Birthright generation

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Birthright generation is a term used by immigrant advocates to identify US-born citizens, who are protected by the Fourteenth Amendment of the United States Constitution. It grants American citizenship to all babies born on American soil even if the child is born to one or both undocumented parents. Birthright citizenship may be also conferred either by jus soli or jus sanguinis . Under American law, any person born within the US, including the territories of Puerto Rico, Guam, the US Virgin Islands, and the Northern Mariana Islands and subject to its jurisdiction is automatically granted US citizenship.

Contents

An alternative term is anchor baby, a term used by immigration reductionists to identify a child born in the US to undocumented immigrants. It is generally used as a reference to the supposed role of the child, who as a US citizen through the legal principle of jus soli, may facilitate immigration for relatives through family reunification. Family reunification, or family-based immigration, in the US is a lengthy process and is limited to categories prescribed by provisions of the Immigration and Nationality Act of 1965. The misconception has led those who oppose citizenship rights for children of immigrants that newborns would facilitate residency and citizenship rights for their parents. [1] However, an American child cannot claim a parent until the age of 21. [2]

Statistics

An estimated 340,000 of the 4.3 million newborns in the United States in 2008 were the offspring of undocumented immigrants. [3]

Undocumented immigrants make up roughly 4% of the adult population in the United States. However, because they are young and have high birthrates, their children make up a larger share of both the newborn population (8%) and the child population (7% of those younger than age 18). [3]

Evolution of the citizenship clause and court rulings

  1. The Reconstruction Congress constitutionalized birthright citizenship to assure that no Congress would later retreat from the Civil Rights Act of 1866 to afford citizenship to freedmen. [4]
  2. In the Slaughter-House Cases, the Court explained that the jurisdiction language of the Citizenship Clause "was intended to exclude from its operation children of ministers, consuls, and citizens or subject of foreign states born within the United States. Mainly to prevent conflict involving dual nationality. [4]

The United States v Wong Kim Ark case (1898) shed light on the validity of the Citizenship Clause. Wong Kim Ark, born in California to Chinese merchants living in the US, left to visit China and then sought to re-enter the United States based on his status as a citizen from birth. The government refused entry, claiming that under Chinese law Wong Kim Ark owed allegiance to China and thus lacked the complete allegiance to the US required by the Citizenship Clause. [4]

The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted in light of English common law tradition that had excluded from citizenship at birth only two classes of people: (1) children born to foreign diplomats and (2) children born to enemy forces engaged in hostile occupation of the country's territory. The majority held that the "subject to the jurisdiction" phrase in the 14th Amendment specifically encompassed these conditions. [5] In Plyler v. Doe (1982), Supreme Court reaffirmed that the phrases in 14th Amendment: subject to the jurisdiction thereof and within its jurisdiction were equivalent and that both referred to physical presence. The Supreme Court stated in a footnote of the 1982 Plyler v. Doe case that "[e]very 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", 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." [6] [7] [8]

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." [7] [8]

2010 controversy

Proponents[ who? ] of reconsideration of the Fourteenth Amendment have expressed concern in the validity of citizenship of members of the birthright generation. [9] In an interview with The Hill Senator Mitch McConnell noted: “I think we ought to take a look at it — hold hearings, listen to the experts on it. I haven't made a final decision about it, but that's something that we clearly need to look at. Regardless of how you feel about the various aspects of immigration reform, I don't think anybody thinks that's something they're comfortable with." [9] Senators Harry Reid and Lindsey Graham have been quoted supporting amendments to the citizenship clause for children born to undocumented immigrants. Harry Reid argues "We should change our Constitution and say if you come here illegally and you have a child, that child's automatically not a citizen." [10]

Birth tourism

Another term referencing the opposition of the citizenship clause has been birth tourism. Birth tourism is defined as granting birthright citizenship to a newborn child by giving birth to him or her in a different country. The United States have become one of the most popular countries in which "birth tourism" takes place. Today not only are migrants traveling to America to born their children here, there are local businesses all over California that support these mothers. A term for this business may be called, "maternity homes," in which doctors are paid in thousands of dollars or more to birth these children on American soil and are responsible to take care of these mothers during their stay. [11]

US surveys

A nationwide survey by the Pew Research Center for the People & the Press in June 2010 found that, by 56% to 41%, the public opposes changing this provision of the Constitution.

