Birthright citizenship in the United States


Birthright citizenship in the United States is United States citizenship acquired by a person automatically, by operation of law. This takes place in two situations: by virtue of the person’s birth within United States territory or because one or both of his or her parents is a US citizen. Birthright citizenship contrasts with citizenship acquired in other ways, for example by naturalization.
Birthright citizenship arises from the first part of the Citizenship Clause introduced by the Fourteenth Amendment to the United States Constitution, which states:
The Amendment overrode the Supreme Court decision in Dred Scott v. Sandford that denied US citizenship to African Americans, whether born in the United States or not, and whether a slave or a free person. Pursuant to the Fourteenth Amendment and the Immigration and Nationality Act a person born within and subject to the jurisdiction of the United States automatically acquires US citizenship, known as jus soli. This includes the territories of Puerto Rico, the Marianas, and the U.S. Virgin Islands. Birthright citizenship also applies to children born elsewhere in the world to US citizens, known as jus sanguinis.
The application of birthright citizenship to children of illegal immigrants remains controversial. The Pew Hispanic Center estimates that approximately 7.5% of all births in the U.S. are to unauthorized immigrants. The Pew Hispanic Center also estimates that there are 4.5 million children who were born to unauthorized immigrants that received citizenship by birth in the United States, while the Migration Policy Institute estimates that there are 4.1 million children. Both estimates exclude anyone 18 and older who might have benefited. On January 24, 2020, the Trump administration adopted a policy to make it more difficult for pregnant foreign women to come to the US where it is suspected that the purpose is to give birth on US soil and thereby to ensure their children become US citizens, a practice commonly known as "birth tourism."

Current U.S. law

Citizenship in the United States is a matter of federal law, governed by the United States Constitution.
Since the adoption of the Fourteenth Amendment to the United States Constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause, 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."

Statute, by birth within U.S.

Under United States Federal law, a person is a United States national and citizen if:
The Fourteenth Amendment applies to incorporated territories, so people born in incorporated territories of the U.S. are automatically U.S. citizens at birth.
There are special provisions governing children born in some current and former U.S. territories or possessions, including Puerto Rico, the Panama Canal Zone, the Virgin Islands, Guam, and the Northern Mariana Islands. For example, states that "All persons born in Puerto Rico April 11, 1899, and... January 13, 1941... residing on January 13, 1941, in Puerto Rico... persons born in Puerto Rico on or after January 13, 1941,... are citizens of the United States at birth."
According to congressional enactment, persons born in American Samoa are American nationals but not U.S. citizens., a U.S. District court in Utah effectively ruled that people born in the territory of American Samoa should be recognized as U.S. citizens, but issued a stay of the ruling on December 13, 2019 until the issue is resolved on appeal.

Outlying possessions

According to persons born in an outlying possession of the U.S. are U.S. nationals but not citizens, unless otherwise provided in section 1401. The U.S. State Department publication titled Historical Background to Acquisition by Birth in U.S. Territories and Possessions explains the complexities of this topic.

U.S. waters and airspace

A child born in U.S. waters or airspace is a U.S. citizen by birth. See 8 FAM 301.1–4, 8 FAM 301.1–5, and 8 FAM 301.1–6.

Statute, by parentage

Under certain circumstances, children may acquire U.S. citizenship from their parents. The Naturalization Act of 1790 provided for birthright citizenship for children born out of U.S. jurisdiction to two citizen parents. The Naturalization Act of 1795, which increased the period of required residence from two to five years, introduced the Declaration of Intention requirement, or "first papers", which created a two-step naturalization process, and omitted the term "natural born". The Act specified that naturalized citizenship was reserved only for "free white person" and changed the requirement in the 1790 Act of "good character" to read "good moral character". The Naturalization Act of 1798 increased the period necessary for immigrants to become naturalized citizens in the United States from 5 to 14 years.
In 1855, birthright citizenship was extended to children with citizen fathers and noncitizen mothers. In 1934, it was extended to children with citizen mothers and noncitizen fathers. From 1940 until 1978, a child born abroad who acquired U.S. citizenship at birth but had only one U.S. citizen parent had to fulfill a "retention requirement" of residing, or being physically present, in the United States or its outlying possessions for a certain number of years before reaching a specified age. Otherwise the child would not retain the U.S. citizenship. The retention requirement was changed several times, eliminated in 1978, and subsequently eliminated with retroactive effect in 1994.

