A+-+POLS+451+Birthright+Citizenship

= = This is the main page for the birthright citizenship litigation.

Joe: jmetzg2@uic.edu Alijah: amatar4@uic.edu Wyatt: wberko2@uic.edu Maritza: mrodri65@uic.edu Lizbeth: lbaraj1@uic.edu Fuad: frafid2@uic.edu

__Research Questions__



Sources: 1. [|Birthright Citizenship Article] (Fuad 4/7/2011) 2. [|gestation of birthright citizenship] (Fuad) 3. [|A Historical Perspective] (Fuad) 4. [|Constitutional and Statutory definitions of Citizenship] (Fuad) 5. [|The Constitutionality of Birthright Citizenship] (Fuad) 6. [|Dred Scott v. Sanford : troubling opinion] (Fuad) 7. [|Immigration outside the Law] (Fuad) 8. [|Birthright Citizenship and Illegal immigrants] (Fuad) 9. [|Martinez-Pioquinto v. Holder]Judge Pregerson's dissent in this cancellation of removal case provides his rational for not separating mothers from their children. (Wyatt 4/14/11) 10. [|Two Yale Professors Argue] (Fuad)- Two yale professors argue about birthright citizenship and Jurisdiction 11. [|Birthright Citizenship in the United States: A Global Comparison] A CIS study with good amount of data; but keep in mind CIS is a conservative think tank with anti-immigration views. (Wyatt) 12. [|"In The Child's Best Interest"]A joint study by UC Berkley and UC Davis law schools about separating illegal immigrant parents from legal immigrant children. (Wyatt) 13. [|alien citizen] (Fuad) alien citizenship- read this source is really interesting. 14. [|Cerrillo-Perez v. INS- Court of Appeals, 9th Circuit 1987] Section III is where Judge Pregerson cites most of his rationals for his dissents in cancellation for removal cases (Wyatt) 15. Chuck Peter & Smith Rogers. (1996). Citizenship Without Consent. Retrieved April 15, 2011. [] (Maritza) 16. Birthright Citizenship and the Constitution. [|http://lawreview.richmond.edu/birthrighcitizenship/#_ftn1t-] (Maritza) 17. H.R. 140: Birthright Citizenship Act of 2011. [] (Maritza) 18. Natural Law and Birthright Citizenship in Calvin’s Case. (Maritza) 19. Legislation denying citizenship at birth to certain Children born in the U.S. [] rs+or+other+foreign+diplomats&cd=10&hl=en&ct=clnk&gl=us&client=firefox- a&source (Maritza) 20. Feere, Jon. __Birthright Citizenship in the United States: A Global Comparison.__ August 2010. 11 April 2011 . (Alia) 21. Houston, Michael Robert W. "Birthright citizenship in the United Kingdom and the United States: a comparative analysis of the common law basis for granting citizenship to children born of illegal immigrants." May 2000. 12 April 2011 . (Alia)

[|Rand Paul's constitutional amendment]to end birthright citizenship faces long odds.

Here is the text of Rand Paul's joint resolution: JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to United States citizenship. //Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein),//

`Article--
Text of H.R. 140, the bill to end birthright citizenship introduced by Rep. Steve King (R-Iowa).

And here is the text if you don't want to download the .pdf A BILL To amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth. //Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,//

SECTION 1. SHORT TITLE.
This Act may be cited as the `Birthright Citizenship Act of 2011'.

SEC. 2. CITIZENSHIP AT BIRTH FOR CERTAIN PERSONS BORN IN THE UNITED STATES.
I suggest that you begin studying the law on this by looking at the summary on this wiki of the Chinese Exclusion Cases, especially Yick Wo v. Hopkins. (Evan, 2/25/11)

**02-28-2011: Birthright Citizenship: Overall Introductory Information/Opinions**

**1.** [|Open Congress] is a good starting point on H.R. 140, gives a detailed description on the bill's progress through the house, and also allows independent news/opinion articles to post comments.

