U.S. Citizenship of Persons Born in the United States to Alien Parents
Prepared for Members and Committees of Congress
Over the last decade or so, concern about illegal immigration has sporadically led to a re-
examination of a long-established tenet of U.S. citizenship, codified in the Fourteenth
Amendment of the U.S. Constitution and §301(a) of the Immigration and Nationality Act (INA)
(8 U.S.C. §1401(a)), that a person who is born in the United States, subject to its jurisdiction, is a
citizen of the United States regardless of the race, ethnicity, or alienage of the parents. The war on
terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national captured in Afghanistan
fighting with Taliban forces, further heightened attention and interest in restricting automatic
birthright citizenship, after the revelation that Hamdi was a U.S. citizen by birth in Louisiana to
parents who were Saudi nationals in the United States on non-immigrant work visas and arguably
entitled to rights not available to foreign enemy combatants. This report traces the history of this
principle under U.S. law and discusses some of the legislation in recent Congresses intended to
The traditional English common-law followed the doctrine of jus soli, under which persons born
within the dominions of and with allegiance to the English sovereign were subjects of the
sovereign regardless of the alienage status of their parents. The exceptions to this rule are persons
born to diplomats, who are born subjects of the sovereign whom the parents represent abroad, and
persons born to citizens of a hostile occupying force, who are born subjects of the invading
sovereign. Although the states and courts in the United States apparently adopted the jus soli
doctrine, there still was confusion about whether persons born in the United States to alien
parents were U.S. citizens. This arose because citizenship by birth in the United States was not
defined in the Constitution nor in the federal statutes. Legal scholars and law makers were torn
between a “consensualist” doctrine of citizenship, by which a person and a government consent to
be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by
virtue of circumstances beyond his control, such as birth within a particular territory or birth to
parents with a particular citizenship. Additionally, African-Americans were not considered
citizens of the United States, even if they were free. Native Americans also were not considered
U.S. citizens because they were members of dependent sovereign Indian nations. The Civil Rights
Act of 1866 and the Fourteenth Amendment, ratified in 1868, extended birthright citizenship to
African-Americans, but the United States Supreme Court made clear that although U.S.-born
children of aliens were U.S. citizens regardless of the alienage and national origin of their parents,
Native Americans still were not U.S. citizens under the terms of those laws. Native Americans
were made U.S. citizens by statute.
In the 110th Congress, H.R. 133 and, in the 109th Congress, H.J.Res. 41, H.J.Res. 46, H.R. 698, §
201 of H.R. 3700, § 701 of H.R. 3938, § 322 of H.R. 4313, and title V of S. 2117 are among
current and recent bills to amend the Constitution and/or the INA to exclude from citizenship at
birth persons born in the United States whose parents are unlawfully present in the United States
or are nonimmigrant aliens; unsuccessful attempts were made to include provisions in H.R. 4437.
This report will be updated as necessary.
Introduc tion ..................................................................................................................................... 1
Jus Soli Doctrine before the Fourteenth Amendment...............................................................1
The Fourteenth Amendment and the Civil Rights Act of 1866.................................................5
United States v. Wong Kim Ark and Elk v. Wilkins.....................................................................6
Constitutional and Statutory Amendments................................................................................8
Congressional Act Without Constitutional Amendment.........................................................13
Author Contact Information..........................................................................................................16
Over the last decade or so, concern about the level of immigration, focused particularly on illegal
immigration, has sporadically led to a re-examination of a long-established tenet of U.S.
citizenship, codified in the Fourteenth Amendment of the U.S. Constitution and §301(a) of the
Immigration and Nationality Act [INA] (8 U.S.C. §1401(a)), that a person who is born in the
United States, subject to its jurisdiction, is a citizen of the United States regardless of the race,
ethnicity, or alienage of the parents. The war on terror and the case of Yaser Esam Hamdi, a U.S.-
Saudi dual national captured in Afghanistan fighting with Taliban forces, further heightened
attention and interest in restricting automatic birthright citizenship, after the revelation that
Hamdi was a U.S. citizen by birth in Louisiana to parents who were Saudi nationals in the United 1
States on nonimmigrant work visas and arguably entitled to rights not available to foreign enemy
Some proponents of immigration reform have advocated either constitutional or statutory
amendments to limit automatic citizenship upon birth in the United States so that persons born in
the United States to parents who are unlawfully present in the United States or are non-immigrant
aliens would not become U.S. citizens. This report traces the history of “automatic birthright
citizenship” under U.S. law and discusses the legislation in recent Congresses intended to alter it.
There are two basic doctrines for determining birthright citizenship. Jus soli is the principle that a
person acquires citizenship in a nation by virtue of his birth in that nation or its territorial 2
possessions. Jus sanguinis is the principle that a person acquires the citizenship of his parents, 3
“citizenship of the blood.” The English common law tradition prior to the Declaration of
Independence, which was the basis of the common law in the original thirteen colonies and which 4
was adopted by most of the states as the precedent for state common law, followed the jus soli 5
doctrine. Persons born within the dominion of the sovereign and under the protection and
ligeance of the sovereign were subjects of the sovereign and citizens of England; this included
persons born to “aliens in amity” who owed temporary allegiance to the sovereign while in his
1 Hamdi apparently returned to Saudi Arabia with his parents while he was still a toddler and did not return to the
United States until he was brought here as an enemy combatant. Brief of Amicus Curiae Claremont Institute Center for
Constitutional Jurisprudence at 2-3 and Brief of Amici Curiae the Center for American Unity et al. at 3 for Hamdi v.
Rumsfeld, 59 L. Ed. 2d 578, 124 S. Ct. 2633 (2004) (No. 03-6696).
2 Black’s Law Dictionary 775 (5th Ed. 1979); entry for “jus soli.”
3 Id.; entry at “jus sanguinis.”
4 Lynch v. Clarke, 1 Sandford Ch. 583, 646 (N.Y. 1844); 4 CHARLES GORDON, STANLEY MAILMAN & STEPHEN YALE-
LOEHR, IMMIGRATION LAW AND PROCEDURE § 92.03[b] (2005); Isidor Blum, Is Gov. George Romney Eligible to be
President? [part two], New York Law Journal, p. 1, col. 5 (October 17, 1967).
5 4 GORDON, MAILMAN & YALE-LOEHR, supra footnote 4, at § 92.03[a & b]; Jill A. Pryor, The Natural-Born Citizen
Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881,
886 & n. 24 (1988).
territory.6 The exceptions were persons born to members of a hostile occupying force or to 7
diplomats representing another sovereign. The reason was that the children of a hostile
occupying force did not owe allegiance to nor were born under the protection of the proper
sovereign of the occupied territory. The children of diplomats, although enjoying the temporary
protection of the sovereign while in his/her dominions, actually owed allegiance to and had a
claim to the protection of the sovereign whom their parents represented at the court of the
sovereign in whose dominions they were born. All civilized nations recognize and assent to the
immunity of foreign diplomats from their jurisdiction, without which a foreign ambassador might
not be able to effectively represent the sending sovereign, but it would be “inconvenient and
dangerous to society ... if [private individual aliens] did not owe temporary and local allegiance, 8
and were not amenable to the jurisdiction of the country.”
