Birthright citizenship in the United States
United States citizenship can be acquired by birthright in two situations: by virtue of the person's birth within United States territory or because at least one of their parents was a U.S. citizen at the time of the person's birth. Birthright citizenship contrasts with citizenship acquired in other ways, for example by naturalization.[1]
For laws regarding U.S. citizenship, see United States nationality law. For U.S. citizenship (birthright and naturalized), see Citizenship of the United States.
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:
The Amendment overrode the Supreme Court decision in Dred Scott v. Sandford (1857) that denied U.S. 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 a person born within and subject to the jurisdiction of the United States automatically acquires U.S. 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 undocumented immigrants.[6] Some argue citizenship is not guaranteed by the Fourteenth Amendment to such children, but this interpretation has never been endorsed by federal courts. The Pew Hispanic Center estimated in 2015 that approximately 7.5% of all births in the U.S. (about 300,000 births per year) are to unauthorized immigrants and 4.5 million such children received citizenship by birth in the United States. In 2018, the Migration Policy Institute estimated numbers at 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]
U.S. Supreme Court case law[edit]
Sailor's Snug Harbor[edit]
In the case of Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830)[a] 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.
Canadians transferred to U.S. hospitals[edit]
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.[91]
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.[92]
In both of these situations, the birthright citizenship is passed on to their children, born decades later. In some cases, births in American hospital (sometimes called "border babies") have resulted in persons who lived for much of their lives in Canada without knowing that they had never had official Canadian citizenship. Some of these people have been called Lost Canadians.[93]
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.[94]
Demographics[edit]
Many farmworkers do not have citizenship, but do have children who qualify by jus soli.[128]
Jus Soli is the law that declares citizenship is received at birth within the area of the state, no matter what citizenship the children's parents are. Jus Soli is the main basis for the Fourteenth Amendment to the Constitution. [129]
To revoke birthright citizenship from children born in the United States, with parents who are unauthorized immigrants would end up resulting in a very notable increase in the size of the unauthorized immigrant people in the United States.[130]