Related Research Articles

<span class="mw-page-title-main">Fourteenth Amendment to the United States Constitution</span> 1868 amendment addressing citizenship rights and civil and political liberties

The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Usually considered one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to formerly enslaved Americans following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, Obergefell v. Hodges (2015) regarding same-sex marriage, and Students for Fair Admissions v. Harvard (2023) regarding race-based college admissions. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.

<i>Jus soli</i> Birthright of anyone born in the territory of a state to nationality or citizenship

Jus soli, meaning 'right of the soil', is the right of anyone born in the territory of a state to nationality or citizenship, also commonly referred to as birthright citizenship in some Anglophone countries, is a rule defining a person's nationality based on their birth in the territory of the country. Jus soli was part of the English common law, in contrast to jus sanguinis, which derives from the Roman law that influenced the civil-law systems of mainland Europe.

Jus sanguinis is a principle of nationality law by which nationality is determined or acquired by the nationality of one or both parents. Children at birth may be nationals of a particular state if either or both of their parents have nationality of that state. It may also apply to national identities of ethnic, cultural, or other origins. Citizenship can also apply to children whose parents belong to a diaspora and were not themselves citizens of the state conferring citizenship. This principle contrasts with jus soli, which is solely based on the place of birth.

United States v. Wong Kim Ark, 169 U.S. 649 (1898), was a landmark decision of the U.S. Supreme Court which held that "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 domicile 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", automatically became a U.S. citizen at birth. This decision established an important precedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.

Anchor baby is a term used to refer to a child born to non-citizen parents in a country that has birthright citizenship which will therefore help the parents and other family members gain legal residency. In the U.S., the term is generally used as a derogatory reference to the supposed role of the child, who automatically qualifies as an American citizen under jus soli and the rights guaranteed in the Fourteenth Amendment to the U.S. Constitution. The term is also often used in the context of the debate over illegal immigration to the United States. A similar term, "passport baby", has been used in Canada for children born through so-called "maternity" or "birth tourism".

<span class="mw-page-title-main">United States nationality law</span> History and regulations of American citizenship

United States nationality law details the conditions in which a person holds United States nationality. In the United States, nationality is typically obtained through provisions in the U.S. Constitution, various laws, and international agreements. Citizenship is established as a right under the Constitution, not as a privilege, for those born in the United States under its jurisdiction and those who have been "naturalized". While domestic documents often use the words citizenship and nationality interchangeably, nationality is a broader term that refers to national identity and formal membership in a nation, while citizen is reserved to nationals who are have the recognized status of citizenship.

Yick Wo v. Hopkins, 118 U.S. 356 (1886), was a landmark decision of the United States Supreme Court, held that a prima facie race-neutral law administered in a prejudicial manner infringed upon the right to equal protection guaranteed by the Fourteenth Amendment to the U.S. Constitution.

<i>Plyler v. Doe</i> 1982 United States Supreme Court case

Plyler v. Doe, 457 U.S. 202 (1982), was a landmark decision in which the Supreme Court of the United States struck down both a state statute denying funding for education of undocumented immigrant children in the United States and an independent school district's attempt to charge an annual $1,000 tuition fee for each student to compensate for lost state funding. The Court found that any state restriction imposed on the rights afforded to children based on their immigration status must be examined under a rational basis standard to determine whether it furthers a substantial government interest.

<span class="mw-page-title-main">Naturalization Act of 1790</span> United States federal law

The Naturalization Act of 1790 was a law of the United States Congress that set the first uniform rules for the granting of United States citizenship by naturalization. The law limited naturalization to "free White person(s) ... of good character", thus excluding Native Americans, indentured servants, enslaved people, free Africans, Pacific Islanders, and non-White Asians. This eliminated ambiguity on how to treat newcomers, given that free black people had been allowed citizenship at the state level in many states. In reading the Naturalization Act, the courts also associated whiteness with Christianity and thus excluded Muslim immigrants from citizenship until the decision Ex Parte Mohriez recognized citizenship for a Saudi Muslim man in 1944.

<span class="mw-page-title-main">Citizenship Reform Act of 2005</span> Amendment bill

The proposed Citizenship Reform Act of 2005 was a U.S. congressional bill introduced in the 109th United States Congress by Re. Nathan Deal (R-GA). The legislation aimed to deny birthright citizenship to individuals born in the United States whose parents were not citizens or permanent residents.