The original framers of the U.S. Constitution did not define citizenship of the United States,
although the Constitution required that a person have been a citizen of the United States for seven 9
years to be a Representative and for nine years to be a Senator, and that a person be a natural-
born citizen or a citizen at the time of the adoption of the Constitution in order to be eligible to be 10
President (and therefore, Vice-President). The Naturalization Act of 1790 and subsequent Acts
until the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment did not define 11
citizenship by birth within the United States. These naturalization acts specified that only free
white persons could be naturalized. As a result of the absence of any definition in the Constitution
or federal statutes of U.S. citizenship by birth in the United States, citizenship by birth in the 12
United States generally was construed in the context of the English common law. This provided
the frame of reference and definition of “citizenship” that the framers of the Constitution would
have understood and also provided the pre-independence precedent for state common laws. The
acquisition of citizenship by birth and by naturalization in the United States depended on state 13
laws, both statutory and common law, until the enactment of the naturalization law in 1790. The
6 United States v. Wong Kim Ark, 169 U.S. 649, 655-668 (1898); Lynch v. Clarke, 1 Sandford Ch. at 670; Calvin’s
Case, 7 Coke’s Reports 1, 8-21 (1607)(as reprinted in vol. 4 of the 1826 edition edited by John H. Thomas & John F.
7 United States v. Wong Kim Ark, 169 U.S. at 675, 682-688; Calvin’s Case, 7 Coke’s Reports at 10-11.
8 United States v. Wong Kim Ark, 169 U.S. at 683-688, citing the case of The Exchange, 7 Cranch. 116 (1812).
9 U.S. Const. art. I, §2, cl. 2 (Representatives), U.S. Const. art. I, § 3, cl. 3 (Senators).
10 U.S. Const. art. II, § 1, cl. 5.
11 Act of March 26, 1790, 1 Stat. 103; Act of January 29, 1795, 1 Stat. 414; Act of April 14, 1802, 2 Stat. 153; Act of
February 10, 1855, 10 Stat. 604.
12 Lynch v. Clarke, 1 Sandford Ch. at 646, 658; Isidor Blum, supra footnote 4, at p. 1, col. 5.
13 One should note that the determination of U.S. citizenship by naturalization also depended on state laws prior to the
enactment of the first federal naturalization act. The election of Albert Gallatin to the U.S. Senate in 1793 was
successfully challenged on the grounds that he had not been a U.S. citizen for nine years as required by the rd
Constitution. 4 ANNALS OF CONGRESS, 3 Cong. 47-55, 57-62 (Gales & Seaton 1849—there may be some difference in
the pagination between different printings of the same congressional debates) (covering period of February 20-28,
1794). He claimed that he had become a citizen of either Virginia or Massachusetts at least nine years before his
election. But a majority of the Senate, upon an examination of the Virginia and Massachusetts citizenship laws, decided
that Gallatin had not satisfied the residency of either state prior to moving to Pennsylvania, where he ultimately settled
and was elected to Congress. He had not been resident in Pennsylvania for nine years prior to election. This example
also illustrates the pre-Constitution position that U.S. citizenship could not exist without state citizenship, which some
legal scholars continued to espouse until the Civil War. Although Gallatin had resided in the United States for thirteen
years, he had not satisfied all the requirements for citizenship in the states where he had resided nine years before
election. Gallatin tried to argue, inter alia, that U.S. citizenship was not dependent on state citizenship laws which had
existed before independence because U.S. citizenship depended on allegiance to the new nation and even persons who
had been natural-born citizens of the states were not considered citizens of the United States if they had not shown
Naturalization Act of 1790, enacted pursuant to the Congress’s powers under the Constitution,14
clearly established the definition of citizenship by naturalization, but Congress’s silence on the
issue of citizenship by birth in the United States caused some confusion and disagreement as to
what the appropriate definition was. For example, some persons rejected the idea that English 15
common law provided the proper rule for citizenship by birth in the United States. And until the
Civil War, some eminent jurists and legal scholars believed that there was no real citizenship of
the United States separate from citizenship in a state; that is, a person was a citizen of a state
which was part of the Union, therefore a person was a citizen of the United States by virtue of his 16
citizenship in a state.
Although the English common law at the time of the adoption of the Constitution considered a
person born in the English dominions to alien parents to be an English citizen unless those alien
parents fit into the exceptions described above, and although American law apparently generally
accepted this position, there nevertheless appeared to be some uncertainty as to whether persons
born in the United States to alien parents were, in fact, citizens of the United States. Some
scholars ascribe this uncertainty to the desire of Americans to embrace both a “consensualist” 17
doctrine of citizenship, by which a person and a government consent to be mutually obligated,
and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances
beyond his control, such as birth within a particular territory or birth to parents with a particular 18
allegiance to the new government and nation.
14 U.S. Const. art. I, § 8, cls. 4 & 18.
15 See, e.g., Lynch v. Clarke, 1 Sandford Ch. at 657; 4 GORDON, MAILMAN & YALE-LOEHR, supra footnote 4, at §
92.03[b]. n. 9; PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE
AMERICAN POLITY, 50-54 (1985).
16 Slaughter-House Cases, 16 Wallace 36, 72 (1873); Leonard W. Levy, Kenneth L. Karst & Dennis J. Mahoney,
Citizenship (Historical Development), Encyclopedia of the American Constitution 258 (1986).
17 Cases arose in the United States through the early nineteenth century concerning the issue of citizenship of natural-
born state citizens whose allegiance to the United States was in question. Generally, such citizens had left the United
States for England or English dominions before or during the Revolutionary War and no act by them or their home state
had affirmed their allegiance to the independent state or the United States. Factors relevant to this consensual
citizenship included whether the person was born before or after July 4, 1776; whether the person left for England
before or after July 4, 1776; whether the person was a minor at the time of departure for England; whether the person
elected to affirm U.S. allegiance upon attaining majority; and whether the person was born or residing in territory
during its occupation by the British on or after July 4, 1776. For example, if a person was born a British subject, i.e.,
before July 4, 1776, and as an adult did not adhere to the independent states after July 4, 1776, he remained a British
subject. Generally, if he was born after July 4, 1776, he was a U.S. citizen, unless he was born in British-occupied
territory, left for England as a minor, and did not elect to affirm his U.S. citizenship within a reasonable time after
attaining his majority. See Inglis v. Sailor’s Snug Harbor, 28 U.S. (3 Peters) 99 (1830). But see McIlvaine v. Cox, 8
U.S. (4 Cranch) 208 (1808), where the Court held that a person who joined the British Army and left for England still
had inheritance rights because initially he had remained in New Jersey after July 4, 1776, and after New Jersey had
passed legislation declaring itself an independent and sovereign state and its residents to be citizens of the independent
state, and thus he had become a citizen of independent New Jersey. See also Shanks v. Dupont, 28 U.S. (3 Peters) 242
(1830), holding that a woman born in South Carolina before July 4, 1776, and remaining there afterward, was a citizen
of independent South Carolina and her subsequent marriage to a British soldier during the occupation of her hometown
did not change this status. However, her subsequent removal to England with her husband in 1782 rendered her a
British subject within the meaning of the treaty of 1794 which recognized inheritance rights for British subjects with
property in the United States.
