Whatever the immigration status of an alien is so long as they are residing or simply physically present in the United States, a child born in the U.S. is a citizen. The U.S. Constitution bestows citizenship based on place of birth (‘jus soli’ or ‘law of the soil’). Other countries which were or are highly influenced by the earlier French Civil Code (like the Philippines) purely subscribe to ‘jus sanguinis’ or ‘law of the bloodline’, i.e.,citizenship transmitted thru blood relationship. Therefore, a child born in the Philippines of non-Filipino parentage does not automatically become a Filipino citizen. One of the parents must be Filipino to transmit Filipino citizenship. Not of common knowledge is the fact that ‘jus sanguinis’ is likewise recognized as a means of acquiring citizenship by birth in the U.S. Specific rules are provided solely by Federal statutes and are complicated.
Is a child born to U.S. citizen parent/s outside of the territorial jurisdiction of the U.S. and all of its outlying possessions automatically a U.S. citizen? Not necessarily. Federal laws must be checked whether U.S. citizenship can be transmitted from parent/s to child. The applicable statutory provisions and conditions that existed at the time of the person’s birth is relevant, as the laws on transmitting citizenship based on ‘jus sanguinis’ have evolved through the years. The two more basic and controlling components that a consular officer needs to look into in determining whether citizenship has been transmitted are: (1) whether ‘blood relations’ exist between the child and the U.S. citizen-parent; and, (2) whether said U.S. citizen parent/s has or have complied with the ‘residency’ or ‘physical presence’ requirement in the United States for a number of years. In order to establish “blood relations”, the mere fact of birth to said U.S. citizen parent is not enough; acknowledgement of parent-child relationship is equally important. One common hindrance to the ability to transmit U.S. citizenship is proving “residency” or “physical presence” in the United States by the U.S. citizen parent. Before U.S. citizenship can be transmitted and depending on whether the parent is the mother or the father, the number of years of residency or physical presence in the U.S. for either, must be established. Proving “residence” or “physical presence” can be contentious and controversial.. Although the laws have on occasion defined what constitutes “residency” it has not provided what should be considered as “physical presence”. The difference between the two concepts is significant. In many instances, the degree of proof that should be adduced will be pivotal in deciding whether a person should be removed from the United States due to the commission of an offense/s which can result in deportation, if undocumented or a green card holder, depending on the circumstances of the case. However, if you have been a U.S. citizen since birth, the removal proeedings should not have been filed in the first place.
After 1952, the legal trend has shifted to requiring the parent’s “physical presence” in the U.S. rather than “residency”. ‘Residence’ connotes a more permanent place of abode; meaning where one lives in a place that is ‘fixed’ while ‘physical presence’ does not necessarily require one to have a ‘fixed place or home’ and still have actual physical presence in the U.S. You can be transient but still be considered to have actual physical presence in the US. The latter is less stringent to establish. Does this mean US immigration policy is in sync with the real facts of globalization?
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Maria Rita Reyes-Stuby is a licensed attorney in Michigan. She is a graduate of the University of the Philippines College of Law. She specializes in immigration and practices in Las Vegas, Michigan, California and other states. Bernadette Bretana, a graduate of the Ateneo Law School and Ms. Stuby are licensed attorneys in the Philippines. Please call @702-403-4704 or email her at [email protected] or go to www.mrstubylaw.com for any questions on this article.
