An Exploration of Birthright Citizenship

Introduction

Immigration was a major focus for the Trump Administration. Through extreme rhetoric and legal action, the Trump administration revived a longstanding dispute: birthright citizenship. Birthright citizenship is a legal doctrine revolving around the granting of automatic citizenship.^[1] Trump’s goal was to end the principle of birthright citizenship and impose stricter regulations on obtaining American citizenship.^[2] This article will analyze the history of birthright citizenship, focusing on relevant case law and delving into both sides of the debate. Moreover, there will be an exploration on the impact birth tourism has on the birthright citizenship controversy, including how legal action has been implemented to deter such measures. Lastly, there will be an examination of a newfound issue with surrogacy and how it is affected by the rule of birthright citizenship.

Birthright Citizenship

In the United States, birthright citizenship is a legal right to citizenship for all children born in United States territory, regardless of parentage.^[3] Citizenship acquired from birth can occur in one of two ways: (1) when a person is born within United States territory, also known as jus soli (the law of the soil) and (2) when one or both of an individual’s parents are United States citizens, thus the parents convey citizenship unto their child, also known as jus sanguinis (the law of the bloodline).^[4] However, over the years citizenship through lineage has been full of hurdles and adaptations that have made it harder to achieve the latter form of citizenship.^[5] Some examples include discrepancies on whether citizenship is passed on to a child based on whether they were born out of wedlock, gender issues surrounding which parent is the American citizen, and residency requirements within the United States.^[6] In the case that one does not acquire citizenship by birth, the individual must go through the naturalization process. Under 8 U.S.C. § 1401, the term “naturalization” means “the conferring of nationality of a state upon a person after birth, by any means whatsoever.” ^[7]

Birthright citizenship is governed by the Fourteenth Amendment which states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”^[8] Even within the Amendment lies various ambiguities that have needed to be addressed throughout history. For example, the issue of what exactly constitutes the jurisdiction of the United States has been prominent. It has been recognized that all the states within the United States and its territories such as Puerto Rico, Guam, and the US Virgin Islands are considered part of the United States jurisdiction. However, places such as American Samoa & Swains Islands territory are not part of United States jurisdiction, meaning that citizenship does not automatically confer at birth.^[9] While the Amendment does not discuss air or water boundaries, it is recognized that those born on sea territory or airspace that are a part of the United States satisfy the jurisdiction requirement to automatically become United States citizens at birth.^[10] Whereas, locations such as an United States military base outside of the country or an United States registered aircraft are not deemed to have been within US territory (and thus jus soli cannot apply). ^[11]

The United States Supreme Court has attempted to interpret and establish what provisions of the Fourteenth Amendment mean on various occasions. In one such case, Dred Scott v. Sandford, the Supreme Court dealt with the issue of who is entitled to citizenship.^[12] In what is widely considered one of the worst decisions by historians and subsequent Supreme Court Justices, the Court determined that African Americans, even though born on United States territory for generations, were not entitled to citizenship.^[13] To undo this atrocious decision, Congress amended the Fourteenth Amendment in 1868 and extended birthright citizenship to everyone “not subject to any foreign power, excluding [Native people who are] not taxed.”^[14]

Fast forward thirty years later, the Supreme Court ruled on what exactly it means to have birthright citizenship yet again in United States v. Wong Kim Ark.^[15] In this case, the Supreme Court had to determine whether a person who is American-born Chinese could be considered an American citizen. Specifically, if the individual’s parents were not, and could never become, naturalized citizens.”^[16] Wong Kim Ark was born in San Francisco and was the son of two Chinese immigrants who legally and permanently immigrated to the United States.^[17] His parents were prohibited from seeking citizenship because of the Chinese Exclusion Act that prevented Chinese immigrants from going through naturalization.^[18] Wong Kim Ark came back to the United States from China but was blocked from entering as immigration officials argued he was not a citizen.^[19] The Supreme Court’s decision solidified the doctrine of jus soli by ruling that because Wong Kim Ark was born within the jurisdiction of the United States, he was a citizen, regardless of his parents’ citizenship status. ^[20]

