The Future of Birthright Citizenship

 Posted on December 22, 2016 in Immigration

The United States has held that if a person is born within the jurisdiction of the country (on its soil, or on its bases or possessions abroad), then he or she has citizenship as a result. This is known as birthright citizenship, and for many years it was considered standard practice, without controversy. However, given the policy positions articulated by Donald Trump during his 2016 presidential campaign, the issue has become somewhat of a hot topic again, as it was in the past. In the current time, it is simply a good idea to understand which rights come with birthright citizenship, and which rights one might stand to lose if it is eliminated.

History of Birthright Citizenship

Many countries worldwide confer birthright citizenship, but not all. The United States established the practice with the passage of the 14th Amendment in 1868, though it has its roots in English common law, which is the cornerstone of U.S. jurisprudence. The amendment did not initially apply to Native Americans, who did not receive official birthright citizenship until 1924, though many were already citizens.

The pivotal case that has been held to establish birthright citizenship for the majority of those born in the United States is U.S. v. Wong Kim Ark (1898), in which it was held that anyone born in the United States to parents who have a permanent U.S. domicile (even if they are subjects of a foreign power) who are not engaged in diplomacy on behalf of that foreign power is a citizen. This expressly excludes children born to foreign diplomats, but most others born on U.S. soil are included in this ruling.

“Subject To The Jurisdiction Thereof”

Despite the established history of birthright citizenship in the U.S., politicians have, at varying intervals, raised the question of whether or not the amendment applies to a certain group. The issue of undocumented immigrants has been revisited many times, most recently by Donald Trump during his 2016 campaign, and the debate has almost always centered around the wording of the relevant clause in 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 State wherein they reside."

The issue is whether undocumented immigrants, those who have entered the country without inspection or overstayed their visas, are truly “subject to the jurisdiction [of the United States].” Many argue that undocumented immigrants who have a child born in the United States do so to obtain benefits. But in reality, any benefits that would be available to the undocumented parents of a U.S. born child would be very long in coming, as the child would not be able to petition for his or her parents to become LPRs until he or she turned 18 years of age. Mr. Trump’s plan does not adequately address such concerns, but one assumes it will be debated when its provisions are introduced in Congress.

Contact an Immigration Attorney

While it does not appear that birthright citizenship will end in the near future, it is still important to be informed and to understand your rights with or without it. A competent immigration attorney can help you understand your position in the complex immigration hierarchy of the United States. The zealous Chicagoland immigration lawyers at Mevorah & Giglio Law Offices are ready to answer your questions, and help suggest pathways going forward for you and your family. Contact us today to set up a free consultation.