Children born overseas to married parents

The following conditions affect children born outside the U.S. and its outlying possessions to married parents :
There is an asymmetry in the way citizenship status of children born overseas to unmarried parents, only one of whom is a U.S. citizen, is handled.
Title paragraph provides that children born abroad after December 24, 1952, to unmarried American mothers are U.S. citizens, as long as the mother has lived in the U.S. for a continuous period of at least one year at any time prior to the birth.
paragraph provides that children born to American fathers unmarried to the children's non-American mothers are considered U.S. citizens only if the father meets the "physical presence" conditions described above, and the father takes several actions:
Because of this rule, unusual cases have arisen whereby children have been fathered by American men overseas from non-American women, brought back to the United States as babies without the mother, raised by the American father in the United States, and later held to be deportable as non-citizens in their 20s. The final element has taken an especially significant importance in these circumstances, as once the child has reached 18, the father is forever unable to establish paternity to deem his child a citizen.
This distinction between unwed American fathers and American mothers was constructed and reaffirmed by Congress out of concern that a flood of illegitimate Korean and Vietnamese children would later claim American citizenship as a result of their parentage by American servicemen overseas fighting wars in their countries. In many cases, American servicemen passing through in wartime may not have even learned they had fathered a child. In 2001, the Supreme Court, by 5–4 majority in Nguyen v. INS, first established the constitutionality of this gender distinction.

Eligibility for office of President

According to the Constitution of the United States only natural born citizens are eligible to serve as President of the United States or as Vice President. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis and those whose citizenship is based on jus soli. As a result, controversies have arisen over the eligibility of a number of candidates for the office.

Legal history

Throughout the history of the United States, the fundamental legal principle governing citizenship has been that birth within the United States grants U.S. citizenship; although enslaved persons and children of enslaved mothers, under the principle of partus sequitur ventrem, were excluded. The United States did not grant citizenship after the American Civil War to all former slaves until the passage of the Civil Rights Act of 1866, which was subsequently confirmed by the Fourteenth Amendment. American Indian tribal members are not covered specifically by the constitutional guarantee. Those living in tribes on reservations were generally not considered citizens until passage of the Indian Citizenship Act of 1924, although by that time nearly two-thirds of American Indians were already citizens.

English common law

Birthright citizenship, as with much United States law, has its roots in English common law. Calvin's Case, 77 Eng. Rep. 377, was particularly important as it established that, under English common law, "a person's status was vested at birth, and based upon place of birth—a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection."
This same principle was accepted by the United States as being "ancient and fundamental", i.e., well-established common law, as stated by the Supreme Court in 1898: "the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." United States v. Wong Kim Ark, 169 U.S. 649.

Federal law

The Naturalization Act of 1790 provided the first rules to be followed by the United States in the granting of national citizenship. Since that time, laws concerning immigration and naturalization in the United States have undergone a number of revisions.

''Dred Scott v. Sandford''

Justice Roger B. Taney in the majority opinion in Dred Scott v. Sandford held that African Americans, whether slave or free, had never been and could never become citizens of the United States, as they were excluded by the Constitution. The political scientist Stuart Streichler writes that Taney's decision was based on "a skewed reading of history". Justice Benjamin R. Curtis in his dissent showed that under the Articles of Confederation, free blacks had already been considered citizens in five states and carried that citizenship forward when the Constitution was ratified.
Justice Curtis wrote:
The first section of the second article of the Constitution uses the language "a natural-born citizen". It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in the history of this country at the time of the adoption of the Constitution, which referred Citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies, were the subjects of the King; that by the Declaration of independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States... The Constitution has left to the States the determination what person, born within their respective limits, shall acquire by birth citizenship of the United States...

1862 opinion of the Attorney General of the United States

In 1862, Secretary of the Treasury Salmon P. Chase sent a question to Attorney General Edward Bates asking whether or not "colored men" can be citizens of the United States. Attorney General Bates responded on November 29, 1862, with a 27-page opinion concluding, "I conclude that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States,..." In the course of that opinion, Bates commented at some length on the nature of citizenship, and wrote,

Civil Rights Act of 1866

The Civil Rights Act of 1866 declared: "...all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

Fourteenth Amendment to the United States Constitution

Since the adoption of the Fourteenth Amendment to the Constitution on July 9, 1868, citizenship of persons born in the United States has been controlled by its Citizenship Clause, 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."