United States vs. Wong Kim Ark serves as a staple case in immigration law. It has been cited on both sides of the birthright citizenship debate.^[21] Those that believe birthright citizenship should be upheld believe that taking away birthright citizenship will severely harm the structure of a family and cause separation amongst family members.^[22] There is also the argument that universal birthright citizenship provides security by ensuring that the descendants of immigrants born in the United States have the same legal rights as anyone else whose parents are United States citizens.^[23] Furthermore, advocates for maintaining birthright citizenship assert that it helps encourage the integration of society. ^[24] Lastly, proponents of birthright citizenship fear that by not allowing citizenship to automatically confer on those who meet the criteria, many children will experience and be born into statelessness (an individual that does not have the nationality of any country).^[25]

On the other hand, opponents of birthright citizenship argue that while the decision made in Wong Kim Ark was correct, it should be restricted to only apply to people born in the United States to legally authorized immigrants, as was the case with Ark’s parents.^[26] Opposition to birthright citizenship also argue that the text of the Fourteenth Amendment includes “subject to the jurisdiction thereof” to exclude children of non-legal immigrants based upon the belief that the children’s loyalty will lie with their parent’s home country rather than the United States.^[27] Lastly, challengers contend that sustaining the birthright citizenship will incentivize illegal immigration to have American born children.^[28]

Birth Tourism

As aforementioned, one of the arguments made against birthright citizenship is that it can inspire migrants to come to the United States just for the purpose of giving birth, allowing their child the opportunity to automatically have American citizenship.^[29] Such activity is the root of the phenomena known as birth tourism. Birth tourism is the practice of traveling to another country to give birth in that country.^[30] Typically this is done to confer citizenship, though there are other reasons for birth tourism including access to public schools, healthcare, and sponsorship for the parents in the future.^[31] Birth tourism was deemed a major issue under the Trump Administration.^[32] During Trump’s campaign and presidency, evidence shows that birth tourism increased and became a lucrative business in the United States.^[33] In 2015 alone, U.S. Immigration and Customs Enforcement (“ICE”) raided groups in Southern California that charged Chinese women up to $60,000, promising to help with their visas, travel, and lodging at “maternity hotels” so their children could become U.S. citizens.^[34] To address such dilemmas, the Trump Administration issued new—yet excessive—rules denying tourist visas for pregnant women believed to be coming to the United States for the sole purpose of giving birth on United States soil.^[35] Under these new instructions, consular officials have the complete discretion in determining the purpose of an application and may deny a visitor’s visa if there’s any belief the applicant plans to benefit from giving birth in the United States.^[36] Applicants from the 39 countries (mainly European nations) comprising the Visas Waiver Program are exempt.^[37] The new rule is also aimed to ensure that foreign travelers can pay for their medical expenses by having to prove access to adequate finances in their applications to deter birth tourism.^[38]

The Future of Birthright Citizenship

It is important to understand the history and context of birthright citizenship and birth tourism to better understand their roles in how citizenship will be viewed in the future. One issue that is forthcoming is how to deal with citizenship in modern surrogacy cases and whether new standards need to be formed. As technology advances, the law typically lags and takes time to catch up. In recent years, courts have considered the question of whether children born from Assisted Reproduction Technology should be viewed as citizens, and the State Department has even changed its interpretation of longstanding immigration policies, such as children being born outside the U.S. to a surrogate as being born “out of wedlock “in response to such evolution.^[39]

In the 2019 case of Dvash-Banks v. Pompeo, a same-sex couple, the Dvash-Banks, had twins through surrogacy in Canada. The twins were conceived through anonymous donor eggs and sperm from both parents.^[40] One of the parents was born in the United States whereas the other was born in Israel.^[41] The child genetically linked to the American parent was granted citizenship whereas the child from the Israeli-born father was denied citizenship.^[42] This was because the law considered children born outside of the United States through surrogacy to be children born “out of wedlock” thus at least one of the parents needed to be genetically connected to the child and be a United States citizen to bestow citizenship upon the child.^[43] The issue before the Ninth Circuit Court was whether the U.S. State Department erred in not granting the twin that was not genetically related to U.S. father citizenship.^[44] Specifically focusing on whether Section 301 of the Immigration and Nationality Act (‘ INA’) requires a child born abroad to married parents, one of which is a U.S. citizen, has to demonstrate a biological relationship to both of the married parents.^[45] The Dvash-Banks asserted that their son should have acquired U.S. citizenship at birth under Section 301 (g) of the INA because he was born to married parents, one of which was a U.S. citizen at the time of the child’s birth.^[46] Whereas, the U.S. State Department made the argument that according to the INA statute, to confer citizenship upon a child, the United States parent must be genetically related to the child.^[47]