18 SCHUCK & SMITH, supra footnote 15, at 42-62.
Apparently, Lynch v. Clarke, an 1844 New York case,19 was the first case to decide the issue of 20
whether the U.S.-born child of an alien was a U.S. citizen. It held that the U.S.-born child of an
Irish resident of the United States who returned to Ireland after the child’s birth and died without
ever declaring even an intent to be naturalized was a U.S. citizen. It held that the right of 21
citizenship was a national right not pertaining to the individual states; that state laws could no 2223
longer define U.S. citizenship; and that national laws instead determined citizenship. In
determining the appropriate national law, the court rejected the consensualist doctrine in favor of 24
the traditional English common-law doctrine of jus soli. It rejected the argument that the
application of the common-law doctrine was based on feudal principles inappropriate to the
United States, which had been founded on the principles of consent between the government and
the people to be governed, and found instead that the silence of the Constitution and the federal 25
statutes indicated that Congress approved the adoption of the traditional common-law position.
The court also believed that even if federal laws did not indicate acquiescence in common-law
doctrine, the common-law rule provided a well-defined, unambiguous, reliable rule without 26
confusing recourse to the status of the parents. It held that the national law defined any person
born within the dominions and allegiance of the United States as a citizen, regardless of the status 27
of the parents. Notwithstanding the general acceptance of jus soli, in the minds of many
persons, the issue of automatic citizenship upon birth in the United States to alien parents was
still not to be decided definitively for many years, particularly where the parents were of a
minority race or ethnicity.
Until the Civil Rights Act of 1866 and the Fourteenth Amendment, African-Americans were not 28
considered citizens of the United States. In the case of Dred Scott v. Sandford, the United States
Supreme Court held that African-Americans could not be citizens of the United States, even if
they were free, because they were descended from persons brought to the United States as slaves;
the terms of the Constitution demonstrated that slaves were not considered a class of persons 29
included in the political community as citizens; and the various state laws indicated that
African-Americans had not been considered to be state citizens and that it was widely permitted 30
to treat them as property at the time of the adoption of the federal Constitution. The descendants
of slaves could not have a citizenship right which their ancestors had not had upon the formation
of the Union and which no law had subsequently granted them at the time of the Dred Scott
19 1 Sandford Ch. 583
20 SCHUCK & SMITH, supra footnote 15, at 57.
21 1 Sanford Ch. at 641.
22 1 Sanford Ch. at 643-5.
24 1 Sandford Ch. at 656-663.
26 1 Sandford Ch. at 658.
27 1 Sandford Ch. at 663.
28 60 U.S. (19 How.) 393 (1856).
29 60 U.S. (19 How.) at 411.
30 60 U.S. (19 How.) at 407-416.
Although the primary aim was to secure citizenship for African-Americans, the debates on the
citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate
that they were intended to extend U.S. citizenship to all persons born in the United States and
subject to its jurisdiction regardless of race, ethnicity or alienage of the parents. The Civil Rights
Act of 1866 declared that “all persons born in the United States and not subject to any foreign 31
power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The
Fourteenth Amendment declared that “[a]ll 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 32
reside.” The Civil Rights Act of 1866 differs from the Fourteenth Amendment by using the
terms “not subject to any foreign power” and “excluding Indians not taxed.”
During the debates on the act, Senator Trumbull of Illinois, chairman of the committee that
reported the civil rights bill, moved to amend the bill so that the first sentence read, “All persons
born in the United States, and not subject to any foreign power, are hereby declared to be citizens 33
of the United States without distinction of color.” Senator Cowan of Pennsylvania, who opposed
both the Civil Rights Act of 1866 and the Fourteenth Amendment, asked “whether it will not have
the effect of naturalizing the children of Chinese and Gypsies born in this country?” Senator
Trumbull replied, “Undoubtedly.” The two disagreed as to whether, under the law in existence
prior to the enactment of the Civil Rights Act of 1866, Chinese-Americans were citizens of the
United States. Cowan raised the specter of unfettered Chinese immigration to California, resulting
effectively in something tantamount to a takeover of California by the Chinese empire, if the
proposed language were adopted. Trumbull asked Cowan whether the children born in
Pennsylvania to German parents were not U.S. citizens, to which Cowan replied that Germans
were not Chinese, Australians or Hottentots or the like. Trumbull replied that the law made no
distinction between the children of Germans and Asiatics “and the child of an Asiatic is just as
much a citizen as the child of a European.” Later in the debates, Senator Johnson of Maryland
urged Senator Trumbull to delete the phrase “without distinction of color” because it was
unnecessary since even without the phrase he understood that Trumbull’s proposed amendment
“comprehends all persons, without any reference to race or color, who may be so born.” Trumbull
felt that it was better to retain the phrase to eliminate any doubt or dispute as to the meaning of 34
There was also a debate over whether Indians should be included or excluded from the citizenship 35
provision. Trumbull believed that if the Indians were separated from their tribes and
incorporated into the mainstream community then they already were U.S. citizens under the law.
Senator Lane of Kansas disagreed and felt that a more explicit bill was needed to extend
citizenship to Indians, which he favored. Other Senators wished to exclude Indians not taxed,
which apparently was intended to exclude unassimilated Indians, who were deemed to be mostly 36
living in an uncivilized condition in their tribes. When the exclusion was adopted, Senator
31 C. 31, § 1, 14 Stat. 27.
32 Ratified July 9, 1868.
33 Cong. Globe, 39th Cong., 1st Sess. 498 (1866).
34 Cong. Globe, 39th Cong., 1st Sess. 573-574 (1866).
35 Cong. Globe, 39th Cong., 1st Sess. 498-499 (1866).
36 Cong. Globe, 39th Cong., 1st Sess. 571-573 (1866).
Henderson of Missouri objected that the citizenship of white persons did not depend on whether
or not they were taxed and that it was unfair to make such a distinction for Indians, particularly 37
since the issue of taxation was irrelevant to the issue of assimilation.
During the debates on the Fourteenth Amendment, Senator Howard of Michigan moved to amend 38
it by adding the first sentence in its present form, minus the phrase “or naturalized.” Senator
Cowan again objected to language that he felt would include races such as the Chinese and 39
prevent California from dealing with the massive Chinese immigrant population as it saw fit. He
again invoked the fear that California would be overrun by Chinese, Pennsylvania by Gypsies. He
believed that the people of different races and cultures could not mingle. Senator Conness of
California replied that he had supported the Civil Rights Act of 1866 and had no problem with
constitutionally guaranteeing the U.S.-born children of Mongolian parents civil rights and equal
protection, his support apparently influenced by his belief that the population of non-European 40
immigrants and their descendants would not increase significantly.
There was also debate as to whether Indians should be excluded from the scope of the Citizenship
Clause of the Fourteenth Amendment and whether they were excluded by the phrase “subject to 41
the jurisdiction thereof.” Apparently most of the Senators supported the idea of excluding
Indians but disagreed as to whether the phrase “excluding Indians not taxed” should be inserted
as it had been in the Civil Rights Act of 1866. Several Senators argued that “subject to the
jurisdiction” meant the full and complete jurisdiction of the United States, and the Indians had
always been considered subject to the jurisdiction of their tribes which were quasi foreign 42
nations; some also felt that the taxation requirement was problematic. Some Senators argued
that “excluding Indians not taxed” was good enough for the Civil Rights Act so it was appropriate
for the Fourteenth Amendment; they also argued that Indians were subject to U.S. jurisdiction for 43
a variety of purposes so the “subject to the jurisdiction” language was insufficiently clear.
