A Curmudgeon's Notebook: Birthright Citizenship — Should birth in the USA grant citizenship?

This was originally posted on 2011 January 06 on a previous blog. It has been edited and expanded with this post.

2011 January 06
Click History for a list of changes and updates.

The United States is one of only a few countries that grant citizenship to those born in this country. But even the USA has an exception for children whose parents are diplomats. The basis for the exception is that the diplomats and related foreign government staff have allegiance to their country and not to the United States.

The continuation of this post describes a number of examples that appear to be inconsistent with the birthright citizenship currently granted to any child born in the USA. A comparison to the Birthright Citizenship Act of 2011 is also provided.

Don Nordeen
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Birthright Citizenship — Should birth in the USA grant citizenship? (continued)

Introduction
Allegiance is a major factor in citizenship. From Wikipedia, "The United States Oath of Allegiance (officially referred to as the "Oath of Allegiance," 8 C.F.R. Part 337 (2008)) is an oath that must be taken by all immigrants who wish to become United States citizens. The first officially recorded Oaths of Allegiance were made on May 30th, 1778 at Valley Forge, during the Revolutionary War.
The current oath is:

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."" Reference: Oath of Allegiance for Naturalized Citizens, Citizenship and Immigration Services, U.S. Department of Homeland Security, retrieved 2010-06-30.

Also from Wikipedia, "Birthright citizenship in the United States refers to a person's acquisition of United States citizenship by virtue of the circumstances of his or her birth. It contrasts with citizenship acquired in other ways, for example by naturalization later in life. Birthright citizenship may be conferred by jus soli [acquired by location of birth] or jus sanguinis [acquired from one's parents]. Under United States law, any person born within the United States (including the territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands) and subject to its jurisdiction is automatically granted U.S. citizenship, as are many (though not all) children born to American citizens overseas."

Consider Examples
The situations of interest are those in which neither parent is a USA citizen.

Status of Parent(s)	Description	Allegiance (strongly related to "subject to its jurisdiction")	Should Citizenship be Granted?
Considerations	Description of the factors affecting citizenship of the child	Allegiance has been and is a major factor in determining citizenship (See Oath of Citizenship above.)	Yes or No
Diplomat and Embassy Staff	Citizens and agents of a foreign government lawfully in the USA	To the native country	No
Foreign Visitor	Alien lawfully in the USA for vacation or visit	To the native country	No
Foreign visitor	Person in the USA for the purpose of giving birth in the USA	To the native country	No
Student	Alien lawfully in the USA with a student visa	To the native country	No
Employee of Foreign Company	Alien lawfully in the USA with a work visa	To the native country	No
Person in USA illegally	Illegal entry and without documentation	To the native country	No
Legal Immigrant	Person lawfully in the USA by legal immigration, but without application to seek citizenship	Unknown	No
Legal Immigrant	Person lawfully in the USA by legal immigration, and with application to seek citizenship	Allegiance is uncertain until citizenship of one of the parents is granted.	Citizenship of child follows citizenship of parent(s)
Guest Worker	Person lawfully in the USA with temporary visa for purpose of guest worker with date of expiration.	To the native country	No
Medical Emergency	Person in USA because of circumstances related to a medical emergency and USA hospital being closest capability facility	To the native country	No
Serving in USA Armed Forces	Person lawfully enlisted in the US armed forces and complies with all requirements for such enlistments.	Enlistment requires allegiance to the USA	Yes, when any other citizenship requirements are met
Pregnant woman illegally entered US for purpose of giving birth in USA	Many different circumstances could occur including the extreme case of giving birth without medical care in the desert	To the native country	No
Status	Description	Allegiance	Citizenship?

The examples in the above table have been selected with neither parent a USA citizen, and illustrate the complexities in whether or not a child born in the USA should be a USA citizen.
The United States is one of a minority of countries that grant birthright citizenship (See jus soli.). "Jus soli is observed in 16% of the world, the United States being the largest practitioner. Of the developed nations, only Canada and the United States provide jus soli." This Wikipedia website also lists countries that have recently changed their citizenship requirements.
Except for "Diplomat and embassy staff," children born in the USA are granted citizenship. This then further complicates the obligation of a sovereign country to control immigration.

Excerpt from H.R.140 -- Birthright Citizenship Act of 2011

`(b) Definition- Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered `subject to the jurisdiction' of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is--

`(1) a citizen or national of the United States;

`(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or

`(3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).'.

Note that the requirements in H.R. 140 are consistent with the information in the fourth column of the table above.

History: Changes are usually identified in the text with the date which facilitates searching by date. Edits are usually noted by add and ~~delete~~ changes.

2012 Mar 15 — Edited, expanded and posted to this weblog.
2011 Jan 06 — Initial Post

Links: Birthright Citizenship — Should birth in the USA grant citizenship? at [http://curntbk.blogspot.com/2011/01/birthright-citizenship-should-birth-in_06.html]

A Curmudgeon's Notebook

January 6, 2011

Birthright Citizenship — Should birth in the USA grant citizenship?

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