Do Children Of Illegal Immigrants Automatically Become U.S. Citizens If They Are Born In The United States?
If you are in a hurry, the answer is: yes.
If you are interested and have two more minutes, please read on for the details.
Federal Law Grants “Birthright Citizenship”
United States citizenship is determined by U.S. federal law. Specifically, the Fourteenth Amendment to the Constitution, which was passed in 1866, begins this way:
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.
That seems pretty straightforward, right? All persons born in the United States are citizens of the United States.
This is usually called “birthright citizenship.”
But wait, there is some additional language about the person also having to be “subject to the jurisdiction” of the United States. So, what does that mean?
The Fourteenth Amendment, itself, does not answer the question. When the Supreme Court first looked at the birthright clause, in the 1884 case of Elk v. Wilkins, 112 U.S. 94 (1884), it held that it did not apply to American Indians. The court’s majority held that the children of Native Americans were not “subject to the jurisdiction” of the United States, comparing them to the children born in the U.S. to foreign ambassadors.
However, just 14 years after the Elk case, the Supreme Court changed its interpretation of the Fourteenth Amendment. In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Court ruled that a person who was born in the United States of parents who, at the time of his birth, were subjects of a foreign state did become a citizen of the United States by virtue of the birthright clause.
(Interestingly, the Court did not overturn the specific holding of the Elk case regarding Native Americans. They would not be granted birthright citizenship until 1924!)
Ever since the Wong Kim Ark case, the Fourteenth Amendment has generally been interpreted to grant citizenship to all U.S.-born children of aliens, legal or otherwise.
Some contend that the birthright citizenship clause was never intended to apply to the children of illegal immigrants, and bills have been introduced in the U.S. Congress which provide that children born in the United States to illegal aliens are not citizens. At this time, experts say there is very little chance that these bills will pass. Even if one did, the statute would be challenged on the ground that it amended the Fourteenth Amendment, something that could only be done through another Constitutional Amendment approved by two-thirds of both Houses of Congress and three-fourths of the states, a virtual impossibility.
How Common Is Birthright Citizenship Around The World?
According to Wikipedia, Canada and the United States are the only two advanced economies (as defined by the International Monetary Fund) which observe unconditional birthright citizenship. Since 2004, no European country has granted citizenship based on birthright. And a 2010 study found that only 30 of the world’s 194 countries grant citizenship at birth to the children of illegal immigrants.
Most countries grant citizenship to children based on the citizenship of their parents, not on their place of birth.
Click here to return to the Law Talk page or here to go to our home page.
**These questions and answers are designed to provide helpful information that can be read quickly. They are neither a full explanation of the subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.