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Immigration Law
Wayne State University Law School
Weinberg, Jonathan T.

FALL 2016
Reasons for domestic closure: power to exclude; modern idea of nation-state; legitimacy (cannot claim legitimacy as governing on behalf of a particular nation w/o having a rule saying what that nation is); loyalty/security; protect resource distribution/fiscal & occupational competition interest
Citizenship is internally inclusive and externally exclusive.
Modern state is more than a territorial organization… it is a membership organization, an association of citizens… citizenship is a salient social and cultural fact.
Citizenship is both an instrument (a pre-req for the enjoyment of certain rights) and an object of closure (a status to which access is restricted).
Citizenship is globally inclusive, it is also, locally exclusive à every state limits access to its citizenship.
“National” of the US: Not US citizens, but they are inhabitants or have relations to outlying possession of US.
Access to Citizenship:
: happens at birthàpresumption of membership if born here; no period of uncertainty; administrative convenience.
Naturalization: citizenship acquired later in life via conditions set by the nation-state
Access restricted by rules of immigration as naturalization requires period of instate residency.
2 basic principles for acquisition of nationality at birth
jus sanguinis – right of blood – irrespective of the place of birth.
US has adopted this approach to transmitting citizenship at birth – As a matter of birthright, the Constitution says that if you are born in the US you are a US citizen, subject to your jurisdiction.
jus soli – right of land or ground – conferral of nationality based on birth within the national territory – Anglo-American nationality law is based on this (mandated by the 14th A.)
“All persons born or naturalized in the US, and subject to the jurisdiction thereof, are citizens of the US and the State in which they reside.”
AND “any person” in US (not just “citizens”) is entitled to DP and equal protection of law (elsewhere in amendment)
International law and practice generally disfavor dual citizenship.
Dual citizenship raises administrative concerns and concerns for states regarding diplomatic protection, military service, and voting rights.
There is also major concern of loyalty à war loyalty and political loyalty.
Nevertheless, the trend for the past 50 years has been countries changing their laws so that it is easier to have dual citizenship.
In US, you can get plural citizenship:
Birth in US to immigrant parents à Country A citizen moves to US and has a child, if A has jus sanguinis then child gains US citizenship with birth on US land and A citizenship through parent. à German and British citizens have child in US, thus, child is born with 3 nationalities.
Birth outside US to one parent who is US citizen and another who is a foreigner à Citizen of US marries citizen of A and has child in A.   If US citizen kept necessary ties with US for transmission of citizenship jus sanguinis, child is US and A citizen.
Naturalization with a renunciation requirement, but renunciation not recognized by country of origin à Canadian naturalizes to US, and Canada does not see citizen as losing its citizenship to US, then, unless dual citizen contacts Canada, he/she has dual citizenship (Aaron).
Naturalization, loss of citizenship, and resumption of citizenship à Australia lets you apply to resume citizenship without losing new US citizenship unless person expresses intent to do so.
Must keep in mind that the world is increasingly transnational (= unitary citizenship, why need more than that, you can do business everywhere, communicate, travel…).
This can be a good thing = making social and commercial ties between nations deeper and stronger, opening up new markets, and fostering appreciation of cultural diversity.
And, it can be negative because unitary citizenship can serve as a brake on transnational developments that undermine the loyalty and commitment needed for the healthy functioning of a poly-ethnic state.
Form of Birthright Citizenship… children do not have to naturalize because they are born as citizens.Legislation was created for situations like children born abroad to American parents.
INA § 301—Nationals and US Citizens (USCs) at birth. Page 457 supp.
Rules are NOT retroactive: The law at the TIME OF BIRTH is the one that governs
So, you must check carefully the precise requirements at the time of birth AND see whether there are any requirements for later residence in the US have been fulfilled.
And, persons who had already lost their citizenship under the previous residency requirements REMAIN denationalized, AND those who did not acquire citizenship under the rules extant on the date of birth usually cannot benefit from later statutory liberalization.
Congress goal has always been to have citizens that have close contact with actual life in the US for generations.
For children born outside of the US territory (because if born in US territory, gain citizenship through jus sanguinis AND jus soli):
(c) both parents are USCs—then, child acquires citizenship at birth BUT one parent must have had a residence in US prior to birth. Residency means the place of general abode;
(d) One USC parent, one National parent—­USC parent has been in US continuously for one year prior to birth.
