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By Ben Wisniewski and Hongmin Zhang

Birthright citizenship has recently become a very controversial topic in the nationwide immigration debate. The United States is one of the few remaining countries to grant citizenship to all children born on its soil. The United Kingdom, Ireland, India and Australia, among others, have since revised their birthright laws, no longer allowing every child born on their soil to get citizenship. Many people in this country believe that America is a nation built by immigrants from all over the world and birthright citizenship is a fundamental American value. However, many on the Republican side of the aisle have begun to question this ethos and have publically expressed a desire to change this time honored American tradition.   

For example, Republican Sen. Lindsey Graham (R-SC) has recently stated that, "Birthright citizenship I think is a mistake". In addition, House Minority Leader John Boehner (R-OH) has said that repealing birthright citizenship is "worth considering." Senate Minority Leader Mitch McConnell (R-KY) along with Sen. John Cornyn (R-TX) have also stated support for holding hearings on ending birthright citizenship. Sen. John Kyl (R-AZ) has suggested that Congress look into denying citizenship to illegal aliens’ children born in the U.S. This sentiment is also shared by up and coming Republican senatorial candidates such as Sharron Angle in Nevada and Rand Paul in Kentucky.    

This recent push to end birthright citizenship has gained steam during this election year but this is not the first time such a measure has been tried. In the past decade, legislation has been introduced in Congress which has sought to declare that U.S.-born children of foreign nationals are not subject to the "jurisdiction" of the United States, and thus are not entitled to citizenship unless at least one parent is a U.S. citizen or a lawful permanent resident. For example, Rep. Nathan Deal (R-GA) introduced the "Citizenship Reform Act of 2005" (H.R. 698) in the 109th Congress, the "Birthright Citizenship Act of 2007" (H.R. 1940) in the 110th Congress, and the "Birthright Citizenship Act of 2009" (H.R. 1868) in the 111th Congress. However, all of these bills have largely been legislative failures and have gained no traction in Congress.

In the unlikely event that such a bill were to pass, it would instantly be challenged in the courts as unconstitutional legislation. This is one of the few areas that the Constitution is exceedingly clear on. The 14th Amendment explicitly 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."

Opponents of birthright citizenship may try to argue that since the 14th Amendment was enacted after the Civil War, its primary purpose was to grant citizenship to the descendants of slaves and therefore it does not apply to children of undocumented immigrants. Others opponents have argued that children of undocumented immigrants are subject to the jurisdiction of their parents' homelands instead of being subject to the jurisdiction of the United States and hence are not guarantied citizenship under the 14th Amendment. However, this interpretation is diametrically opposed by Supreme Court legal precedent.

The land mark ruling on this issue comes from the case, United States v. Wong Kim Ark, 169 U.S. 649, which was decided in 1898. In this case, Wong Kim Ark was born in San Francisco, California but his parents were immigrants from China. Wong, who was employed in San Francisco as a cook, sailed to China on a temporary visit in 1894. When he returned to the U.S., he was detained at the Port of San Francisco by Customs, who denied him permission to enter the country. Officials at the Port of San Francisco made the same argument that opponents of birthright citizenship make today, i.e. Wong did not fall under the jurisdiction of the United States, as required for citizenship under the 14th Amendment, because his parents were subjects of the Emperor of China, and hence Wong was also subject to China’s jurisdiction.

The U.S. Supreme Court disagreed with this logic. In a 6-2 decision, the Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child's birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth. The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted to exclude 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 and that since none of these conditions applied to Wong's situation, Wong was a U.S. citizen, regardless of the fact that his parents were not U.S. citizens. Thus, any such attempt at legislation to ban birthright citizenship based on the "subject to the jurisdiction" phrase in the 14th Amendment would be struck down as unconstitutional.

As a result of this binding legal precedent, modern day opponents of birthright citizenship are left with only one option – changing the 14th Amendment by further amending the Constitution. Passing a constitutional amendment is the single most difficult option for changing U.S. law. In order to change the Constitution, the amendment must receive support from two-thirds of both the House and Senate, as well as, support from three-fourths of state legislatures. This means that state governments in at least 38 states would have to agree to the change. In today’s bitterly divided political climate, it seems almost inconceivable that any amendment, let alone one to abolish the long held tradition of birthright citizenship in America, would receive support from 66 Senators, 290 House Representatives, and 38 state legislatures.

In conclusion, those who support birthright citizenship have very little to fear. Given the clear language of the 14th Amendment, American legal precedent, and the inherent difficulty of amending the Constitution, it seems extremely unlikely that opponents of this fundamental American value will be successful in ending birthright citizenship. In all likelihood, Republicans realize this but are cynically using birthright citizenship as a wedge issue to take advantage of anti-immigrant sentiment brought on by the recession and use this to energize their base of voters to come out and support them during the 2010 Midterm Elections. For those who feel strongly about this issue, it is recommended that they find out where their local candidates stand on birthright citizenship and vote accordingly.       

*Ben Wisniewski is an associate attorney with Zhang & Associates, P.C. at the New York Office. Hongmin Zhang is a management analyst with Zhang & Associates, P.C.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fourteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(08/25/2010)

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