Ultimately, the Senate rejected the insertion of “excluding Indians not taxed,” although at least
one Senator said he voted against this insertion because he favored extending citizenship to
Indians and not because he believed that the “subject to the jurisdiction language” excluded 44
Despite the clarification in the debates that race, ethnicity and alienage of parents would not
affect the right to citizenship by birth in the United States, the issue concerning the meaning of
the Civil Rights Act of 1866 and the Fourteenth Amendment was not settled until the 1898 case of
37 Cong. Globe, 39th Cong., 1st Sess. 571 (1866).
38 Cong. Globe, 39th Cong., 1st Sess. 2890 (1866).
39 Cong. Globe, 39th Cong., 1st Sess. 2890-2891 (1866).
40 Cong. Globe, 39th Cong., 1st Sess. 2891-2892 (1866).
41 Cong. Globe, 39th Cong., 1st Sess. 2890-2897 (1866).
42 Cong. Globe, 39th Cong., 1st Sess. 2890, 2893, 2895, 2897 (1866) (remarks of Senator Howard of Michigan, Senator
Trumbull of Illinois, Senator Williams of Oregon).
43 Cong. Globe, 39th Cong., 1st Sess. 2892, 2893, 2895 (1866) (remarks of Senator Doolittle of Wisconsin, Senator
Johnson of Maryland, Senator Hendricks of Indiana).
44 Cong. Globe, 39th Cong., 1st Sess. 2897 (1866) (remarks of Senator Saulsbury of Delaware).
United States v. Wong Kim Ark.45 As the debates about those laws indicate, an underlying problem
appears to have been the attitude that certain alien races and Native Americans, like the African-
Americans in Dred Scott, could not be members of the American political community because
they had not been members of the community that yielded the Declaration of Independence and
the Constitution. The United States Supreme Court discussed the congressional debates described
above, noting that although they were not admissible as evidence to control the meaning of the
Fourteenth Amendment, they were important as an indication of the contemporaneous legal
opinion of jurists and legislators and showed that Congress had explicitly considered the
application of the Fourteenth Amendment to the Chinese (and other U.S.-born children of 46
The Court traced the history of the statutory and common law regarding jus soli in England and 47
America and distinguished another case in which an alleged Chinese-American had been found
not to be a U.S. citizen, noting that the issue had been the insufficiency of proof that the claimant 48
had been born in the United States. But where birth in the United States was clear, a child of
Chinese parents was, in the Court’s opinion, definitely a citizen under the Fourteenth 49
Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law.
The Court rejected the argument that the child was born subject to the jurisdiction of the Chinese
emperor and outside the jurisdiction of the United States because his allegiance and citizenship
derived from his parents’ remaining subjects to the Chinese emperor under treaties between the 50
United States and China and the naturalization laws. It noted and rejected the Slaughter-House
Court’s inaccurate statement that the exceptions to jus soli included the children of consuls and
other aliens generally in addition to the children of ambassadorial-level diplomats and the 51
children of hostile, occupying forces. The decision alludes to a contemporaneous New Jersey
case that held that a U.S.-born child of Scottish parents domiciled but not naturalized in the
United States was born subject to the jurisdiction of the United States within the meaning of the
Fourteenth Amendment and not subject to the jurisdiction of a foreign country within the meaning 52
of the Civil Rights Act of 1866. The Court held that the Fourteenth Amendment affirmed the
traditional jus soli rule, including the exceptions of children born to foreign diplomats, to hostile
occupying forces or on foreign public ships, and added a new exception of children of Indians 53
owing direct allegiance to their tribes. It further held that the “Fourteenth Amendment ... has
conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to 54
constitute a sufficient and complete right to citizenship” and that it is “throughout affirmative
45 169 U.S. 649 (1898).
46 169 U.S. at 697-699.
47 169 U.S. at 655-675.
48 169 U.S. at 696-697.
49 169 U.S. at 705.
50 169 U.S. at 694-705.
51 169 U.S. at 675, 682-688.
52 169 U.S. at 692.
53 169 U.S. at 693.
54 169 U.S. at 703; see also Afroyim v. Rusk, 387 U.S. 253, 266-267 (1967), which noted at footnote 22 that some have
referred to this statement as a holding and others have referred to it as obiter dictum, but which deemed it entitled to
great weight regardless of whether it was dictum or a holding.
and declaratory, intended to allay doubts and settle controversies which had arisen, and not to 55
impose any new restrictions upon citizenship.”
Even after the Civil Rights Act of 1866, the Fourteenth Amendment and the Wong Kim Ark
decision secured automatic birthright citizenship for all persons born in the U.S. and subject to its
jurisdiction, Native Americans were not considered to be Fourteenth Amendment citizens because
the U.S. Supreme Court determined that they were not born “subject to the jurisdiction” of the
United States. Following earlier cases that had held that Indian tribes and their members were not
subject to the jurisdiction of the United States, and language in the Constitution and the Civil 56
Rights Act of 1866 that included only “Indians not taxed,” the Court in Elk v. Wilkins held that
Indians were not citizens of the United States unless they had been naturalized by treaty or by a
federal collective naturalization statute, or taxed or recognized as a citizen by the United States or
a state. At the time of the decision, Native Americans were not eligible to be naturalized on an
individual basis according to the usual naturalization procedures and were only naturalized by 57
treaty or statute. The Court found that Native Americans who had not been taxed or naturalized
still owed immediate allegiance to the tribe and were members of an independent political
community and thus were not subject to the jurisdiction of the United States and were not citizens 58
of the United States. The argument echoes those in the debates about the Fourteenth
Amendment. John Elk had separated from his tribe and lived “under the jurisdiction of Nebraska”
and had assimilated into mainstream society. Despite these facts, the Court held that he was not a
U.S. citizen nor could he become one in the absence of treaty or federal statutory action regarding 59
his tribe. Native Americans are still not Fourteenth Amendment citizens; they are citizens by
virtue of one of the various statutes and treaties naturalizing specific tribes, the Citizenship Act of 60
1924 (which was ambiguous regarding those born after the act), the Nationality Act of 1940
(which finally and unambiguously declared all Native Americans born in the United States to be 6162
U.S. citizens), or the Immigration and Nationality Act.
In recent Congresses there have been various proposals aimed at excluding the children of illegal
aliens and even nonimmigrant aliens from automatic birthright citizenship, in part in order to
55 169 U.S. at 688.
56 112 U.S. 94 (1884).
57 Anna Williams Shavers, A Century of Developing Citizenship Law and the Nebraska Influence: A Centennial Essay,
70 Nebraska L. Rev. 462, 487-489 (1991).
58 112 U.S. at 102, 109.
59 Under Rogers v. Bellei, 401 U.S. 815 (1971), the United States Supreme Court’s current position appears to be that
there are three types of citizenship: the two defined in the Fourteenth Amendment, birth and naturalization in the
United States when subject to the jurisdiction thereof, and non-Fourteenth Amendment statutory citizenship, e.g., the
citizenship of Native Americans, persons born abroad to U.S. citizens, and persons born in Puerto Rico, Guam and the
Virgin Islands. See J. Michael Medina, The Presidential Qualification Clause in this Bicentennial Year: The Need to
Eliminate the Natural Born Citizen Requirement, 12 Oklahoma City Univ. L. Rev. 253, 265 (1987).
