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 their parents is (or was) a US citizen. Birthright citizenship contrasts with citizenship acquired in other ways, for example by naturalization.[1]

Birthright citizenship is guaranteed to most people born on U.S. territory by the first part of the Citizenship Clause introduced by the Fourteenth Amendment to the United States Constitution (adopted July 9, 1868), 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".

The Amendment overrode the Supreme Court decision in Dred Scott v. Sandford (1857) that denied US citizenship to African Americans, whether born in the United States or not, and whether a slave or a free person.[2] Pursuant to the Fourteenth Amendment and the Immigration and Nationality Act (INA) a person born within and subject to the jurisdiction of the United States automatically acquires US citizenship, known as jus soli ("right of the soil").[3] This includes the territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands), and the U.S. Virgin Islands.[4][5] The "subject to the jurisdiction thereof" clause excluded Native Americans living under tribal sovereignty, and U.S.-born children of foreign diplomats. Birthright citizenship was later extended to U.S.-born Native American subjects by the Indian Citizenship Act of 1924. Federal law also grants birthright citizenship to children born elsewhere in the world to U.S. citizens (with certain exceptions), known as jus sanguinis ("right of blood").

Some people oppose the application of birthright citizenship to children of illegal immigrants.[6] Some argue citizenship is not guaranteed by the Fourteenth Amendment to the children of illegal immigrants, but this interpretation has never been endorsed by federal courts. The Pew Hispanic Center estimates that approximately 7.5% of all births in the U.S. (about 300,000 births per year) are to unauthorized immigrants.[7] The Pew Hispanic Center also estimates that there are 4.5 million children born to unauthorized immigrants who 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.[7][8] 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 called "birth tourism".[9]

  1. ^ 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever.") (emphasis added).
  2. ^ Smith, Rogers M. (2009). "Birthright Citizenship and the Fourteenth Amendment in 1868 and 2008". University of Pennsylvania Journal of Constitutional Law. 11 (5): 1329–1336.
  3. ^ 8 U.S.C. § 1401 ("Nationals and citizens of United States at birth").
  4. ^ See 8 U.S.C. § 1101(a)(36) (defining "State") and 8 U.S.C. § 1101(a)(38) (defining "United States").
  5. ^ Weiner 1998, p. 238.
  6. ^ Max Ehrenfreund (August 17, 2015). "Understanding Trump's plan to end citizenship for undocumented immigrants' kids". Washington Post.
  7. ^ a b Wall Street Journal: "Birthright Citizenship, by the Numbers" August 20, 2015
  8. ^ "Number of babies born to unauthorized immigrants in U.S. continues to decline". Pew Research Center. Retrieved October 30, 2018.
  9. ^ US issues new rules restricting travel by pregnant foreigners, fearing the use of 'birth tourism'.

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