citizenship Act of 1924. 

    Even the Board of Immigration Appeals in Matter of Cantu, Interim Decision #2748, broadly held that one who was born on a territory in 1935, the Horton Tract, where the United States had impliedly relinquished control, but had not yet ceded it to Mexico until 1972, was born “subject to the jurisdiction” of the United States and thus a US citizen. 

    One can also pick a leaf from the State Department’s book on birthright citizenship. Contrary to the common notion -that parents come to the US to give birth to children so that they may become US citizens - some non-US citizen parents do not desire that their minor children remain US citizens, notwithstanding their birth in the US. Their main motivation is that if they choose not to live in the US permanently, they would rather that the child enjoys the citizenship of their nationality so that he does not suffer any potential impediments later on in that country, such as the inability to vote, attend educational institutions or stand for elected office. This may not be possible if the child is born in the US, since the State Department’s regulation provides that “[i[t is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid passport.” See 22 CFR §53.1.

    The relevant extract from the State Department’s 7 FAM 1292 is worth noting to show how difficult it is for a child born in the US not to be considered an American citizen:

    a. Occasionally, CA/OCS or a post abroad will receive an inquiry from the parent of a child born in the United States who acquired US citizenship at birth protesting the “involuntary” acquisition of US citizenship.

    b.Jus soli (the law of the soil) is the rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes. The 14th Amendment states, in part, that: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    c. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court examined at length the theories and legal precedents on which U.S. citizenship laws are based and, in particular, the types of persons who are subject to U.S. jurisdiction.

    d. Children born in the United States to diplomats accredited to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it [citation omitted].

    e. Parents or guardians cannot renounce or relinquish the U.S. citizenship of a child who acquired U.S. citizenship at birth.

    Since a Constitutional amendment requires a favorable vote of two thirds of each house of Congress and ratification by three quarters of the states or the holding of conventions in three quarters of the states, efforts will be made, like H.R. 140 did, to tinker with section 301 of the Immigration and Nationality Act, which replicates the 14th amendment. H.R. 140 strove to narrowly limit birthright citizenship to a person born in the US to parents who were either citizens of the United States or lawfully admitted for permanent residence.

    Assuming that such a bill got enacted into law, it would deprive the child of a nonimmigrant parent from automatically becoming a US citizen who is lawfully in the US in H-1B status, and approved for permanent residence but for the fact that she is stuck in the employment-based preference backlogs for many years. What would be the status of such a child who was not born of parents of the pedigree prescribed in such a law? Would the child be rendered deportable the minute it is born by virtue of being an alien present in the US without being admitted or paroled under INA section 212(a)(6)(A)(i)? Moreover, would such a law also have retroactive application? It is likely to have retroactive effect since a Constitutional provision ought to only be interpreted in one way for all times. If a new statute interprets the Fourteenth Amendment’s “subject to the jurisdiction thereof” to not include children of parents who were undocumented, or who were not citizens or permanent residents, and this interpretation is upheld by a court, then children who were born as US citizens will no longer be considered citizens. How far would one have to go then to strip people of citizenship? Parents, grandparents and even great grandparents will no longer be considered citizens, in addition to the child. Millions upon millions of Americans ensconced in comfortable suburbia will overnight be deemed to be non-citizens, perhaps even illegal aliens and deportable. The repealing of birthright would certainly have unintended consequences of a nightmarish quality, and it is quite likely that some of the repeal’s most strident champions might be declared as “illegal aliens” and unfit to run for office!