The federal district court ultimately found that the child is a U.S. citizen because his parents were married at the time of his birth and therefore the State Department misapplied the law.^[48] This finding was essential in determining the possible citizenship of the child because the judge ruled that when reading the statute, a genetic link between the child and sponsoring parent is not required.^[49] The Court relied on previous case law outlined in Scale v. INS, a case where a child born to a Philippine mother and United States citizen father, who was not biologically the child’s father, was still found to have U.S citizenship because the mother and father were married at the time of the child’s birth.^[50] In the Dvash-Banks case, one of the parents was a U.S citizen which satisfied the residency requirement under Section 301 of INA. Further, the child’s legal parents were married at the time of his birth, leading the court to decide that the child acquired citizenship at birth.^[51] According to the Ninth Circuit, Section 301 of the INA does not require a person born during a parent’s marriage to show a biological link to both of the married parents.^[52] Consequently, the previous policy surrounding surrogacy and birthright citizenship was amended.^[53] The longstanding legal rule that considered children born outside the U.S. to a surrogate to be born “out of wedlock” even when the parents were married was reversed.^[54] The State Department previously required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.^[55] The new policy asserts that a child born abroad from surrogacy must be to married parents and at least one of the parents should be a U.S. citizen to gain citizenship.^[56]

Conclusion

Since the founding of the United States, there has been the debate of who is entitled to citizenship. Whether it has been about what exactly constitutes a citizen or how citizenship should be conferred. The rise of birth tourism and modern reproductive technology has brought some changes to United States immigration policies. The United States has been a staple figure in immigration law as millions of people throughout history have traveled to the country to make a better livelihood. The text of the constitution clearly establishes what it means to be a citizen of the United States and the protections that should be afforded to not only U.S. citizens but those that find themselves within U.S. territory. Former President Trump’s administration attempted to restrict birthright citizenship, but this mission should be abandoned. It serves no good purpose to take away one’s right to be a citizen of the United States except to further perpetuate hate and cause greater division amongst those in the country, citizen or not. Moreover, the new legislation towards deterring birth tourism is just a cover-up of America’s bigotry at best, as it targets only specific immigrants and further endorses stereotypes against immigrants and their reasons for coming to America. According to the Fourteenth Amendment, birthright citizenship is a right guaranteed to all those born within the jurisdiction of the United States. This legal principle should not be up for debate, it has already been interpreted and decided on. While ventures such as birth tourism do signal some alarms, their occurrences are not that prevalent to upend an entire legal doctrine deeply entrenched in American law. Instead, the law needs to continue to take steps towards protecting birthright citizenship, especially as technology, specifically assisted reproductive technology, continues to advance.

