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Birthright Citizenship Explained

Days before Election Day 2020 in the United States, former President Donald Trump was grasping at straws as he faced a likely defeat at the polls. With little else to lose, Trump tried to revive a contentious political matter he believed would appeal to undecided voters, thus bolstering his chances of serving a second term. That matter was birthright citizenship, and Trump floated the idea of signing an executive order that would force judicial review at the Supreme Court level. This last-minute strategy fizzled. To understand how such an action could have impacted policies regarding immigration, San Diego residents need to know why the concept of birthright citizenship is so important.

Birthright Citizenship Defined

Birthright citizenship is a constitutional principle in the U.S. and various other countries. When broken down to its legal essence, birthright citizenship means a person who is born in a sovereign jurisdiction or territory thereof is effectively a citizen of that country. Surprisingly, birthright citizenship isn’t technically explained in the Constitution, but many legal scholars believe it to be protected under the 14th Amendment, which was enacted for the purpose of granting protection to emancipated slaves.

The Jus Soli Principle

The legal doctrine of birthright citizenship is known as jus soli, and in most cases, it ignores where a person’s parents are from. Most of the countries in the Americas follow jus soli, but their constitutions happen to be more explicit about it, using language along the lines of “whosoever is born here is a citizen.” The U.S. Constitution isn’t specific in this regard.

Exceptions to Jus Soli

There are some understandable exceptions to jus soli. Let’s examine a hypothetical situation in which the Dutch ambassador gives birth in her country’s embassy in the District of Columbia. American jus soli citizenship wouldn’t apply here, since the building where the baby was born actually represents a territory of the Netherlands. A baby born to an American mother in a military hospital in Baghdad has U.S. jus soli citizenship because the base represents American territory.

Arguments against Jus Soli

The legal argument against jus soli in the U.S. is invariably advanced by conservative politicians who claim there is a “birth tourism” industry consisting of foreign women who come to the U.S. solely for the purpose of getting pregnant and having American “welfare babies.” While it’s true federal agents have discovered and dismantled some birth tourism operations, they could hardly be considered to be on the scale of an industry.

Under the current U.S. administration, the chances of birthright citizenship being subjected to legal challenge are slim to none. However, birth tourism will continue to be an issue of concern. While people born in the U.S. and its territories wouldn’t face negative immigration proceedings, this may not be the case for parents and relatives who are found to have knowingly engaged in birth tourism. In the future, should the individual who was born in the U.S. choose to petition for parents or other relatives to receive immigration benefits, the case may be adjudicated under suspicion of intentional immigration fraud and possibly render applicants inadmissible and ineligible for residency status.

Families whose children are born in the United States rightly assume their children are U.S. citizens. In this volatile political climate, though, it’s understandable that many immigrant parents of American-born children are concerned about their kids’ future status as U.S. citizens. If you have concerns about a family member’s citizenship status or you’d like information on family-based immigration, San Diego residents should get in touch with the trustworthy immigration attorneys at KS Visa Law. Call 858-874-0711 to schedule an appointment.

May 2024