Expatriation Act of 1868

This act, a companion piece to the Fourteenth Amendment, was approved on July 27, 1868.
The Expatriation Act of 1868 led President Ulysses S. Grant to write in 1873, that the United States had "led the way in the overthrow of the feudal doctrine of perpetual allegiance".
Edward J. Erler of California State University, San Bernardino, and Brook Thomas of the University of California at Irvine, have argued that this Act was an explicit rejection of birth-right citizenship as the ground for American citizenship, basing that argument on the debate that surrounded the passage of this act. Professor Garrett Epps of the University of Baltimore disagrees: "The Expatriation Act is not, as Erler imagines, 'a necessary companion piece to the citizenship clause.' In fact, there is no relationship at all between the two. The act was written in a different year, by different authors, on a different subject, and in a different Congress, than the Fourteenth Amendment."

1873 opinion of the Attorney General

In 1873, The Attorney General of the United States published the following legal opinion concerning the Fourteenth Amendment:
The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.

The Attorney General clarified this remark as follows:
The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father. The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it. Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father.

Indian Citizenship Act of 1924

The Indian Citizenship Act of 1924 provided "That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States". This same provision is contained in present-day law as section 301 of the Immigration and Nationality Act of 1965.

U.S. Supreme Court case law

Sailor's Snug Harbor

In the case of Inglis v. Trustees of Sailor's Snug Harbor, the Supreme Court decided the question of the disposition of the estate of a man born in New York State in 1776. The Supreme Court resolved complicated questions of how citizenship had been derived during the Revolutionary War. The court found that the jus soli is so consistent in American Law as to automatically grant American citizenship to children born in New York City between the Declaration of Independence and the Landing at Kip's Bay in 1776, but not to children born in New York during the British occupation that followed.
Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

The Slaughter-House Cases

In the Slaughter-House Cases, —a civil rights case not dealing specifically with birthright citizenship—a majority of the Supreme Court mentioned in passing that "the phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States".

''Elk v. Wilkins''

In Elk v. Wilkins,, the Supreme Court denied the birthright citizenship claim of an American Indian. The court ruled that being born in the territory of the United States is not sufficient for citizenship; those who wish to claim citizenship by birth must be born subject to the jurisdiction of the United States. The court's majority held that the children of Native Americans were
Thus, Native Americans who voluntarily quit their tribes would not automatically become U.S. citizens. Native Americans were granted U.S. citizenship by Congress half a century later in the Indian Citizenship Act of 1924, which rendered the Elk decision obsolete.

''United States v. Wong Kim Ark''

In the case of United States v. Wong Kim Ark,, the Supreme Court was presented with the following question:
The decision centered upon the 14th Amendment's reference to "jurisdiction", and concluded:

Canadians transferred to U.S. hospitals

Since the majority of Canadians live in the relatively thin strip of land close to the long border with the United States, Canadians in need of urgent medical care are occasionally transferred to nearby American medical centers. In some circumstances, Canadian mothers facing high-risk births have given birth in American hospitals. Such children are American citizens by birthright.
In these circumstances, Canadian laws are similar to those of the United States. Babies born in Canada of American parents are also Canadian citizens by birthright.
In both of these situations, the birthright citizenship is passed on to their children, born decades later. In some cases, births in American hospital have resulted in persons who lived for much of their lives in Canada, but not knowing that they had never had official Canadian citizenship. This group of people is sometimes called Lost Canadians.
Another problem arises where a Canadian child, born to Canadian parents in a U.S. border hospital, is treated as a dual citizen and added to the United States tax base on this basis despite having never lived, worked nor studied in that nation. While Canadian income tax is payable only by those who reside or earn income in Canada, the U.S. Internal Revenue Service taxes its citizens worldwide. Campobello Island is particularly problematic as, while legally part of New Brunswick, the only year-round fixed link off the island leads not to Canada but to Lubec, Maine—leading to many Canadians whose families have lived on Campobello for generations not being able to claim to be born in Canada.