**2.** [|The John Birch Society] gives a very general description about the purpose for the bill, and the conservative point of view on H.R. 140. Pretty decent source for finding one side of the argument. (Found via Open Congress). >>Things to think about: 1. Doesn't the extreme reinterpretation of Amendment 14 go against the society's core values? 2. Are there any possible underlying reasons for this far-right organization to support a reinterpretation of Amendment 14?

**3. [|Rep. Mike Honda's] (D-CA) opinion on HR 140, an opposing view to the conservative arguments. (Source: CNN, found via Twitter #Birthright Citizenship). **

--Joe Metzger

(Actually the John Birch Society is not a conservative organization. It is a right-wing extremist organization that is far to the right of the conservative wing of the Republican Party. I would be very cautious about citing anything they publish--Evan, 2/28)

Republican leaders in Congress are now flirting with changing portions of the 14th Amendment—which grants citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof"—to deny citizenship to children born here to illegal immigrants. The idea of modifying birthright citizenship has been around for decades but was previously relegated to the fringes of the immigration restriction movement. Yet in recent days, Sens. John McCain, Lindsey Graham and Jon Kyl have embraced the idea; Senate and House GOP leaders Mitch McConnell and John Boehner have proposed hearings. Repealing birthright citizenship is a terrible idea. It will unquestionably jeopardize the electoral future of the GOP by alienating Hispanics—the largest minority and fastest-growing segment of the U.S. population. More importantly, ending birthright citizenship would fundamentally change what it means to be an American.  Proponents of repeal argue that the 14th Amendment was passed after the Civil War to guarantee citizenship to freed slaves, and that it was never intended to grant rights to the offspring of illegal aliens. But this argument is a non sequitur. At the time of the adoption of the amendment, there was no category of "illegal alien" because immigration was unrestricted and unregulated. If you secured passage to the United States, or simply walked across the open border with Mexico or Canada, you could stay permanently as a resident alien or apply to be naturalized after a certain number of years. And if you happened to give birth while still an alien, your child was automatically a citizen—a right dating back to English common law.  The most serious challenge to birthright citizenship for the children of aliens came in 1898, and it involved a class of aliens who were every bit as unpopular as present-day illegal immigrants: the Chinese. Like most illegal immigrants today, the Chinese came here to work as common laborers, eagerly recruited by employers but often deeply resented by the workers with whom they competed. This popular resentment, coupled with racial prejudice, led to America's first immigration restriction law, the Chinese Exclusion Act of 1882. It was followed by successively more restrictive federal and state laws that denied Chinese aliens—and, later, other Asians—the right to own property, to marry, to return to the U.S. if they left, or to become American citizens.  With anti-Chinese alien sentiment still high, the Supreme Court took up the case //U.S. v. Wong Kim Ark// in 1898. Born in San Francisco to alien parents who later returned to China, Wong travelled to his parents' homeland for a visit and was denied re-entry on his return in 1895. The government argued that Wong had no right to birthright citizenship under the 14th Amendment because his parents remained "subjects of the emperor of China" not subject to U.S. jurisdiction, even while residing in California at the time of his birth. In a 7-2 vote, the Supreme Court ruled otherwise.  The court found that the only persons Congress intended to exclude from birthright citizenship under the 14th Amendment were children born to diplomats—an ancient, universally recognized exception even under common law; Indians, who by treaty were considered members of sovereign nations; and children of an occupying enemy. "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," wrote Justice Horace Gray for the majority. To hold otherwise, he noted, would be to deny citizenship to the descendants of English, Irish, Germans and other aliens who had always been considered citizens even if their parents were citizens of other countries. For more than a 100 years, the court has consistently upheld this analysis.  Our history has been largely one of continuously expanding the community of people regarded as Americans, from native-born whites to freed slaves to Indians to naturalized citizens of all races and ethnicities. Since the abolition of slavery, we have never denied citizenship to any group of children born in the U.S.—even when we denied citizenship to their parents, as we did Asian immigrants from 1882 to 1943. This expansive view of who is an American has been critical to our successful assimilation of millions of newcomers. Conservatives should not betray these values based on a misreading of American history and legal precedent. Instead of amending the Constitution to eliminate "anchor babies"—the ugly term opponents of birthright citizenship use to describe these U.S. citizens—Republicans should be helping them become good Americans. (Maritza)