    The only historic exceptions to those subject to the jurisdiction of the US are diplomats and enemies during the hostile occupation of a part of US territory.  A diplomat, in accordance with Wong Kim Ark, is not subject to the jurisdiction of the US as a diplomat enjoys immunity from US law, but a child of such a diplomat born in the US is at least deemed to be a permanent resident. See Matter of Huang, Interim Decision #1472 (BIA May 27, 1965). Congress even passed legislation to ensure that children of all Native Americans are US citizens. See INA section 301(b). An undocumented immigrant is undoubtedly subject to the jurisdiction of the US. If he commits a crime, he will surely be prosecuted. He can sue and be sued in US courts, and Uncle Sam gleefully collects his taxes as well as his contributions to social security (even if he is unable to claim it later on). One cannot liken an immigrant who has entered the US without inspection with the objective of finding work to a member of a hostile force occupying a part of the US. When a hostile force occupies any part of the US, the laws of the US are no longer applicable in the occupied territory. Thus, children of an occupying enemy alien have not been considered to be born "subject to the jurisdiction" of the US as they did not derive protection from or owe any obedience or allegiance to the country. Inglis v. Sailor's Snug Harbor, 28 U.S. 99 (1830). By contrast, a terrorist who enters the US in a nonimmigrant status, such as on an F-1 student visa with an ulterior motive to commit an act of terrorism, unlike a member of a hostile occupying force, is subject to the jurisdiction of the US as she can be convicted or treated as an enemy noncombatant, and if she gives birth to child here, the child ought to be a US citizen under the Fourteenth Amendment.

    It has also become fashionable for politicians to refer to such children born in the US as “anchor babies,” on the assumption that the US citizen children will legalize their undocumented parents. While this is theoretically possible, the parent will have to wait until the US citizen child turns 21 before the parent can be sponsored for permanent residence. If the parent came into the US without inspection, the parent will have to depart the US and proceed overseas for processing at a US consulate, and will likely have to wait for an additional 10 years. The waiting time is rather long under such a game plan: 21 years, if the parent was inspected; or 31 years, if the parent crossed the border without inspection.

    The repeal of birthright citizenship will result in absurd and disastrous results. Birthright citizenship renders all born in this country to be treated equally as Americans no matter who their parents are or where they came from, and it also prevents a permanent underclass from taking root that will continue for generations.

    Now, as a nation, we don't promise equal outcomes, but we were founded on the idea everybody should have an equal opportunity to succeed. No matter who you are, what you look like, where you come from, you can make it. That's an essential promise of America. Where you start should not determine where you end up.

    Barack Obama

    This post originally appeared on The Insightful Immigration Blog. Reprinted with permission.


    About The Author

    Cyrus D. MehtaCyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 4 Comments
    1. Retired INS's Avatar
      Retired INS -
      Very good explanation. Children of diplomats may be citizens if they are not on the highest list of diplomatic immunity. Those who qualify for legal residence must reside in the United States for several years after birth to retain lawful resident status. The 1996 law imposing a 10 year ban on prospective immigrants who have been here illegally for a year or more makes it very difficult for most Mexican parents to benefit from an anchor baby. Prior to the changes in 1976 (taking place in 1977), most Mexican immigrants qualified by being exempt a labor certification because of a U.S. born child. They could immigrate in less than 2 years after the child's birth, no waiting 21 years. Mexicans should have never lobbied to be included in the priority system.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      There is no reason to limit birthright citizenship other than to exclude the children of immigrants who belong to whichever ethnic group or groups are the most unpopular with certain politicians and the bigoted voters whom they pander to. At the time of the infamous 1857Dred Scott decision, people of African descent, both slave and free, were the main targets of hate and prejudice. Chief Justice Roger Taney, in ruling that black people could never become American citizens, expressly stated that this was because they were regarded as inferior by the white majority.

      At the time of the 1898 Wong Kim Ark decision four decades later, Chinese immigrants were a main, if not the main target of hate and discrimination, also being regarded as inferior to whites by much of the public and their elected representatives. This led directly to the Chinese exclusion laws, which paralleled Dred Scott in barring Chinese immigrants from ever becoming citizens. However, because of the 14th Amendment, the Supreme Court majority in Wong Kim Ark ruled that the US-born children of Chinese immigrants were US citizens at birth, even though their parents were barred from becoming citizens because of their race.