Political controversies

Original meaning

During the original debate over the 14th Amendment Senator Jacob M. Howard of Michigan—the sponsor of the Amendment, though the Citizenship Clause was written by Senator Wade—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of 1866, namely, that it excludes American Indians who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers". Others also agreed that the children of ambassadors and foreign ministers were to be excluded. Concerning the children born in the United States to parents who are not U.S. citizens, three senators, including Senate Judiciary Committee Chairman Lyman Trumbull, the author of the Civil Rights Act, as well as President Andrew Johnson, agreed, asserting that both the Civil Rights Act and the 14th Amendment would confer citizenship on them at birth, and no senator offered a contrary opinion.
Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Senator James R. Doolittle of Wisconsin asserted that all Native Americans are subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.
Edward Erler argued that since the Wong Kim Ark case dealt with someone whose parents were in the United States legally, there is no valid basis under the 14th Amendment for the practice of granting citizenship to U.S.-born children of illegal immigrants: "Even if the logic is that Wong Kim Ark became a citizen by birth with the permission of the United States when it admitted his parents to the country, no such permission has been given to those who enter illegally." Akhil Amar responded to Erler, "I'm not sure that his Pandora's box can be limited to children of illegal aliens. It is a thin edge of a very big and dangerous wedge that I think runs squarely into Wong Kim Ark." Similarly, Angelo Ancheta criticized the "consent-based theory of citizenship", saying that "The Fourteenth Amendment was designed to ensure citizenship for 'all persons' born in the United States, particularly in response to ambiguities in legal status that attached to being the descendants of an outsider class, namely slaves."

Opposition to birthright citizenship

In the late 1990s opposition arose over the longstanding practice of granting automatic citizenship on a jus soli basis. Fears grew in some circles that the existing law encouraged parents-to-be to come to the United States to have children in order to improve the parents' chances of attaining legal residency themselves. Some media correspondents and public leaders, including former congressman Virgil Goode, have controversially dubbed this the "anchor baby" situation, and politicians have proposed legislation on this basis that might alter how birthright citizenship is awarded.
A Pew Hispanic Center analysis of Census Bureau data determined that about 8 percent of children born in the United States in 2008—about 340,000—were offspring of "unauthorized immigrants". In total, about four million American-born children of unauthorized immigrant parents resided in this country in 2009, along with about 1.1 million foreign-born children of unauthorized immigrant parents.
The Center for Immigration Studies—a think tank which favors stricter controls on immigration—claims that between 300,000 and 400,000 children are born each year to illegal immigrants in the U.S.
Bills have been introduced from time to time in Congress which have sought to declare American-born children of foreign nationals not to be "subject to the jurisdiction of the United States", and thus not entitled to citizenship via the 14th Amendment, unless at least one parent was an American citizen or a lawful permanent resident.
Both Democrats and Republicans have introduced legislation aimed at narrowing the application of the Citizenship Clause. In 1993, Sen. Harry Reid introduced legislation that would limit birthright citizenship to the children of U.S. citizens and legally resident aliens, and similar bills have been introduced by other legislators in every Congress since. For example, U.S. Representative Nathan Deal, a Republican from the State of Georgia, introduced the "Citizenship Reform Act of 2005" in the 109th Congress, the "Birthright Citizenship Act of 2007" in the 110th Congress, and the "Birthright Citizenship Act of 2009" in the 111th Congress. However, neither these nor any similar bill has ever been passed by Congress.
Some legislators, unsure whether such Acts of Congress would survive court challenges, have proposed that the Citizenship Clause be changed through a constitutional amendment. Senate Joint Resolution 6, introduced on January 16, 2009 in the 111th Congress, proposes such an amendment; however, neither this, nor any other proposed amendment, has yet been approved by Congress for ratification by the states.
President Donald Trump said on October 30, 2018 that he intends to remove, by means of an executive order, the right of citizenship to people born in the U.S. to foreign nationals. In August USA Today reported that the new policy will make U.S. service members and government employees whose child is not automatically a United States citizen go through a different process to apply for their child's citizenship and that, according to estimates by the United States Citizenship and Immigration Services, this will impact approximately 20 to 25 people annually.