[|Jus Soli](Fuad) - Jus Soli also known as birthright citizenship > **Section 1.** 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. **Section 2.** Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. > **Section 3.** No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. > **Section 4.** The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. > **Section 5.** The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Ok. I have found something really interesting towards birthright citizenship.[|jurisdiction] A. It is not clear to how Marshall or the Court in Wong Kim Ark would have approached birthright citizenship for illegal immigrants. Two important criterias that Marshall mentioned: 1. Continual infractions of the law 2. License to enter Illegal Immigrants do not have a license to begin with. Illegal Immigrants, therefore, do not have Jurisdiction in the United States of America. I found this pretty interesting, and it caught my eye. I think you guys should read more on this to find out on what they do consider to be Jurisdiction. A. Check out this opinion by Justice Marshall: [|Exchange v. McFadden] Fuad Rafidi 3/23/2011
 * //[|Jus Sanguinis] (Fuad)- contrasts with Jus Soli//**
 * //[|Birthright Citizenship in the United States] (Fuad- this page explains the common law, federal law, and legal history, Also, i would look at the Indian Citizenship Act of 1924.)//**
 * //(Fuad) - 14th Amendment states://**

@http://www.migrationpolicy.org/pubs/BirthrightInsight-2010.pdf a study about the impacts of repealing birthright citizenship would have on future population projections (Lizbeth)

@http://www.nytimes.com/2011/01/05/us/politics/05babies.html?pagewanted=1&_r=1 New york time article that explains or sees birthright citizenship as the next immigration battle. Also the article makes mentioned the United States v. Wong Kim Ark, applied the citizenship provision to a child born in the United States to Chinese immigrants; it was 1898 (Lizbeth)

[] United States v. Wong Kim Ark (1897) one of the first supreme court cases that concluded that the government could not deny naturalization to anyone born in the United States (Lizbeth)

[|Oforji v. Ashcroft] a case where a Nigerian woman is up for deportation but her two daughters were born in America and the father's whereabouts are unknown. Judge Posner is one of the judges presiding over the case: //"We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. But the way to stop that abuse of hospitality is to remove the incentive by changing the rule on citizenship, rather than to subject U.S. citizens to the ugly choice to which the Immigration Service is (legally) subjecting these two girls. A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it...The purpose of the rule was to grant citizenship to the recently freed slaves, and the exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the Fourteenth Amendment literally. Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense. On May 5, 2003, H.R. 1567, a bill 'To amend the Immigration and Nationality Act to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens,' was referred to the House Subcommittee on Immigration, Border Security, and Claims. I hope it passes. Our hands, however, are tied. We cannot amend the statutory provisions on citizenship and asylum.////" - Judge Posner// (Wyatt)

[|CRS Report: U.S. Citizenship of Persons Born in the United States to Alien Parents] A Congressional Research Service report on birthright citizenship to alien parents. (Wyatt)

[|Plyler v. Doe] A challenge to a Texas education law allowing the state to deny funding to school districts which educate children of illegal immigrants //"But § 21.031 is directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States. Yet that appears to be precisely the effect of § 21.031." - Justice Brennan// Questions raised: Is seperating children from their parents a legitimate state interest? Does HR 140 penalize children for being born to illegal alien parents? (Wyatt)

Summary of information relative to our case from [|"Just How does an Anchor Baby Anchor the Illegal Alien Parent?"]by the Center for Immigration Studies: //A reader asked: "Just what is the mechanism that allows an anchor baby to keep his or her illegal alien parents in the U.S.?"//

There are four different mechanisms at work here, as my CIS colleague, Jon Feere, and I see it:
 * the most obvious, and the least numerically significant, is the right of a 21-year-old citizen to petition for immigrant status for a non-citizen parent. By definition, this cannot happen until at least 21 years have passed.
 * under some quite precise circumstances the presence of a U.S.-born child of an illegal alien, or a green card holder in trouble with the law, can cause a judge to grant legal status to an alien who would not get it otherwise.
 * much more important is the hidden, undocumented, and uncounted influence of the presence of a U.S.-citizen child in the household of an illegal alien; officials are less likely to deport the parent of such a child than they are to deport an alien who is otherwise similar, but childless.
 * the fourth mechanism may be more important than all the rest, and is the least susceptible to counting. This is the perception in the minds of the illegal alien parents, usually mothers, that somehow the presence of a U.S.-born baby will be helpful to parents in immigration proceedings. That thought process probably works, in most instances, without any detailed knowledge of the three mechanisms noted above.

