Birthright citizenship in the United States

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.[1]

For laws regarding U.S. citizenship, see United States nationality law. For U.S. citizenship (birthright and naturalized), see Citizenship of the United States.

U.S. Senator from Michigan Jacob M. Howard, author of the Citizenship Clause of the Fourteenth Amendment to the United States Constitution

Birthright citizenship arises from 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.[2] 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.[3] This includes the territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands), and the U.S. Virgin Islands.[4][5] Birthright citizenship also applies to children born elsewhere in the world to US citizens (with certain exceptions), known as jus sanguinis.

Some people oppose the application of birthright citizenship to children of illegal immigrants.[6] The Pew Hispanic Center estimates that approximately 7.5% of all births in the U.S. (about 300,000 births per year) are to unauthorized immigrants.[7] The Pew Hispanic Center also estimates that there are 4.5 million children born to unauthorized immigrants 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.[7][8] 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 pejoratively called "birth tourism",[9] although Trump's properties have provided "birth tourism" packages for many years.[10]

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."[11]

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, Eskimo, 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.

U.S. territories

The Fourteenth Amendment applies to incorporated territories, so people born in incorporated territories of the U.S. are automatically U.S. citizens at birth.[12]

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."[13]

According to congressional enactment, persons born in American Samoa are American nationals but not U.S. citizens.[14] On December 12, 2019, a U.S. District court in Utah effectively ruled that people born in the territory of American Samoa should be recognized as U.S. citizens,[15][16][17] but issued a stay of the ruling on December 13, 2019 until the issue is resolved on appeal.[18][19][20]

Outlying possessions

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.[21]

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"),[22] 8 FAM 301.1–5 ("What Is Birth in U.S. Airspace?"),[23] and 8 FAM 301.1–6 ("Documenting Birth in U.S. Waters and U.S. Airspace").[24]

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.[25] In 1934, it was extended to children with citizen mothers and noncitizen fathers.[26] 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.[27]

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):[28]

  • 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"[29] in the U.S. 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.[30]
    • the U.S. citizen parent has not been "physically present" for a total period of at least five years, then a U.S. citizen grandparent must have been "physically present" for at least five years.[31]

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.
      • 8 U.S.C. § 1409 paragraph (a) provides that acknowledgment 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.[32][33] 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.[34]

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.[35] In many cases, American servicemen passing through in wartime may not have even learned they had fathered a child.[35] In 2001, the Supreme Court, by 5–4 majority in Nguyen v. INS, first established the constitutionality of this gender distinction.[32][33]

Eligibility for office of President
Part of the constitutional provision as it appeared in 1787
Main article: Natural-born-citizen clause

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 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.[36] 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.[37] Calvin's Case, 77 Eng. Rep. 377 (1608),[39] 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."[40] This same principle was accepted by the United States as being "ancient and fundamental", i.e., well-established common law, as stated by the Supreme Court 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).

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.[41]

Dred Scott v. Sandford
Dred Scott

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".[42] 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.[43]

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 ...[44]

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][45] 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.[46] [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."[47] ("Indians not taxed" referred to tribal members living on reservations.)

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."[11]

Expatriation Act of 1868
Main article: Expatriation Act of 1868

This act, a companion piece to the Fourteenth Amendment, was approved on July 27, 1868.[48]

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".[49]

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,[50] basing that argument on the debate that surrounded the passage of this act.[51][52] 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."[53]

1873 opinion of the Attorney General

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.[54]

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.[55]

Indian Citizenship Act of 1924

The Indian Citizenship Act of 1924[56] 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).

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) 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.[57]

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. 36 (1873)—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".[58]

Elk v. Wilkins

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.[59]

Thus, Native Americans who voluntarily quit their tribes would not automatically become U.S. citizens.[60] 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
Wong Kim Ark, in a photograph taken from a 1904 U.S. immigration document

In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), 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 person 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."

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.[61]

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.[62]

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.[63]

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.[64]

Political controversies

Original meaning

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".[65] Others also agreed that the children of ambassadors and foreign ministers were to be excluded.[66][67] 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.[68][69][70]

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,[71] 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.[72][73]

Edward Erler 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."[74] 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."[75] 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."[76]

Opposition to birthright citizenship

In the late 1990s opposition arose over the longstanding practice of granting automatic citizenship on a jus soli basis.[77] 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.[78][79] Some media correspondents[80][81] and public leaders, including former congressman Virgil Goode, have controversially dubbed this the "anchor baby" situation,[82][83] and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.[84]

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.[85]

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.[86][87]

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.[87] 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,[88] the "Birthright Citizenship Act of 2007" (H.R. 1940)[89] in the 110th Congress, and the "Birthright Citizenship Act of 2009" (H.R. 1868)[90] 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.[91] Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment;[92] 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.[93][94] 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.[95]

