What is Birthright Citizenship?

 Posted on October 14, 2015 in Immigration

With the increased frequency of discussion regarding immigration and citizenship questions leading up to the presidential election cycle, some issues debated for years are making their way back into the national mainframe. One of them is the question of birthright citizenship, which commonly becomes confused with other immigration statuses. It is imperative to correct the misinformation being bruited, lest potential immigrants be confused about the status to which they are or are not entitled.

What is Birthright Citizenship?

Birthright citizenship is the modern term for the Latin rule of jus soli, “law of the soil.” Jus soli is the counterpart to the rule of jus sanguinis, “law of the blood,” in that it grants citizenship in a country based on where a child is born, as opposed to where the bloodline of their parents is based. It is a common law rule, meaning that it was passed down to United States jurisprudence from its origins in English law.

In the United States, the idea was codified into law with the passage of the Fourteenth Amendment in 1868. The relevant portion of the amendment states that all those “born or naturalized in the United States, and subject to the jurisdiction thereof,” are citizens. The last clause, “subject to the jurisdiction thereof,” is the provision most often debated by scholars and legal authorities. It was clarified for many in the 1898 decision of U.S. v Wong Kim Ark, when the concept of jus soli was officially discussed by the court, but the debate continues. The crux of this matter is that as currently interpreted, this clause permits the children of undocumented immigrants born on U.S. soil to claim United States citizenship.

What Birthright Citizenship is Not

Contrary to the popular belief of many, a U.S. citizen child is not an automatic free pass to avoid deportation. At best, it is one factor among many used by Immigration and Customs Enforcement (ICE) to determine whether an undocumented person should receive prosecutorial discretion. Many undocumented parents of United States citizen children are deported each year.

Birthright citizenship, in fact, provides fairly limited benefits to the parents of a child born in the United States, at least in the short term. While a U.S. citizen child may indeed sponsor his or her parents for lawful permanent resident (LPR) or “green card” status, he or she may not do so until the age of 21. This is notwithstanding the fact that if the parents have ever been in the United States without inspection, they must leave and wait out a 10-year bar before being permitted to apply. While ultimately, the family may gain United States citizenship, they must wait a very long time to do so—hardly the immediate draw that it is often painted as.

Clarify Your Status with an Attorney

Because there is so much discussion about these issues, misinformation is easy to come by. Therefore, it is in your best interest to seek the assistance of a qualified attorney who can ensure that you and your family are following proper procedure to stay in the country. The skilled DuPage County immigration attorneys at Mevorah & Giglio Law Offices are happy to share the benefit of our experience with you. Contact our offices today to set up a free initial consultation.

Sources:

http://constitutioncenter.org/interactive-constitution/amendments/amendment-xiv

http://uscis.gov/green-card/green-card-through-family/green-card-family-member-us-citizen