Birthright Citizenship

The Importance of Birthright Citizenship

The Importance of Birthright Citizenship

Birthright citizenship is the basis of citizenship for natural-born American citizens. It’s so simple that it is easy to take the process for granted. When a person is born on U.S. soil, they are provided with an original birth certificate. That birth certificate is a literal “golden ticket” that will be used throughout a person’s lifetime to prove citizenship. Because of this, birthright citizenship is of critical importance to U.S. immigration structure.

Birthright citizenship is simple, effective, and costs little regarding government oversight and overhead. Recently, though, President Donald Trump has challenged the constitutional right. This is because under the Constitution, it does not matter if someone’s parents are citizens – if they are born in the U.S., they automatically receive citizenship rights. In fall 2018, the president even threatened to utilize an executive order to eradicate birthright citizenship. This action was quickly denied and starkly criticized by the president’s colleagues and political opponents. It appears clear that birthright citizenship is safe from removal, at least for the time being.

This article aims to identify some basic information about birthright citizenship, including:

  • Who receives it;
  • Where it comes from;
  • Why it benefits the U.S. and its citizens; and
  • What could happen should the right be removed.

Basic Facts

Birthright citizenship is simple. Also known as jus soli, or “right to the soil,” birthright citizenship allows any person born within the United States to receive automatic citizenship. Contrary to popular belief, military bases do not constitute U.S. soil for citizenship purposes, and citizenship for a child born in this way would be through parentage.

Other Countries Also Have Birthright Citizenship

President Donald Trump controversially stated in fall 2018 that the United States is “the only country in the world where a person comes and has a baby and the baby is essentially a citizen….with all of those benefits.”[1]

Contrary to the president’s statement, over 30 countries do in fact utilize birthright citizenship rights. This is especially true in North, Central, and South America, where 85% of nations provide the right.[2] Countries found on this list include our neighbors, Canada and Mexico, as well as Brazil, Argentina, and Nicaragua, to name a few. In fact, only five nations in the entirety of the Americas do NOT provide jus soli citizenship to children born within their borders.[3] You can find the entire list here.

It is of note that countries in the European Union do not have birthright citizenship. According to The Atlantic, Ireland was the last country to abolish this right in 2005 in response to a controversial birth tourism case. In Ireland, the change was made via referendum, which is not possible in the U.S. based on our governmental procedures. In order to abolish birthright citizenship in America, there is a long and complicated process (as it should be for any permanent adjustment to the Constitution).

A Constitutional Right

The fourteenth amendment to the United States Constitution establishes jus soli. Written nearly 150 years ago, the amendment plainly states “any person born or naturalized in the United States…is a citizen of the United States and of the State wherein they reside.” It is very difficult to alter or amend the Constitution, and with good reason, and such a right has remained in effect for many years with few true legal challenges. Once of those challenges is discussed below.

United States v. Wong Kim Ark

Such verbiage did in fact see challenges in the past. The Supreme Court considered United States v. Wong Kim Ark in 1898. Wong Kim Ark was a naturally-born citizen of California whose parents were natives of China. When Wong Kim Ark came back to the U.S. after a visit to China, he was denied entry, with the reasoning that he was not a U.S. citizen.

The Supreme Court heard the case and ruled in favor of Wong Kim Ark, protecting birthright citizenship for children of immigrants across America. On the decision, the Supreme Court stated “citizenship by birth is established by the mere fact of birth under the circumstances defined by the Constitution.” Thus, since the Constitution states “any person born…in the United States,” jus soli rights are conferred on anyone, no matter their parentage, station, or class.

Benefits of Birthright Citizenship

There are numerous benefits for governments that utilize jus soli. As the American Immigration Council (AIC) argues, the system is simple and easy, allowing millions of Americans to prove their citizenship with a birth certificate. Without such a process, every single child born within the country would need to prove citizenship via some other mechanism. American law does not have any other simple way to do so, so birthright citizenship prevents addition work and headaches for American parents across the nation.

Dangers of Repeal of Removal

The current system may not be perfect, but the consequences of changing it could be disastrous, expensive, and counter-productive. Other processes of establishing citizenship, such as derivative citizenship, are both expensive and subject to governmental error. On a mass scale as would be required without jus soli, errors would likely abound and cause frustration and delays for people who previously thought their citizenship easily provable.

The AIC also highlights that the government would have to allocate significant funds to the process, should birthright citizenship disappear. It would be an unnecessary cost that would take money from other worthy initiatives and necessities. And again, when government review processes are involved, there are the possibilities for significant backlogs, errors, and processing issues. For example, asylum proceedings are experiencing massive backlogs of hundreds of thousands of cases, an issue the USCIS is attempting to correct. The same could happen with derivative citizenship processing and applications.

Conclusions

In conclusion, birthright citizenship is a resolute right unlikely to disappear any time soon. First, it provides numerous clerical, monetary, and procedural benefits for Americans and the federal government. Second, the Supreme Court already reviewed and upheld the Constitutional right of jus soli during United States v. Wong Kim Ark in 1898. This provides important precedent for right to U.S. citizenship by birth. Finally, the process required to alter the Constitution is arduous and full of checks and balances. Because of this, it’s unlikely that any such changes will occur, especially with the results of 2018 midterm elections.

Contact an Expert Immigration Attorney

The current U.S. constitution protects all people born within the country – naming them Americans via birthright. If you have any questions or concerns about this right, you should consult an immigration attorney. They possess the skills and training necessary to properly guide you and discuss nuanced legal and government issues.

The lawyers at Davis & Associates continually follow current events in the United States and abroad in order to better serve you. Whatever your immigration need, we are ready and willing to help. Schedule a free initial consultation today to discuss your specific immigration question or case with one of our expert attorneys. You’ll leave empowered with knowledge and a path forward.

Sources

[1] Serhan, Y., and Friedman, U. (2018, October 31). America Isn’t the “Only Country” with Birthright Citizenship. The Atlantic.Retrieved from https://www.theatlantic.com

[2] Culliton-Gonzalez, K. (2012). Born in the Americas: Birthright Citizenship and Human Rights. Harvard Human Rights Journal. Volume 25.

[3] Culliton-Gonzalez, K. (2012).