See also

References
  1. 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).
  2. 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.
  3. 8 U.S.C. § 1401 ("Nationals and citizens of United States at birth").
  4. See 8 U.S.C. § 1101(a)(36) (defining "State") and 8 U.S.C. § 1101(a)(38) (defining "United States").
  5. Weiner 1998, p. 238.
  6. Max Ehrenfreund (August 17, 2015). "Understanding Trump's plan to end citizenship for undocumented immigrants' kids". Washington Post.
  7. Wall Street Journal: "Birthright Citizenship, by the Numbers" August 20, 2015
  8. "Number of babies born to unauthorized immigrants in U.S. continues to decline". Pew Research Center. Retrieved October 30, 2018.
  9. US issues new rules restricting travel by pregnant foreigners, fearing the use of 'birth tourism'
  11. Meese 2005, p. 35
  12. "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. Cite journal requires |journal= (help) 7 FAM 1121.2-1 Definition of Terms
  13. "INA: Act 302 – Persons Born in Puerto Rico". U.S. Citizenship and Immigration Services. Retrieved October 19, 2012.
  14. "Fitisemanu v. United States". Immigration Reform Law Institute. June 29, 2018.
  15. JOHN FITISEMANU, et al v. UNITED STATES OF AMERICA, et. al. (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH December 12, 2019). Text
  16. Michael Levenson (December 13, 2019). "American Samoans Should Be Granted U.S. Citizenship, Judge Rules". New York Times. Retrieved January 25, 2020.
  17. Kowalski, Daniel M. (December 12, 2019). "American Samoans are US Citizens - Fitisemanu v. US". LexisNexis. Retrieved January 25, 2020.
  18. American Samoans Ruled to Be US Citizens, Decision on Hold
  19. American Samoans' Citizenship Status Still In Limbo After Judge Issues Stay
  20. Order Staying Court's Ruling
  21. 8 FAM 302.1 Historical Background to Acquisition by Birth in U.S. Territories and Possessions
  22. "8 Fam 301.1 (U) Acquisition by Birth in the United States". US Department of State. June 27, 2018.
  23. "8 Fam 301.1 (U) Acquisition by Birth in the United States". US Department of State. June 27, 2018.
  24. "8 Fam 301.1 (U) Acquisition by Birth in the United States". US Department of State. June 27, 2018.
  25. 10 Stat. 604
  26. 48 Stat. 797
  27. Henry J. Chang: U.S. Citizenship Acquired by Birth Abroad
  28. 8 U.S.C. § 1401
  29. including, in some circumstances, time spent overseas when a parent who is a U.S. government employee is posted overseas
  30. 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.
  31. Form N-600/N-643, Supplement A, Application for Acquisition of Citizenship Through a Grandparent
  32. Findlaw.com: Nguyen v. INS, 533 U.S. 53 (2001)
  33. Nguyen v. INS, 533 U.S. 53 (2001) Cornell University Law School.
  34. 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.
  35. US v. Ahumada-Aguilar, 189 F.3d 1121 (9th Cir. 1999)
  36. 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..
  37. Schuck 2006, p. 96
  38. Price, Polly J. (1997). "Natural Law and Birthright Citizenship in Calvin's Case (1608)". Yale Journal of Law and the Humanities. 9.
  39. 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.[38]
  40. Justice, Elaine (October 7, 1996), "Price questions whether birthright citizenship will continue", Emory Report, retrieved January 4, 2007.
  41. The American Law Register. D.B. Canfield & Co. 1864. p. 599.
  42. Streichler 2005, p. 123
  43. Streichler 2005, p. 126
  44. Howard, Benjamin C. (1857). A Report of the Decision of the Supreme Court of the United States and the Opinions of the Judges Thereof, in the Case of Dred Scott Versus John F. A. Sandford. December Term, 1856. New York: D. Appleton & Company. pp. 576–582..
  45. Bates, Edward (1862). Opinion of Attorney General Bates on Citizenship. Washington, D.C.: Government Printing Office. pp. 26–27. OCLC 252308921.
  46. Bates, Edward (1862). Opinion of Attorney General Bates on Citizenship. Washington, D.C.: Government Printing Office. p. 12. OCLC 252308921.
  47. "The 1866 Civil Rights Act". 14 Stat. 27–30. April 9, 1866. Retrieved January 7, 2016.
  48. Expatriation Act, 14th-amendment.com, quoting Sanger 1869, pp. 223–224.
  49. Snow (1893), Cases and Opinions on International Law, p. 218.
  50. Transcript Archived March 10, 2009, at the Wayback Machine, Testimony of Edward J. Erler before the House Subcommittee on Immigration and Claims, June 25, 1997.
  51. Erler 2003, pp. 191–192, Erler, West & Marini 2007, pp. 50–51
  52. Thomas 2007, pp. 193–194.