60 Act of June 2, 1924, c. 233, 43 Stat. 253.
61 C. 876, § 201(b), 54 Stat. 1137, 1158.
62 C. 477, § 301(a)(2), 66 Stat. 163, 235 (1952); codified as amended at 8 U.S.C.A. § 1401(b) (Supp. 1994).
remove an incentive for aliens to enter the United States illegally or to enter legally on a 63
nonimmigrant visa, then illegally stay beyond the visa period. These proposals take the form of
amendments to the Citizenship Clause of the Fourteenth Amendment or to the Immigration and 64
Nationality Act provisions on birthright citizenship and comprise different approaches. th
Although such proposals have been introduced in the 109 Congress (see discussion and
footnotes below), none of them have progressed beyond introduction and none of the major
immigration reform bills, such as H.R. 4437, S. 2454, or S. 2611/S. 2612, include such 65
The proposals for constitutional amendments differ in defining what status a parent must have to 66
enable automatic birthright citizenship for a child born in the United States. Proposals would
variously limit jus soli citizenship under the Constitution to persons born to:
• parents both of whom are either citizens or lawful permanent residents (doesn’t 67
expressly repeal the current Citizenship Clause);
63 Aliens are seen as willing to enter the United States illegally in order to have a child here, because they realize that
when the U.S.-citizen child reaches his/her majority, he/she may bring immediate relatives over to the United States,
even if the Immigration and Naturalization Service decides to deport the parents, or they choose to leave, in the interim.
So the automatic birthright gives illegal aliens a foot in the door to the United States and its benefits. 151 Cong Rec.
E816 (daily ed. April 28, 2005) (Rep. Paul); 149 Cong. Rec. E547 (daily ed. March 21, 2003) (statement of Rep. Paul);
143 Cong. Rec. H.R. 8 (daily ed. September 16, 1997) (statements of Rep. Smith of Texas and Rep. Bilbray); 142
Cong. Rec. H2487 (daily ed. March 20, 1996) (statement of Rep. Deal); 141 Cong. Rec. E127-8 (daily ed. January 19,
1995) (statement of Rep. Beilenson); 140 Cong. Rec. E456 (daily ed. March 16, 1994) (statement of Rep. Taylor); 139
Cong. Rec. S11997 (daily ed. September 20, 1993) (statement of Sen. Reid), E 2168-2169 (daily ed. September 15,
1993) (statement of Rep. Gallegly), S10378 (daily ed. August 4, 1993) (statement of Sen. Reid), H4437 (daily ed. July
1, 1993) (statement of Rep. Gallegly), H1005 (daily ed. March 3, 1993) (statement of Rep. Gallegly), E409 (daily ed.
February 23, 1993) (statement of Rep. Beilenson); 138 Cong. Rec. E2572-3 (daily ed. September 10, 1992) (statement
of Rep. Gallegly), E1847 (daily ed. June 16, 1992) (statement of Rep. Gallegly), E441 (daily ed. February 26, 1992)
(statement of Rep. Gallegly); 137 Cong. Rec. H8180 (daily ed. October 22, 1991) (statement of Rep. Gallegly), H7788
(daily ed. October 10, 1991) (statement of Rep. Dornan).
Senator Inhofe cited the Center for Immigration Studies, CIS, a nonprofit immigration reform organization, and the
National Center for Health Statistics for the statistic that in 2002 there were about 383,000 babies born to illegal aliens,
which represented about 9.5 percent of all U.S. births in 2002. 152 Cong. Rec. S2582 (daily ed. March 30, 2006).
64 The legislative proposals discussed in this report were suggested in Schuck & Smith, supra footnote 15, at 116-140,
as a more appropriate law of citizenship. Their proposal is to exclude children of illegal and nonimmigrant aliens,
because the nation has not consented to the permanent residence of the parents. The children of legal residents, i.e.,
permanent resident aliens, would be provisional citizens at birth and until their majority. They note that the United
Kingdom, which shares common origins with our common law of citizenship, has adopted laws which do not extend
birthright citizenship to children of illegal or nonimmigrant aliens.
65 Two amendments were submitted to the House Rules Committee to be permitted as floor amendments for H.R. 4437,
but neither was included in the final rule, see H.Rept. 109-350 (2005). See Deal #40, whose summary states that it
“exercises Congress’ plenary jurisdiction over immigration and works within the Constitutional bounds established in th
the 14 Amendment, to define limits on citizenship by mandating birthright citizenship be granted only to the children
of U.S. citizens or permanent legal aliens” and Paul #24, whose summary states that it “prohibits any person born after
the date of the ratification of this article to a mother and father, neither of whom is a citizen of the U.S. nor a person
who owns permanent allegiance to the U.S., from being a citizen of the U.S. or of any State solely by reason of birth in
the U.S.” Available at http://www.rules.house.gov/109/amendsumm/109amnd_hr14437.htm. Senator Coburn submitted
an amendment, similar to the proposals described in the text for footnote 78 below, for consideration during the Senate
Judiciary Committee mark-up of Chairman Specter’s immigration reform bill, but this was not ultimately included in
the reported bill or in S. 2454 or S. 2611/S. 2612, the so-called Hegel-Martinez compromise.
66 One should note that the constitutional Citizenship Clause provides the baseline for birthright citizenship—Congress
can provide for broader bases by statute.
67 H.J.Res. 4, 105th Cong. (1997); H.J.Res. 190, 104th Cong. (1996).
• mothers who are legal residents (expressly repeals the current Citizenship 68
• mothers who are citizens or legal residents (expressly repeals the current 69
• mothers or fathers who are citizens (doesn’t expressly repeal the current 70
• mothers or fathers who are citizens or persons who owe permanent allegiance to 71
the United States (doesn’t expressly repeal the current Citizenship Clause);
• mothers or fathers who are legal residents (expressly repeals the current 72
• mothers or fathers who are citizens or lawful permanent residents (doesn’t 73
expressly repeal the current Citizenship Clause); or
• mothers or fathers who are citizens or are lawfully in the United States or have
lawful status under the immigration laws of the United States (doesn’t expressly 74
repeal the current Citizenship Clause).
Even as a baseline for defining citizenship, some of the distinctions drawn are unclear. The term
“legal resident” used in some of the proposals would appear to implicitly include citizens,
nationals, and lawful permanent residents, but it may also be interpreted to include certain
categories of nonimmigrants who typically reside in the United States for several years and other
aliens permanently residing under the color of law. Other proposals refer to citizens, but not to
nationals who are not citizens (e.g., American Samoans). One type of proposal refers to persons
who owe permanent allegiance to the United States, which is how the INA defines nationals.
Therefore, for the sake of clarity, proposed language that includes an explicit enumeration of the
applicable categories of parents—citizens, nationals, lawful permanent residents, nonimmigrants
(if any) may be preferable to language that only explicitly refers to parents who are legal residents
or to citizens without mentioning nationals. Some proposals focus on the mother as the conduit
for birthright citizenship, excluding a father who is a U.S. citizen or legal resident from being the
conduit for such citizenship. All of these proposals would only apply prospectively to those born
after the date of the ratification of an amendment by the legislatures of three-fourths of the states
within seven years of its submission for ratification and all provide that Congress shall have the
power to enforce the article by appropriate legislation.
