PART I. FOUNDATIONS OF CITIZENSHIP AND IMMIGRATION POWER IN THE UNITED STATES
1. The Concept of Citizenship
Citizenship and the Constitution
o Art. I, Sec. 8, cl.4 of the U.S. – Constitution gives Congress the authority “to establish an uniform Rule of Naturalization … throughout the U.S.”
o Congress has plenary and commercial power.
o The 14th Amendment, adopted in 1868, states : “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.”
¡ “subject to the jurisdiction of” – disputes on meaning ® no case law.
o The traditional reading of the 14th A has been interpreted to mean that all persons born on U.S. soil – regardless of the citizenship or immigration status of their parents – are automatically U.S. citizens at birth.
o The concept of birthright citizenship is known as jus soli.
2. Birthright Citizenship – Jus Soli; Jus Sanguinis & Naturalization
£ Jus Soli
Elk v. Wilkins (1884)
o An Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe and taken up his residence among the white citizens of a state, but who has NOT been naturalized or taxed or recognized as a citizen, either by the United States or by the state, is NOT a citizen of the United States, within U.S.C.A. Const. Amend. 14, § 1, which declares that “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.”
o What was the rationale of the majority in Elk v. Wilkins in holding that Indians were not citizens at birth under the Fourteenth Amendment? ® Indian tribes are alien nations ® NOT subject to the jurisdiction.
US v. Wong Kim Ark (1898)
o Plaintiff was born in United States, in 1873.
o At the time of Plaintiff’s birth, his parents were legally and permanently domiciled in the United States.
o The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.How does the Court reach such different results on similar facts? Are the holdings inconsistent?
o Holding : He is a citizen at that time Chinese were excluded.
o Comp. Indian tribes case.
“Subject to the jurisdiction of there of”
o Do you agree or disagree that the plain language of the Fourteenth Amendment was not meant to give jus soli citizenship to the children of unauthorized immigrants?
Broadness of the jus soli principle and potential amendments
o Does Congress have the powers to enact a statute providing that children born on the U.S. temporary or undocumented immigrants are not citizens at birth? ® see Art 1, Sec 8, cl. 4. Congress has plenary power. Naturalization means different from immigration.
Jus Soli Citizenship
£ Jus Sanguinis
o Unlike jus soli, birthright citizenship under jus sanguinis is NOT provided for in the Fourteenth Amendment of the Constitution.
o Authority: Title III of the INA. Pay special attention to:
¡ INA §§ 301(c), (d), (e), (g), (h) ; and
(c) born outside of the U.S. + Both parents are citizens + one has had residence in the U.S. prior to birth
(d) born outside of the U.S. + One parent is citizen who has been physically present in the U.S. for a continuous 1 year prior to birth + The other is a national, not citizen, of the U.S.
(e) born in outlying possession of the U.S. + One parent is citizen who has been physically present in the U.S. for a continuous 1 year prior to birth.
(g) born outside of the U.S. + One is alien + The other is a citizen of the U.S. who was physically present in the U.S. for a total of 5 years , at least 2 of which were after the age of 14 years old.
(h) born outside the U.S. + b/f noon May 24, 1934 + alien father + citizen mother who had resided in the U.S. prior to birth.
¡ INA § 309 (children born out of wedlock).
(a) the provisions of 301 (c), (d), (e), and (g) shall apply to children born out of wedlock if
o (1) a blood relationship between the person and the Father is established by clear and convincing evidence,
o (2) the father had the nationality the United States at the time of the person’s birth
o (3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, AND
o (4) while the person is under the age of 18 years-
¡ (A) the person is legitimated under the person’s residence or domicile
¡ (B) the father acknowledges paternity of the person in writing under oath, OR
¡ (C) the paternity of the person is established by adjudication of a competent court.
(c) A US Citizen Mother of a child out of wedlock only needs to have been physically present in the US for a continuous period of 1 year to confer jus sanguinis citizenship.
Rogers v. Bellei (1971)
o The U.S. Supreme Court held that Congress retained the power to impose a residence requirement as a condition subsequent for children born abroad to be birthright citizens under the principle of jus sanguinis.
o Note that at the time Bellei was decided, the physical presence requirement was much more stringent than the current rule (citizen parent was required to be physically present in the U.S. for 5 years between the ages of 14 and 28).
o 1. A married couple is in Ukraine. Husband was born in Poland and the wife in the Philippines, but both acquired US citizenship at birth. They are expecting a baby next month, and it will be born in Ukraine. Will the child have U.S. citizenship? ® Yes, if provided only that one of the parents had a residence in the US at some time prior thereto. §301(c)
o 2. Client was born in the U.S., but when he was 2 his father moved to Switzerland. He is now living with a Fren
ars ago, committed burglary 3 years later and was convicted of the offense a year after that. He is eligible for naturalization? ® This is about good moral character : §316 ® 101(f)
o 3. Client D was a lawful permanent resident since 1985. She volunteered for a charitable organization. The assets of the organization have been frozen by the U.S. gov’t based on a claim that some of the funds were diverted to sponsor a terrorism organization. D says that she has no knowledge of any activity. ® §313. If she is proved with respect to terrorism, she is screwed.
¡ §313(a)no person shall hereafter be naturalized as a citizen of the United States – [automatic exclusion of naturalization] (2) who is a member of or affiliated with (A) the Communist Party of the United States; (B) any other totalitarian party of the United States; (C) the Communist Political Association…
(4) who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches (A) the overthrow by force or violence or other unconstitutional means of the Government of the United States or of all forms of law…
¡ §313(c) Applicants may escape the preclusion statute more than 10 years have passed since they were members of the subversive organization.
3. Plenary Power
£ The Chinese Exclusion Laws
Congress enacted the Chinese Exclusion Laws in 1882, 1884, 1888, and 1892
These were the first federal immigration statutes that were subject to judicial review.
In the first Chinese exclusion law, passed in 1882, Congress declared that “the coming of Chinese laborers to this country endangers the good order of certain localities.”
Lawfully present Chinese arriving in the United States following a temporary departure were required to obtain a certificate from the United States government proving that they had arrived in the U.S. prior to November 1880, and were therefore admissible (i.e., not subject to the Chinese exclusion laws).
In 1884, Congress made possession of these certificates “the only evidence permissible to establish [a Chinese immigrant’s] right of re-entry.”
Because the exclusion laws were hard to enforce – you couldn’t tell whether a Chinese person was lawfully present or not just by looking at them – Congress kept amending the statutes governing the rules pertaining to Chinese immigrants to single out excludable individuals.
In 1888, Congress enacted the Scott Act, which prohibited Chinese immigrants from re-entering the United States – even with a certificate