  53. https://www.publicsquare.net/2011/04/birthright-citizenship-fourteenth-amendment/
  54. 14 U.S. Attorney General Opinions 300.
  55. Opinions of the Executive Departments on Expatriation, Naturalization and Allegiance (1873) 17, 18; U.S. Foreign Relations, 1873–74, pp. 1191, 1192.
  56. 43 United States Statutes at Large 253.
  57. Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830), U.S. Supreme Court Center, justia.com.
  58. 83 U.S. at 73.
  59. 112 U.S. at 102.
  60. Urofsky, Melvin I.; Finkelman, Paul (2002). A March of Liberty: A Constitutional History of the United States. 1 (2nd ed.). New York, NY: Oxford University Press. ISBN 978-0-19-512635-8.
  61. "Some Canadian mothers forced to give birth in U.S." KOMO TV News. October 3, 2007. Retrieved July 22, 2016.
  62. Citizenship Act PART I: THE RIGHT TO CITIZENSHIP, Federation of Law Societies of Canada, retrieved February 10, 2009
  63. Citizenship and Immigration Canada True or False? Children born outside of Canada, Department of Citizenship and Immigration Canada, archived from the original on March 2, 2009, retrieved October 26, 2010
  64. "Challenges for Campobello Island: A crossing to bear". July 2012.
  65. 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."
  66. Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2897.
  67. Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 572.
  68. 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."
  69. 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."
  70. See veto message Archived December 26, 2010, at the Wayback Machine by President Andrew Johnson.
  71. Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2890, 2892–4, 2896.
  72. 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."
  73. 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.
  74. Erler et al., The Founders on Citizenship and Immigration: Principles and Challenges in America, p. 67.
  75. Rosen, Jeffrey, host. "Does the Constitution Require Birthright Citizenship?" We the People, National Constitution Center, November 8, 2018.
  76. Angelo N. Ancheta, Race, Rights, and the Asian American Experience, p. 103.
  77. Lee, Margaret (May 12, 2006), U.S. Citizenship of Persons Born in the United States to Alien Parents (PDF), Congressional Research Service Report for Congress, retrieved August 16, 2008 (brief record)
    ^ Lee, Margaret (September 13, 2005), U.S. Citizenship of Persons Born in the United States to Alien Parents (PDF), ilw.com, retrieved May 30, 2010 (full text)
  78. "... 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 (August 7, 1996), "Citizenship Proposal Faces Obstacle in the Constitution", New York Times
  79. "'Border baby' boom strains S. Texas", Houston Chronicle, September 24, 2006, retrieved August 2, 2008
  80. Simmons, Kathryn. "Anchor babies tie illegal immigrants to U.S." NBC2 News. November 25, 2005.
  81. Erbe, Bonnie. "Anchor Babies hurt working class." Seattle Times. May 18, 2005.
  82. Goode-Perriello Exchange, Sorensen Institute Candidates' Forum, September 3, 2008, retrieved October 3, 2008
  83. "Rep. Gayle Harrell says immigration is 'No. 1 issue'", Fort-Pierce Tribune, June 30, 2008, retrieved July 14, 2008
  84. "GOP mulls ending birthright citizenship," Washington Times, November 3, 2005
  85. "Unauthorized Immigrants and Their U.S.-Born Children," Pew Hispanic Center, August 11, 2010
  86. Daniel González and Dan Nowicki. "Birthright citizenship change would have wide effects." Arizona Republic, March 20, 2011.
  87. Jon Feere, "Birthright Citizenship in the United States: A Global Comparison." Center for Immigration Studies.
  88. Citizenship Reform Act of 2005.
  89. Birthright Citizenship Act of 2007.
  90. Birthright Citizenship Act of 2009.
  91. U.S. Representative Anthony Beilenson (D-CA). "Case for Correction By Constitutional Amendment." The Social Contract. Volume 7, Number 1 (Fall 1996).
  92. S. J. Res. 6, thomas.loc.gov, January 16, 2009, retrieved February 27, 2009
  93. Da Silva, Chantal (October 30, 2018). "Trump Says He Plans to Sign Executive Order to Terminate Birthright Citizenship". CNN. Archived from the original on October 30, 2018. Includes video.
  94. Schroeder, Robert (October 30, 2018). "Trump Today: President says he's preparing order to end birthright citizenship". Market Watch. Retrieved October 30, 2018.
  95. "What we know about the new citizenship policy for some children of US military, government workers". USA Today. August 30, 2019.

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