Some of the above proposals to amend the Constitution have parallel proposals to amend the INA
to conform to the new baseline of the Citizenship Clause once it is amended, including legislation
to limit citizenship by birth in the United States to persons born to
68 H.J.Res. 357, 102nd Cong. (1992).
69 H.J.Res. 64, 104th Cong. (1995); H.J.Res. 129, 103rd Cong. (1993).
70 H.J.Res. 60, 105th Cong. (1997); H.J.Res. 88, 104th Cong. (1995); H.J.Res. 396, 103rd Cong. (1994).
71 H.J.Res. 46, 109th Cong. (2005); H.J.Res. 42, 108th Cong. (2003).
72 H.J.Res. 56, 104th Cong. (1995); H.J.Res. 117, 103rd Cong., 1st. Sess. (1993).
73 H.J.Res. 41, 109th Cong. (2005); H.J.Res. 44, 108th Cong. (2003).
74 H.J.Res. 59, 107th Cong. (2001); H.J.Res. 10, 106th Cong. (1999); H.J.Res. 26, 105th Cong. (1997); H.J.Res. 93, 104th
Cong. (1995); H.J.Res. 340, 103rd Cong. (1994).
• mothers who are legal residents75 or
• mothers who are citizens or legal residents.76
By their own terms, these types of statutory amendments would not take effect until a related
constitutional amendment had been ratified and would only apply to those born after the date of
ratification. These statutory proposals have the same problems as the parallel constitutional
One set of proposals would limit birthright citizenship in a way that its proponents believe would
not necessitate a constitutional amendment (see discussion in the following section). It essentially
would statutorily define who is born “subject to the jurisdiction” of the United States under the
Citizenship Clause notwithstanding the U.S. Supreme Court holdings in United States v. Wong
Kim Ark. These proposals variously define:
• persons, whose birth mothers are not citizens, nationals, or lawful permanent
residents of the United States and who are citizens/nationals of another country
of which a natural parent is a citizen/national, as not being born subject to the
jurisdiction of the United States within the meaning of the Fourteenth
Amendment, but rather as being born subject to the jurisdiction of the other 77
• persons, whose birth mothers are not citizens or lawful permanent residents of
the United States and who are citizens/nationals of another country of which a
natural parent is a citizen/national, as not being born subject to the jurisdiction of
the United States within the meaning of the Fourteenth Amendment, but rather as 78
being born subject to the jurisdiction of the other country;
• persons born subject to the jurisdiction of the United States as including persons
born in wedlock to a mother or father who is a U.S. citizen, a U.S. national, or a
lawful permanent resident who maintains primary residence in the United States,
or persons born out of wedlock to a mother who is a U.S. citizen, a U.S. national,
or a lawful permanent resident who maintains primary residence in the United 79
• persons born subject to the jurisdiction of the United States as including persons
born in wedlock to a mother or father who is a U.S. citizen, a U.S. national, or a
lawful permanent resident who maintains primary residence in the United States,
75 H.R. 3605, 102nd Cong. (1991).
76 H.R. 705, 104th Cong. (1995); H.R. 1191, 103rd Cong. (1993).
77 H.R. 190, 107th Cong. (2001); H.R. 319, 106th Cong. (1999); H.R. 346, 105th Cong. (1997); H.R. 375, § 301, 104th
Cong. (1995). These bills specify that the persons in question are either born citizens/nationals of another country of
which either of his/her natural parents is a citizen/national or entitled upon application to become a citizen/national of
that other country.
78 H.R. 2162, § 701, 104th Cong. (1995); H.R. 4934, § 701, 103rd Cong. (1994); H.R. 3862, § 401, 103rd Cong. (1994);
S. 1351, § 1001, 103rd Cong. (1993). These bills specify that the persons in question are either born citizens/nationals of
another country of which either of his/her natural parents is a citizen/national or entitled upon application to become a
citizen/national of that other country.
79 H.R. 3938, § 701, 109th Cong. (2005); H.R. 4313, § 322, 109th Cong. (2005); H.R. 698, 109th Cong. (2005); H.R.
1567, 108th Cong. (2003); H.R. 73, 106th Cong. (1999); H.R. 7, 105th Cong. (1997); H.R. 1363, 104th Cong. (1995). All
but the last of these defines “wedlock” as not including common-law marriage.
or persons born out of wedlock to a mother who is a U.S. citizen, a U.S. national,
or a lawful permanent resident who maintains primary residence in the United
States, or to a father who is a U.S. citizen, a U.S. national, or a lawful permanent
resident who maintains primary residence in the United States, but only if
paternity has been established by clear and convincing evidence and the father 80
has satisfied certain requirements;
• persons born subject to the jurisdiction of the United States as including persons
born in the United States to a mother or father who is a national of the United
States (this would include citizens and non-citizen nationals) or a lawful 81
permanent resident who maintains his or her residence in the United States.
The first two of these proposals would avoid the problem of rendering a person stateless by
permitting persons born to illegal alien or nonimmigrant mothers to be citizens at birth if they 82
have no viable claim to citizenship in another country. These two proposals could result in a
scenario in which a person may be born in the United States to a mother who is a nonimmigrant
or illegal alien and a father who is a U.S. citizen, national or lawful permanent resident (in or out
of wedlock) and not be born a U.S. citizen because that person has a claim to citizenship in the
mother’s country. The third proposal does not permit a person born out of wedlock to a father
who is a U.S. citizen, national or lawful permanent resident to be considered born subject to the
jurisdiction of the United States and does not provide for the acquisition of U.S. citizenship by
such a person through a U.S. citizen father. Without conforming amendments to § 309 of the INA,
this proposal would mean that persons born abroad out of wedlock to a U.S. citizen father and an
alien mother would have a process by which they could be deemed U.S. citizens at birth and,
paradoxically, persons born in the U.S. of similar parentage would not. These proposals are all
therefore arguably unconstitutional on due process/equal protection grounds as well as 83
Citizenship Clause grounds. The fourth proposal avoids such issues by providing for the
birthright citizenship of a person born out-of-wedlock to a father who is a U.S. citizen, national,
or lawful permanent resident as long as requirements like those of INA § 309 are satisfied. The
80 H.R. 133, 110th Cong. (2007). The requirements that must be satisfied by the out-of-wedlock father are the same as
the requirements that must be satisfied for transmission of citizenship to a child born abroad and out-of-wedlock to a
U.S. citizen father under INA § 309(a) (8 U.S.C. § 1409(a)).
81 S. 2117, Title V, 109th Cong. (2005).
82 International law generally views statelessness as undesirable and seeks to prevent or discourage leaving persons
unprotected by and unallied with any nation. The United States apparently is not a party to any conventions or
agreements with binding obligations to prevent statelessness. It is unclear whether such an obligation exists under
customary international law, although some authorities argue that it does, given the near-universal condemnation of
statelessness in the laws of many nations and in various international agreements. See 8 Gordon, Mailman & Yale-
Loehr, supra footnote 4, at §§ 91.01[e] and 100.02[b][v]; J.M Spectar, To Ban or Not to Ban an American
Taliban? Revocation of Citizenship & Statelessness in a Statecentric System, 39 Cal. W. L. Rev. 263, 296-301 (2003);
Christine Biancheria, Restoring the Right to Have Rights: Statelessness and Alienage Jurisdiction in Light of Abu-
zeineh V. Federal Laboratories, Inc., 11 Am. U.J. Int’l L. & Pol’y 195, 198-202 (1996); Milton C. Lorenz, Jr., Note:
Aliens—Renunciation of Nationality Leaves Individual Stateless and Excludable as Any Alien, 46 Tul. L. Rev. 984,
83 The U.S. Supreme Court has upheld the provisions for transmission of citizenship by a U.S. citizen father to a child
born out of wedlock outside the United States as consistent with constitutional equal protection despite the fact that
their requirements are more stringent than those for transmission by a U.S. citizen mother to a child born in the same
circumstances. Nguyen v. Immigration and Naturalization Service, 533 U.S. 53 (2001). However, in that case, there
was a possibility for transmission; the more stringent requirements were substantially related to the congressional
purpose of requiring a demonstrable bond between the U.S. citizen father and child. The absence of any possibility of
basing citizenship on the father’s citizenship, nationality, or resident status may be unconstitutional.
fifth proposal listed above would not raise these constitutional issues because it makes no
distinctions based on the gender of the parent.