(g) One alien parent (noncitizen), one USC parent— In order for child to be born USC, then USC parent must have been physically present in US for a total of five years before the birth, including at least two years after the age of 14. (309(g)).
INA § 308—Nationals of US at birth (page 461 Supp)
INA § 309—Child born out of wedlock (page 467 supp)
If born to a USC or national father outside US: 309(a) affirmative stpes Clear and Convincing evidence of blood relationship, father had US nationality at time of child birth, father agrees in writing to provide financial support until child is 18, & while under 18 the child has been legitimated under law, the father acknowledge paternity in writing under oath or the paternity is established by court.  The father must meet the residency requirements in 301;
If born to a USC or national mother outside US: 309(c) Mother had to be physically present in US (or outlying possessions) for period of one year; be a US national at time of child’s birth.
Sometimes § 309 is better route if it will be impossible to meet residency requirements of §§ 301, 303 (so… don’t get married)
INA § 101(a)(33)—Residency: the place of general abode; the place of general abode of a person means his principle, actual dwelling place in fact, without regard to intent. (page 35 supp)
SUM – Basic rule of the statutes: you need to reach the 301(g) requirements, but if you are not married, you also need to meet the 309 requirements connecting the father to the child; but that is only if the father is the U.S. citizen
Nguyen v. INS (page 44) SC, 2001 – Gender Discrimination: P is born in Saigon to USC dad and alien mother.  P travels to US with dad.  At 22, he tries to prove citizenship to prevent deportation after he commits a crime but he cannot fulfill the requirements of 309(a)(4), which must be completed before ago 18. If he had been born to USC mother, no affirmative acts would have been required other than continuous presence (1 year).
This is a suit against the §309 requirements for father of child without marriage.
does 309(a)(4) violate equal protection?—no!
establishing paternity is substantially related to government interests in order to establish relationship with US C parent and thus with the US.
Government must have important objectives in order to prevail the standard that applies to equal protection challenges based on gender discrimination/means chosen by Congress m

“jurisdiction requirement” in 14th A. shows that framers had political limit (mutual consent to political membership) on who gained citizenship by birth à “in this way, even birthright citizenship’s inherently ascriptive nature flowed from consensualist commitments. (pp. 65-66)
jus soli = incentive for illegal migration
This theory does not go against C. à “they” migrated here knowing they were defying American law.
Beyond textual arguments… “it is simply morally perverse to reward law-breaking by conferring the valued status of citizenship”
Statement of Prof. Neuman, 1995 (page 85)
Argues against “Citizenship Without Consent”
Framers made 14th as it is well-established because they were trying to rid of the system they had just overthrown – a system founded on denial of political membership à clause was created to prevent that from happening!
But, jus soli does not protect children born to ambassadors of foreign nations (entered under government from another country), American Indians born within their own organized political communities…
Nothing in language that requires parents to be permanent residents
Children born in US automatically have no immunity from US law and are fully subject to its JR… isn’t this point?
UK and Canada follow this.
Unconstitutional to change constitutional statutes.
Martin, Membership and Consent: Abstract or Organic? Page 88
Also disagrees with “Citizenship Without Consent”
Jus soli, as it is, prevents a person from living all their life somewhere but feeling rejected, which can lead to a resistance to identify with the country they live and were born
Problems in the US are at least dealt with within the American polity by Americans acting as Americans.
Europe has proven the problem of what “Citizenship without Consent” presents to do
A secure citizenship status forms a basic foundation for the shaping of identity and involvement in the polity (particularly for dual citizens who choose to stay in US… they would have no choice the other way)
“ascription” provides an anchor, while, “consent” can be discarded or taken up
Epps, The Citizenship Clause: A Legislative History, 2010
Examination of 1866 Senate debates, re: the Citizenship Clause of 14th A.
Argues that Senators distinguished between legal statuses of Indians – some living in towns and villages who “subject to JR” referred to AND those settled on reservations.
Illegal parents do not retain rights… they are still deported and do not confer immigration benefits until child is 21.
There has been proposals to also expand citizenship acquisition rules… not just limit them!
Towards Convergence? Page 93
Line between jus soli and jus sanguinis states is blurring.
Historically jus soli states are cutting back a bit, limiting jus soli citizenship to the children of lawfully residing citizens.
On other hand, some historically jus sanguinis states have begun recognition of the citizenship of 3rd or long-residing 2nd-generation immigrants.
hese developments suggest that perhaps a unified theory of birthright citizenship could be developed by focusing on generations rather than descent or residence.