What is ‘birthright citizenship’?

Donald Trump has often stated he wants to end “birthright citizenship” for children born in the US to undocumented parents. He is obviously against “birth tourism,” where pregnant women, about to give birth, enter the US solely for their child to be born in the US and therefore be considered a US citizen. He also opposes undocumented immigrants coming across the border (or overstaying their visas) and giving birth, making their children automatic US citizens.

There have been millions of children born in the US to undocumented immigrants, who have long been considered US citizens.  Many of those children have even gone on to perhaps petition their parents when they reached 21 years of age.

But what is birthright citizenship, and what is the argument for precluding children of undocumented immigrants from being considered US citizens, even if born within the US?

We start with the 14th Amendment to the US Constitution, which provides the foundation for birthright citizenship:

“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.” (Emphasis added)

The key phrase in the 14th Amendment is that persons born in the US are considered US citizens only if they are “subject to the jurisdiction” of the US. If a person is not subject to US jurisdiction, they should not be considered a US citizen at birth.

The phrase “subject to the jurisdiction” of the US has always been interpreted to pertain to citizenship claims by the children of diplomats, ambassadors and hostile combatants. For example, ambassadors and other diplomats enjoy diplomatic “immunity” while in the US and are therefore not subject to US jurisdiction. If their children are born in the US, they are not considered automatic US citizens.

The argument goes that if a person is out of status, or owes allegiance to another country, they are not subject to US jurisdiction.  Therefore, if their children are born in the US, the children are not birthright citizens.

However, I do not believe Trump would be successful in attempting to end birthright citizenship. A constitutional amendment to the 14th Amendment is remote. If he tries an executive order, Biden would immediately rescind it.

In addition, the US Supreme Court has a history of deciding cases upholding birthright citizenship. As early as 1804, the US Supreme Court decided a case, where they held that a person born in the US was a US citizen, even if the person later on lived most of his life outside the US. Birth in the US was enough to convey citizenship.

In conclusion, unless there is a constitutional amendment to the 14th Amendment, I do not believe birthright citizenship will change.  If a child is born in the US, and their parents are not diplomats, the child will be considered a US citizen at birth. Once they reach 21 years of age, they could petition their parents. However, whether their parents will be eligible to adjust status (apply for a green card) in the US may be a different issue. Being out of status, the parents’ manner of entry into the US, and their immigration history, could affect the child’s ability to petition their parents.

If you have a US-born child over 21 years of age and are considering having that child petition you, I would recommend that you consult with an attorney who can evaluate your situation, including your immigration history and status, to determine eligibility and the best course of action for you to legalize your status.

WEBSITE: www.gurfinkel.com

Follow us on Facebook.com/GurfinkelLaw, Twitter @GurfinkelLaw and YouTube: US Immigration TV

Four offices to serve you: LOS ANGELES; SAN FRANCISCO; NEW YORK: TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465); PHILIPPINES: +632 88940258 or +632 88940239