One proposal in the 109th Congress, without statutorily defining “born subject to the jurisdiction”
of the United States, would provide that, with respect to a person born after the date of the
enactment of the proposal, the person shall not be a national or citizen at birth under section 301
of INA (8 U.S.C. § 1401) unless at least one of the parents is, at the time of birth, a citizen or 84
national of the United States or an alien lawfully admitted for permanent residence.
A final legislative proposal is sui generis; it does not purport to be a congressional interpretation
of the Citizenship Clause but is a limitation on H-visa holders and would be unconstitutional
under the Citizenship Clause. Under this proposal, children born to a parent who is an
nonimmigrant employee under § 101(a)(15)(H) of the INA would not be U.S. citizens by birth in 85
the United States unless the other parent is a U.S. citizen or lawful permanent resident.
The legislation discussed above is intended to discourage unlawful entry and presence of aliens in
the United States and the anomaly of automatically granting citizenship to persons who, despite
birth in the United States, are not raised and do not act in accordance with allegiance to the
United States. It may accomplish this but may also throw into question the ultimate status of
many born here, that is, persons whose parents are in the United States initially on temporary
visas but ultimately obtain lawful permanent status. Also, the additional record-keeping necessary
to document who becomes a citizen automatically upon birth in the United States may present
bureaucratic challenges, particularly since birth records are a matter for State laws.
As noted above, proponents of certain proposals to amend the INA argue that congressional
interpretation of the Citizenship Clause to limit automatic birthright citizenship may be
permissible without an accompanying constitutional amendment because, under § 5 of the
Fourteenth Amendment, Congress has the power to “enforce, by appropriate legislation, the
provisions of this article.” In a still evolving area of law, the United States Supreme Court has
held that Congress has some power to define the substance of the rights that are protected under
the amendment and may even, under some circumstances, legislate contrary to judicial decisions
by going beyond judicial decisions defining such rights in order to enforce the amendment.
In Katzenbach v. Morgan,86 the Court found that Congress could define the substantive scope of
equal protection for the purpose of determining whether state laws violate equal protection. The
Court rejected the dissent’s concern that Congress could legislate to dilute the equal protection
and due process decisions of the Court, saying that Congress may adopt measures only to enforce 87
Fourteenth Amendment rights, not to restrict, abrogate or dilute them. However, Congress has
84 H.R. 3700, § 201, 109th Cong. (2005).
85 H.R. 3534, § 213(b), 108th Cong. (2003).
86 384 U.S. 641, 654-656 (1966). See also, City of Richmond v. J.A. Croson Co., 109 S.Ct. 706, 717-20, 726-727
(1989); Fullilove v. Klutznick, 448 U.S. 448, 476-8, 482-4 (1980); City of Rome v. United States, 446 U.S. 156 (1980);
Oregon v. Mitchell, 400 U.S. 112 (1970); THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND
INTERPRETATION, S. Doc. No. 108-17, 2041-2047 (2002 & 2004 Supp.) (Johnny H. Killian, George A. Costello &
Kenneth R. Thomas eds.) [hereinafter CONSTITUTION ANNOTATED].
87 384 U.S. at 651, n. 10. See also Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 731-733 (1982).
passed legislation that purported to overrule the Court’s expansion of the right against self-
incrimination and the right-to-counsel and expressly relied on Katzenbach v. Morgan, although
the Court, contemporaneously with the legislation, changed course to adopt a view in alignment 88
with that of Congress. Congressional abortion opponents have tried to initiate legislation 89
restricting the right that the Court has derived from the Constitution. Other recent cases show
that the Court will not always defer to Congress’s determination as to what legislation is 90
appropriate to enforce the provisions of the Fourteenth Amendment.
Thus, there may be an issue as to whether Congress could define “subject to the jurisdiction
thereof” in a manner that would curtail a long-assumed right of persons born to aliens in the
United States to be U.S. citizens regardless of the immigration status of their parents. One could
argue that Congress has no power to define “subject to the jurisdiction” and the terms of
citizenship in a manner contrary to the Court’s understanding of the Fourteenth Amendment as
expressed in Wong Kim Ark and Elk, particularly since that understanding includes a holding that
the Fourteenth Amendment did not confer on Congress a right to restrict the effect of birth on
citizenship as declared by the Constitution. In other words, there may be a distinction between the
existence of a right under the Fourteenth Amendment (e.g., citizenship), which depends on the
text and judicial interpretation, and the implications or scope of the right, which is subject to
some degree of congressional regulation. However, since Congress has broad power to pass
necessary and proper legislation to regulate immigration and naturalization under the 91
Constitution, Art. I, § 8, cls. 4 & 18, arguably Congress has the power to define “subject to the
jurisdiction thereof” for the purpose of regulating immigration.
The federal courts arguably support an interpretation of the Constitution that would foil those
who attempt to gain an immigration advantage by breaking U.S. laws, although Wong Kim Ark
made no distinction between lawfully and unlawfully present alien parents, nor between legal
resident and nonimmigrant aliens. However, the Wong Kim Ark Court did not have to make such
distinctions, because Wong’s parents were legal resident aliens. Federal appellate courts have
upheld the refusal by the Immigration and Naturalization Service (I.N.S.) to stay the deportation
of illegal aliens merely on the grounds that they have U.S.-citizen, minor children, because to do
so would be unfairly to grant an advantage to aliens who successfully flouted U.S. immigration
laws long enough to have a child born in the United States over those aliens who followed the 92
law, and would turn the immigration statute on its head. Although the mere fact of the existence
of U.S.-citizen, minor children would not be sufficient to prevent the deportation of illegal alien
parents, extreme hardship to the children caused by the deportation of the parents is a factor to be 93
considered in the discretionary suspension of deportation. The United States Supreme Court has
88 CONSTITUTION ANNOTATED, supra footnote 86, at 2042-3, n. 1990.
89 Id. at 2044, n. 1999.
90 Id. at 2044-7.
91 Fiallo v. Bell, 430 U.S. 787, 792 (1976); Mathew v. Diaz, 426 U.S. 67 (1975).
92 See, e.g., Hernandez-Rivera v. I.N.S., 630 F.2d 1352, 1356 (9th Cir. 1980); Gonzalez-Cuevas v. I.N.S., 515 F.2d 1222,
1224 (5th Cir. 1975). See generally Annotation, Infant Citizen as Entitled to Stay of Alien Parents’ Deportation Order,
42 A.L.R. Fed. 924 (1979 & Supp. 2001), and Annotation, What Constitutes “Extreme Hardship” or “Exceptional and
Extremely Unusual Hardship,” Under § 244(a) of Immigration and Nationality Act (8 U.S.C.S. § 1254(a)), Allowing
Attorney General to Suspend Deportation of Alien and Allow Admission for Permanent Residence, 72 A.L.R. Fed. 133
§§ 7-12 (1985 & Supp. 2001).
