Citizenship
- Citizenship
Acquisition of Citizenship – Jus Soli and Jus Sanguinus INA § 301
Jus Soli: conferral of nationality based on birth w/in territory
Everyone born in the U.S. is a U.S. citizen, thanks to the 14th amendment.
Immigration policy cannot get around this. (Wong Kim Ark)
Pros: admin convenience; egalitarian; inclusive; most inclusive rule
Cons: arbitrary (person who comes at 1 day-old); gives bad incentive
Jus Sanguinus: by blood, parentage
Applies to kids born abroad, limited only by parental US residence
No parental residence, no passing of citizenship.
Not in constitution; rules in INA 301 and other sections.
These rules assumed marriage.
“Subject to US Jurisdiction”
Elk v. Wilkins: “under jurisdiction thereof” used to exclude Native Americans. Harsh read of this clause of 14(1); Elk wasn’t completely subject to US jurisdiction. Statutes later resolved this problem for Native Americans.
Wong Kim Ark: Broad read of 14A, conferring citizenship to kids of Chinese nationals. Purpose of 14A to include, not exclude. Jurisdiction Clause only meant to exclude kids of foreign enemies in hostile occupation and of foreign diplomats, traditionally excluded under jus soli rules.
Kids of Unauthorized Migrants, “Citizenship w/out Consent”
Pushing idea of mutual consent. If government hasn’t consented to an individual’s entry than government did not consent to child’s entry.
Critique: Consent is about individual’s consent, not the government’s. Concept of consent too demanding. Concept of jurisdiction way too demanding. People are subject to the government’s jurisdiction. No security if you’re only subject when government says you are.
Jus Sanguinus in the US
Jus soli not enough. Congress allows citizenship to be transmitted to kids born to US parents abroad. US government has certain obligations to these people, and also wants to encourage them to come back.
Source of Congress’s Power? Not clear, but the power is accepted now.
Art. I, § 8: power over naturalization? This is a lesser power.
Exceptions
Preventing perpetual transmission of citizenship to people who have no ties to US.
Required contact with US. Parent must live in US before birth. Since 1978, you don’t have to establish residence after your birth.
Jus Sanguinus & Gender
INS v. Nguyen. Gender-based distinction doesn’t violate EPC. Someone born to US citizen father becomes citizen only under certain circumstances (blood relationship must be established by clear and convincing evidence, can be established in various ways). This doesn’t apply to US citizen women who give birth abroad. Citizenship automatically passes and can be claimed at any point in the life of the child.
