“Anchor Babies”, the 14th Amendment, and citizenship.
Donald Trump has challenged the policy of awarding citizenship to babies born in the U.S. to an illegal alien. Here’s a quick look at the issues. As Immigration lawyers, we deal with applications for citizenship (or naturalization) frequently, in a variety of circumstances. It is interesting to see the difference in the treatment of babies accorded U.S. citizen by blood versus by birth on U.S. soil.
Currently, the process by which a person born in the U.S. can apply to become a citizen is by filing an application for certificate of citizenship, form N-600, with U.S. CIS, or by filing an application for a passport with the Dept. of State. See http://www.uscis.gov/n-600
RIGHT TO CITIZENSHIP BY BIRTH?
As a side note, the instructions section of the N-600 application provides a useful glimpse into the complex configuration of rules involved in citizenship determinations, and thus a good starting point to begin the debate over the right to citizenship by birth to U.S. Citizen(s) or by birth on U.S. soil. Questions to consider are: Why are the rules for children born abroad to U.S. citizen parents so demanding, in terms of residency requirements in the U.S. by the parent(s), but not for a child born in the U.S. to an illegal alien.
For U.S. citizen biological parents, birth of a child abroad requires the parents to prove they have resided in the U.S. prior to the birth. Section 322 of the Immigration and Nationality Act provides the rules for whether a child born to parents, one or both being U.S.C.s, is eligible for citizenship. A child born to one U.S. citizen parents must prove at least 5 years of residency in the U.S. at least two of which were after age 14. The residency requirement is certainly a jurisdiction requirement. Birth right citizenship is not afforded to children of parents who have not maintained ties to the U.S..
The current question which most legal scholars say remains untested by the Supreme Court is whether a jurisdictional requirement is or should be required for births in the U.S. to illegal aliens with little or no ties to the U.S.. What is the meaning of the section of the 14th amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
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