Status as a natural-born citizen of the United States is one of the eligibility requirements established in the United States Constitution for holding the office of president or vice president. This requirement was intended to protect the nation from foreign influence.

<span class="mw-page-title-main">Birth tourism</span> Travel to give birth in another country

Birth tourism is the practice of traveling to another country or city for the purpose of giving birth in that country. The main reason for birth tourism is to obtain citizenship for the child in a country with birthright citizenship. Such a child is sometimes called an "anchor baby" if their citizenship is intended to help their parents obtain permanent residency in the country. Other reasons for birth tourism include access to public schooling, healthcare, sponsorship for the parents in the future, hedge against corruption and political instability in the children’s home country. Popular destinations include the United States and Canada. Another target for birth tourism is Hong Kong, where some mainland Chinese citizens travel to give birth to gain right of abode for their children.

United States citizenship can be acquired by birthright in two situations: by virtue of the person's birth within United States territory or because one or both of their parents was a U.S. citizen at the time of the person's birth. Birthright citizenship contrasts with citizenship acquired in other ways, for example by naturalization.

The Citizenship Clause is the first sentence of the Fourteenth Amendment to the United States Constitution, which was adopted on 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.

<span class="mw-page-title-main">Citizenship of the United States</span> Legal status in the U.S.

Citizenship of the United States is a legal status that entails Americans with specific rights, duties, protections, and benefits in the United States. It serves as a foundation of fundamental rights derived from and protected by the Constitution and laws of the United States, such as freedom of expression, due process, the rights to vote, live and work in the United States, and to receive federal assistance.

<span class="mw-page-title-main">Nationality Act of 1940</span>

The Nationality Act of 1940 revised numerous provisions of law relating to American citizenship and naturalization. It was enacted by the 76th Congress of the United States and signed into law on October 14, 1940, a year after World War II had begun in Europe, but before the U.S. entered the war.

Birthright is the concept of things being due to a person upon or by fact of their birth, or due to the order of their birth. These may include rights of citizenship based on the place where the person was born or the citizenship of their parents, and inheritance rights to property owned by parents or others.

Federal policy oversees and regulates immigration to the United States and citizenship of the United States. The United States Congress has authority over immigration policy in the United States, and it delegates enforcement to the Department of Homeland Security. Historically, the United States went through a period of loose immigration policy in the early-19th century followed by a period of strict immigration policy in the late-19th and early-20th centuries. Policy areas related to the immigration process include visa policy, asylum policy, and naturalization policy. Policy areas related to illegal immigration include deferral policy and removal policy.

Truax v Raich239 US 33 (1915) was a U.S. Supreme Court case concerning U.S. labor laws, the right to work, immigration law, and the Fourteenth Amendment to the United States Constitution.

References

  1. ↑ "Green Card for a Family Member of a U.S. Citizen". USCIS. Retrieved 2017-04-04.
  2. ↑ Dave Bennion (July 28, 2009). "10-Year Bars Split Up Families."
  3. 1 2 Pew Research Center. "Unauthorized immigrants babies born United States citizens"
  4. 1 2 3 John W. Guendelsberger. “Access to Citizenship for Children Born within the State to Foreign Parents”. The American Journal of Comparative Law Vol. 40, No. 2 (Spring, 1992), pp. 379-429
  5. ↑ Zorn, Eric. Chicago Tribune. Sinking Anchor Babies.
  6. ↑ Plyler V Doe, Case Hearing. Accessed November 4, 2010.
  7. 1 2 Ho, James Chiun-Yue (2006). "Defining "American": Birthright Citizenship and the Original Understanding of the 14th Amendment" (PDF). The Green Bag . 9 (4): 376. ISSN   1095-5216. Archived from the original (PDF) on May 20, 2013. Retrieved March 27, 2012.
  8. 1 2 Paul, Deanna (October 30, 2018). "Trump wants to end birthright citizenship. A judge he appointed says he can't". Washington Post. Archived from the original on November 16, 2018. Retrieved December 20, 2018.
  9. 1 2 Wolverton, Joe II. "New American Senators Call to Hold Hearings on the 14th Amendment". Accessed November 4, 2010.
  10. ↑ http://www.frumforum.com/graham-seeks-to-end-birthright-citizenship Archived 2011-07-17 at the Wayback Machine accessed 29 November 2010
  11. ↑ "Welcome to Maternity Hotel California". Rolling Stone. Retrieved 2017-04-04.
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