1. Amy Swearer, ARTICLE: Subject to the [Complete] Jurisdiction Thereof: Salvaging the Original Meaning of the Citizenship Clause, 24 Tex. Rev. Law & Pol. 135 (2021). ↑
2. Makini Brice et al., Trump says he is seriously looking at ending birthright citizenship, Reuters (Aug. 21, 2019, 12:43 PM) https://www.reuters.com/article/us-usa-immigration-trump/trump-says-he-is-seriously-looking-at- ending-birthright-citizenship-idUSKCN1VB21B. ↑
3. Amy Swearer, ARTICLE: Subject to the [Complete] Jurisdiction Thereof: Salvaging the Original Meaning of the Citizenship Clause, 24 Tex. Rev. Law & Pol. 135 (2021). ↑
4. Id. ↑
5. Id. ↑
6. Id. ↑
7. 8 U.S.C.S. § 1401. ↑
8. U.S. Const. Amend. XIV, §1 ↑
9. INA 101 (a) (38). ↑
10. Id. ↑
11. Id. ↑
12. Dred Scott v. Sandford, 60 U.S. 393 (1857). ↑
13. Id. ↑
14. Dara Lind, Birthright citizenship explained, Vox (2018), https://www.vox.com/2018/7/23/17595754/birthright-citizenship-trump-14th-amendment-executive-order. ↑
15. Wong Kim Ark, 169 U.S. 649 (1898). ↑
16. Id. ↑
17. Id. ↑
18. Id. ↑
19. Id. ↑
20. Id. ↑
21. Lind, supra note 15 ↑
22. Birthright citizenship debate: Should children born on US soil to undocumented immigrants automatically have US citizenship? Britannica, https://immigration.procon.org/questions/birthright-citizenship-debate-should-children-born-on-us-soil-to-undocumented-immigrants-automatically-have-us-citizenship/ (last visited Oct. 9, 2021). ↑
23. Id. ↑
24. Id. ↑
25. Id. ↑
26. Lind, supra note 15 ↑
27. Birthright citizenship debate: Should children born on US soil to undocumented immigrants automatically have US citizenship? Britannica, https://immigration.procon.org/questions/birthright-citizenship-debate-should-children-born-on-us-soil-to-undocumented-immigrants-automatically-have-us-citizenship/ (last visited Oct. 9, 2021). ↑
28. Id. ↑
29. Id. ↑
30. Nicole Marie Laudick, Note: Book A Stay And Win U.S. Citizenship: Examining Birth Tourism As A Business Subject To Federal Regulatory Controls, 48 Ga. J. Int’l & Comp. L. 274 (2019). ↑
31. Id. ↑
32. Bill Chappell, Trump administration targets ‘birth tourism’ with new Visa Rule, Nat. Pub. Radio (Jan. 23, 2020, 2:50 PM), https://www.npr.org/2020/01/23/798874112/trump-administration-targets-birth-tourism-with-new-visa-rule. ↑
33. Id. ↑
34. Id. ↑
35. Id. ↑
36. Id. ↑
37. Id. Visa Waiver Program (‘VWP’) enables most citizens or nationals of participating VWP countries to travel to the United States for tourism or business for a period of 90 day or less without obtaining a visa. ↑
38. Id. ↑
39. Jaclyn Diaz, U.S. ends policy of denying citizenship to children born via IVF or surrogacy, Nat. Pub. Radio (May 19, 2021, 6:54 AM), https://www.npr.org/2021/05/19/998143097/u-s-ends-policy-denying-citizenship-to-children-born-via-in-vitro-surrogacy. ↑
40. Andrew Mason Dvash-Banks v. Pompeo , No. CV 18-523-JFW(JCx), 2019 U.S. Dist. LEXIS 30525 (C.D. Cal. Feb. 21 , 2019, See also Sarah Zhang, The IVF cases that broke birthright citizenship, The Atlantic (June 10, 2021), https://www.theatlantic.com/science/archive/2021/06/ivf-us-birthright-citizenship/619155/. ↑
41. Id. ↑
42. Id. ↑
43. Jaclyn Diaz, U.S. ends policy of denying citizenship to children born via IVF or surrogacy, Nat. Pub. Radio (May 19, 2021, 6:54 AM), https://www.npr.org/2021/05/19/998143097/u-s-ends-policy-denying-citizenship-to-children-born-via-in-vitro-surrogacy. ↑
44. Id. ↑
45. Id. ↑
46. Id. ↑
47. Id. ↑
48. Id. ↑
49. Id. ↑
50. Id. ↑
51. Id. ↑
52. Id. ↑
53. Jaclyn Diaz, U.S. ends policy of denying citizenship to children born via IVF or surrogacy, Nat. Pub. Radio (May 19, 2021, 6:54 AM), https://www.npr.org/2021/05/19/998143097/u-s-ends-policy-denying-citizenship-to-children-born-via-in-vitro-surrogacy. ↑
54. Id. ↑
55. Id. ↑
56. Id. ↑