93 Urbano de Malaluan v. I.N.S., 577 F.2d 589, 594 (9th Cir. 1978). This particular case actually held that suspension of
deportation proceedings should be reopened, and it distinguished consideration of the children’s existence from a
consideration of extreme hardship under proceedings for the suspension of deportation, because the latter proceedings
upheld the discretion of the Attorney General and the I.N.S. to define “extreme hardship” under 94
proceedings for the suspension of deportation and to deny suspension of deportation and refuse
to reopen proceedings for the suspension of deportation even if a prima facie case for suspension 95
is demonstrated. The Court held that a court could not substitute a liberal definition of “extreme
hardship” for a narrow one preferred by the Attorney General and the I.N.S., noting that
otherwise “any foreign visitor who has fertility, money, and the ability to stay out of trouble with
the police for seven years can change his status from that of tourist or student to that of permanent
resident without the inconvenience of immigration quotas. This strategy is not fair to those 96
waiting for a quota.” A U.S.-citizen child must be twenty-one years old to bring alien parents 97
into the United States as immigrants. Federal courts have found that this requirement is meant
“to prevent wholesale circumvention of the immigration laws by persons who enter the country 98
illegally and promptly have children to avoid deportation,” and does not violate equal protection
by distinguishing between U.S.-citizen children who are minors and those who have attained 99
The courts apparently have never ruled on the specific issues of whether the native-born child of
illegal aliens as opposed to the child of lawfully present aliens may be a U.S. citizen or whether
the native-born child of nonimmigrant aliens as opposed to legal resident aliens may be a U.S. 100
citizen. However, Wong Kim Ark specifically held that under the Fourteenth Amendment a
child born in the United States to parents who, at the time of his birth, were subjects of the 101
Chinese emperor, but had a “permanent domicil [sic] and residence in the United States” and
were not diplomats of the emperor, was born a U.S. citizen. The holding does not make a
distinction between illegal and legal presence in the United States, but one could argue that the
holding is limited to construing the Fourteenth Amendment in the context of parents who are
legal permanent residents. However, the Court’s own discussion of the common law doctrine of
jus soli and the Fourteenth Amendment as an affirmation of it indicates that the holding, at the
least, would not be limited to permanent legal residents as opposed to nonimmigrant, transient, 102103
legal aliens and currently accepted law would also weigh against this argument. Also, the
required a seven-year continuous presence in the United States. However, later cases, while acknowledging extreme
hardship as a statutory factor, limited review of the I.N.S. discretion to grant suspension of deportation and did not
seem to consider seven-years continuous presence to be a significant reduction of any loophole based on U.S.-citizen
children. See infra notes 94-95 and accompanying text. See also Annotation, supra footnote 92, 72 A.L.R. Fed. at 133,
§§ 7-12. The annotation lists and summarizes a number of cases which do and do not find extreme hardship, including
cases involving U.S.-citizen minor children. The specific facts in some cases resulted in a finding of extreme hardship.
94 I.N.S. v. Jong Ha Wang, 450 U.S. 139, 145 (1981).
95 I.N.S. v. Rios-Pineda, 471 U.S. 444, 446, 451 (1985).
96 450 U.S. at 145.
97 Section 201(b)(2)(A)(I) of the Immigration and Nationality Act, codified as amended at 8 U.S.C. § 1151(b)(2)(A)(I).
98 Hernandez-Rivera v. I.N.S., 630 F.2d at 1356, citing Urbano de Malaluan v. I.N.S., 577 F.2d at 594.
99 Hernandez-Rivera v. I.N.S., 630 F.2d at 1356.
100 SCHUCK & SMITH, supra footnote 15, at 117.
101 169 U.S. at 705.
102 United States v. Wong Kim Ark, 169 U.S. at 693-694. The Court also states: “The real object of the Fourteenth
Amendment of the Constitution, in qualifying the words, ‘All persons born in the United States,’ by the addition, ‘and
subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words, (besides
children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the
common law,) the two classes of cases—children born of alien enemies in hostile occupation, and children of
diplomatic representatives of a foreign State—both of which, as has already been shown, by the law of England, and by
our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions
cases involving the deportation of illegal aliens simply take for granted that their U.S.-born
children are U.S. citizens in considering whether the existence of or extreme hardship to U.S.-104
citizen, minor children should stay the deportation of the parents. This is true regardless of
whether the children were born during the period of any lawful stay by the parents, during the
period of any unlawful stay or after an I.N.S. finding of deportability of the parents. However,
some scholars argue that the Citizenship Clause of the Fourteenth Amendment should not apply
to the children of illegal aliens because the problem of illegal aliens did not exist at the time the 105
Fourteenth Amendment was considered in Congress and ratified by the states. Although the Elk
decision construed the phrase, “subject to the jurisdiction thereof,” the situation of Native
Americans is unique, so any interpretation that the U.S.-born children of illegal aliens are not
born “subject to the jurisdiction” of the United States arguably could not rely on the Elk decision.
Because of the Supreme Court interpretations of U.S. citizenship laws and constitutional
provisions, one could argue that a constitutional amendment is necessary to clarify the meaning
of “subject to the jurisdiction of the United States. On the other hand, amicus curiae (friend of the
court) briefs submitted by several interested organizations to the U.S. Supreme Court for 106
consideration during the case of Hamdi v. Rumsfeld argued, among other things, that the
Supreme Court interpretations never contemplated or intended to include the granting of
automatic citizenship by birth in the United States to persons whose parents were aliens who
entered or stayed in the United States unlawfully or who were transiently present. Most other jus
soli countries have limited citizenship by birth in their territories.
Margaret Mikyung Lee
to the fundamental rule of citizenship by birth within the country.” 169 U.S. at 683.
103 Shavers, supra footnote 57, at 489.
104 See, e.g., I.N.S. v. Rios-Pineda, 471 U.S. at 446; Braun v. I.N.S., 992 F.2d 1016, 1020 (9th Cir. 1993); Hernandez-
Rivera v. I.N.S., 630 F.2d at 1356; Wang v. I.N.S., 622 F.2d 1341, 1348 (9th Cir. 1980);Urbano de Malaluan v. I.N.S.,
577 F.2d at 594; Gonzalez-Cuevas v. I.N.S., 515 F.2d at 1224.
105 SCHUCK & SMITH, supra footnote 15, at 95-98.
106 59 L. Ed. 2d 578, 124 S. Ct. 2633 (2004). The Court itself made its decision based on the assumption that Hamdi is
a U.S. citizen. Amicus Curiae briefs addressing the interpretation of the Citizenship Clause were submitted by (1) the
Eagle Forum Education and Legal Defense Fund; (2) the Claremont Institute Center for Constitutional Jurisprudence;
and (3) the Center for American Unity, Friends of Immigration Law Enforcement, National Center on Citizenship and
Immigration, and Representatives Steve King, Dana Rohrabacher, Lamar S. Smith, Thomas G. Tancredo, Roscoe
Bartlett, Mac Collins, Joe Barton, and John J. Duncan, Jr.