DONALD Trump has often stated he wants to end “birthright citizenship” for children born in the U.S. to undocumented parents. He is obviously against “birth tourism,” where pregnant women, about to give birth, enter the U.S. solely for their child to be born in the U.S. and therefore be considered a U.S. citizen. He also opposes undocumented immigrants coming across the border (or overstaying their visas) and giving birth, making their children automatic U.S. citizens.
There have been millions of children born in the U.S. to undocumented immigrants, who have long been considered U.S. citizens. Many of those children have even gone on to perhaps petition their parents when they reached 21 years of age.
But what is birthright citizenship, and what is the argument for precluding children of undocumented immigrants from being considered U.S. citizens even if born within the U.S.?
We start with the 14th Amendment to the U.S. Constitution, which provides the foundation for birthright citizenship: “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.” (Emphasis added)
The key phrase in the 14th amendment is that persons born in the U.S are considered U.S. citizens only if they are “subject to the jurisdiction” of the U.S. If a person is not subject to U.S. jurisdiction, they should not be considered a U.S. citizen at birth.
The phrase “subject to the jurisdiction” of the U.S. has always been interpreted to pertain to citizenship claims by the children of diplomats, ambassadors, and hostile combatants.
For example, ambassadors and other diplomats enjoy diplomatic “immunity” while in the U.S., and are therefore not subject to U.S. jurisdiction. If their children are born in the U.S., they are not considered automatic U.S. citizens.
The argument goes that if a person is out of status, or owes allegiance to another country, they are not subject to U.S. jurisdiction. Therefore, if their children are born in the U.S., the children are not birthright citizens.
However, I do not believe Trump would be successful in attempting to end birthright citizenship. A constitutional amendment to the 14th Amendment is remote. If he tries an executive order, Biden would immediately rescind it.
In addition, the U.S. Supreme Court has a history of deciding cases upholding birthright citizenship. As early as 1804, the U.S. Supreme Court decided a case, where they held that a person born in the U.S. was a U.S. citizen, even if the person later on lived most of his life outside the U.S. Birth in the U.S. was enough to convey citizenship.
In conclusion, unless there is a constitutional amendment to the 14th Amendment, I do not believe birthright citizenship will change. If a child is born in the U.S., and their parents are not diplomats, the child will be considered a U.S. citizen at birth. Once they reach 21 years of age, they could petition their parents. However, whether their parents will be eligible to adjust status (apply for a green card) in the U.S. may be a different issue.
Being out of status, the parents’ manner of entry into the U.S. and their immigration history could affect the child’s ability to petition their parents.
If you have a U.S. born child over 21 years of age, and are considering having that child petition you, I would recommend that you consult with an attorney who can evaluate your situation, including your immigration history and status, to determine eligibility and the best course of action for you to legalize your status.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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