      The two dissenting Justices in Wong Kim Ark raised an overtly racist argument is support of their opinion that American-born Chinese children should be barred from US citizenship along with their parents. They warned that recognizing birthright citizenship would make it too easy for people of the "Mongolian" or "Malay" races to become US citizens. Donald Trump and his followers, not to mention some cowardly other Republican presidential candidates who are afraid to stand up to him, are directly in this same bigoted tradition, with only the targets - Hispanics instead of Chinese - changed.

      Jeb Bush, in fact, has not even changed tho targets from the time of the infamous Chinese exclusion laws, He is now attacking Chinese women who travel, entirely legally, to the US in order to give birth here so that their children can become US citizens. This is even as America offers green cards to thousands of well-heeled Chinese immigrants every year who have the wherewithal to invest at least half a million dollars in the EB-5 program. Jeb Bush's policy, which is also supported by some other Republican politicians, might well be called: "Bring us your money - but not your unborn babies".

      Roger Algase
      Attorney at Law
    1. Retired INS's Avatar
      Retired INS -
      Jeb Bush is correct, some Asian women are coming here for the express purpose of having a child born here. If they come on non-immigrant visas, it is legal. However, that has nothing to do with why we should keep birthright citizenship. Birthright citizenship is what made America great. The children of Dutch, French, and German immigrants gained became full British subjects at birth, and could compete freely with the children of English immigrants. The number of parents coming each year as anchor babies is probably about 15,000 compared to another 105,000 who come as parents of naturalized citizens. If there are 400,000 births to illegal aliens parents each year, as the many argue, then the problem with anchor babies is very small. You will not find statistics on anchor babies in the immigration statistical handbook. However, I supervised immigration benefits for 29 years. I did in-house counting of anchor baby immigrants. At best, anchor baby parents make up 15% of the total parents of U.S. citizen category. This also depends on location. I was in Fresno which has a high percentage of Mexican illegal aliens. Since 1996 we saw almost no anchor baby parents immigrating because of the 10 year bar for being here illegally. Unlike the Asian mothers, these parents did not go home and wait 21 years, so they don't qualify to immigrate. Some should tell Donald Trump he is wrong to blame Mexicans about anchor babies.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      With all due respect to Retired INS, Jeb Bush is not correct, because he is implying that there is something wrong or illegal about coming to the US in order to give birth in this country, especially if this is done by Chinese women. This brings back very disturbing echoes of the Chinese exclusion laws and a general anti-Asian prejudice which, in the first half of the 20th century, barred all Asian immigrants, not just Chinese, from becoming naturalized American citizens.

      It is true that the Wong Kim Ark decision relied, a least to some extent, on the fact that Wong's parents were "domiciled" in the US at the time of his birth in the US. But that decision also stated that "domicile" in the US could be temporary and short term, expiring as soon as the parents left the US (which Wong's parents later in fact did). It is not impossible that a woman who comes here only to give birth and then leaves could be "domiciled" in the US during her time in this country within the meaning of the Wong decision.

      However, even though the Wong decision is widely considered to be the basis for upholding birthright citizenship in the US, I believe that the 1982 Plyler v. Doe decision is actually a more secure basis than Wong for upholding birthright citizenship, because the Plyler decision interpreted the 14th Amendment's phrase "subject to the jurisdiction" [of the United States] more accurately and completely than the Wong decision did, as I will show in an upcoming post.

      I also respectfully disagree with Retired INS's use of the term "anchor babies" in his comment. Obviously, he does not mean it in a pejorative sense, but that is the way that this term is now generally used and understood. Because of its degrading and racist connotations, especially as used against Mexican and other Hispanic immigrants, that term is not appropriate in a serious discussion of immigration or citizenship law. Call this being politically correct if you want, but I think it is harder to find a more offensive term than "anchor babies" anywhere, and it is certainly intended to be offensive by the Donald Trumps and other anti-immigrant bigots who are rampant throughout this country and appear to be taking over the Republican party's immigration agenda, drowning out the voices of reason and tolerance which can still be found within the GOP.

      Roger Algase
      Attorney at Law
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