Center for Immigration Studies

Art Arthur

November 5, 2018

Birthright Citizenship: An Overview

Andrew R. Arthur is a resident fellow in law and policy at the Center for Immigration Studies.

Summary

• The issue of birthright citizenship, as it pertains to children born in the United States to aliens unlawfully present, remains an open question. Although this fact would appear to be resolved in the public imagination, it has not actually been ruled upon dispositively by the Supreme Court. President Trump’s assertion that he would end birthright citizenship by an as-yet-unpublished executive order has brought this issue into focus. Should he issue such an executive order, it would provide the Supreme Court the opportunity to resolve the issue once and for all.
• Citizenship is currently offered to all children who are born in 39 countries (with the exception of children of diplomats), most of which are in the Western Hemisphere. No country in Western Europe offers birthright citizenship without exceptions to all children born within their borders.¹
• Many countries, including France, New Zealand, and Australia, have abandoned birthright citizenship in the past few decades.² Ireland was the last country in the European Union to follow the practice, abolishing birthright citizenship in 2005.³
• The costs of births for the children of illegal aliens is staggering. The Center for Immigration Studies (CIS) estimates that in 2014, $2.35 billion in taxpayer funding went to pay for more than 273,000 births to illegal immigrants.⁴

Introduction

President Trump’s recent pronouncement that he plans to sign an executive order to end birthright citizenship has brought that issue, which has been debated for the last 150 years, to the fore. According to Quartz, 39 countries currently offer citizenship to persons born therein, with the exception of children of diplomats, most of which are in the Western Hemisphere.⁵

Most of our major allies do not follow the practice. The Central Intelligence Agency (CIA) World Factbook, for example, states that Germany does not offer citizenship by birth, and offers citizenship by descent only if at least one parent is a German citizen or a resident alien who has lived in Germany for at least eight years.⁶ Similarly, according to the CIA, the United Kingdom does not offer birthright citizenship, and offers citizenship by descent only if at least one parent is a citizen of the United Kingdom.⁷

As The Atlantic has noted, many countries that used to have birthright citizenship have done away with the practice.⁸ It explains:

France did away with birthright citizenship in 1993, following the passage of the Méhaignerie Law. The law limited citizenship to those born to a French parent, or to a parent also born in France. As a result, those born in France to foreign-born parents must wait until they turn 18 to automatically acquire French citizenship (a process that can begin when they turn 13, if they apply).

Ireland was the last of the European Union countries to abolish birthright citizenship, in 2005. Through a referendum backed by nearly 80 percent of Irish voters, citizenship was limited to those born to at least one Irish parent. The decision was a response to a controversy surrounding birth tourism and the high-profile case of Man Levette Chen, a Chinese national who traveled to Northern Ireland so that her daughter would be born an Irish citizen. Chen sought residency rights in Britain, citing her child’s Irish and EU citizenship. Though the United Kingdom Home Office rejected Chen’s application, the decision was overturned by the European Court of Justice in 2004.

Other countries, including New Zealand and Australia, have also abolished their birthright-citizenship laws in recent years. The latest is the Dominican Republic, whose supreme court ruled to remove the country’s birthright laws in 2013. The decision retroactively stripped tens of thousands of people born to undocumented foreign parents of their citizenship and rendered them “ghost citizens,” according to Amnesty International.

Benefits of U.S. Citizenship

United States citizenship is one of, if not the, most exulted and prized statuses in the world. Citizenship in this country offers the most significant economic opportunities. It guarantees the fullest protection of our laws and of the security afforded by our military servicemen and -women around the world. And, most importantly, it provides the chance to participate in the world’s oldest existing democracy.⁹

As an immigration judge, I was honored to have had the authority and opportunity to administer the oath of allegiance and renunciation to new citizens.¹⁰ In addition, I was often called upon to adjudicate cases in which an individual charged as an alien with removability claimed instead to be a citizen of the United States, either by birth or derivation.

Significantly, while there are many benefits that the Constitution and laws of the United States grant to both citizens and aliens, certain benefits are available only to U.S. citizens. These include the right to vote, priority when it comes to bringing family members to the United States, the ability to convey citizenship to a child born abroad, travel with a U.S. passport, and eligibility for most federal jobs and elected offices.¹¹

More prosaically, U.S. citizens have access to many forms of government benefits that are not, as a rule, available to aliens, even to many aliens lawfully present in the United States.¹² Specifically, citizens are not subject to restrictions for the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps), the Supplemental Security Income (SSI) program, Temporary Assistance for Needy Families (TANF) cash assistance, and Medicaid that apply to certain categories of aliens in the United States.¹³ In addition, citizens are not barred from receiving federal student aid, as certain aliens are.¹⁴

Most significantly, however, U.S. citizens are not amenable to removal from the United States, unless they have been denaturalized.¹⁵

Becoming a Citizen

Understanding the benefits of U.S. citizenship, the question is then how one becomes a citizen. As the Congressional Research Service (CRS) has explained: “United States citizenship is conferred at birth both under the principle of jus soli (nationality of place of birth) and the principle of jus sanguinis (nationality of parents).”¹⁶ With respect to these individuals, section 301 of the Immigration and Nationality Act (INA) states that:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions 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 prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person 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;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.¹⁷

In addition, as noted, aliens may become naturalized citizens¹⁸ and “[o]n occasion, Congress has collectively naturalized the population of a territory upon its acquisition by the United States, though in these instances individuals have at times been given the option of retaining their former nationality.”¹⁹ 

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