....

//There is an anomaly in the first of the four mechanisms listed above. Although the U.S. citizen must be 21 before he or she can petition for the admission of a parent, the same person (born in the U.S. to one or two illegal alien parents) can, at the age of 18, seek admission for an overseas spouse or for his or her foreign-born children. That's the way the law reads.// **//As to the second mechanism, it can come into play only when an illegal alien has all of the following qualifications; the alien://** **//Then an immigration judge – if he rules favorably on all four counts – can grant a legal status to the alien in question.//**
 * **//is involved in a formal removal procedure, and//**
 * **//has had a "continuous physical presence" in the U.S. for 10 or more years, and//**
 * **//has not been convicted of certain criminal offenses, and//**
 * **//whose removal would result in "exceptional and extremely unusual hardship" to a citizen relative, including a child.//**

(Wyatt)

[|Exceptional and extremely unusual hardship] A summary of the "exceptional and extremely unusual hardship" provision for a cancellation of removal. This is one of the ways for an illegal immigrant who had children in The United States to avoid deportation. (Wyatt)

Arguments Against Birthright Citizenship
In the Spring of 1999, Charles Wood wrote "Losing Control of America's Future -- the Census, Birthright Citizenship, and Illegal Aliens," published by the Harvard Journal of Law and Public Policy. Wood provided legal counsel to the United States Senate Immigration Subcommittee from 1995-97, 1985 and 1979-82. In his report, Wood detailed several reasons for and against Birthright Citizenship as well as the legal framework that defines the issue and its future. The following is a summary of his arguments against Birthright Citizenship and his rebuttals to the arguments from those who favor it.
 * Harm Caused by Birthright Citizenship**
 * **//Loss of control over nation's future//** - By granting automatic citizenship to any child born in the United States, it deprives the American people of their right to determine the demographic future of the country. "Any nation, if it is to survive as more than a name or geographic location, must be capable of wisely selecting which aliens will be allowed to live within its territory and which will be granted full membership in its political community."
 * **//Increased number of citizens without traditional American values//** - Because the parents are here illegally, their American-born children are more likely to stay in the shadows, meaning they will be less likely to join in the wider community, learn English, and assimilating into society.
 * **//Increased number of dual citizens//** - Illegal alien parents are citizens of other nations that grant citizenship to their children regardless of birthplace, so the child's first allegiance may be to a country other than the United States, yet they'll still gain all the rights and privileges of U.S. citizens.
 * **//Incentive for illegal immigration//** - A study of legal and illegal Hispanic women who gave birth in San Diego County from 1991-92 revealed that at least 15% of them came to the United States to give birth in this country, and two-thirds of those women said it was so their babies could become citizens.
 * **//Greater difficulty deporting parents//** - Illegal alien parents of U.S. citizens are more difficult to deport because of their child's legal right to live in the country. Also, it creates difficult situations when considering the family's access to social services.
 * **//Higher welfare costs//** - Children become instantly eligible for welfare benefits. In fiscal year 1995, more than 200,000 children of illegal aliens in California received aid at a cost of $720 million.
 * Defunct Arguments Favoring Birthright Citizenship**
 * **//Hurt national interest by adding to the illegal alien population//** - Some argue that it would be contrary to our national interests to end Birthright Citizenship because it would increase the number of illegal aliens in the United States, and consequently, exacerbate the other problems that come with illegal immigration. However, these problems already exist with or without Birthright Citizenship and discontinuing Birthright Citizenship would immediately remove one of the magnets which draws people to the United States illegally in the first place.
 * **//Unfairness//** - It would be unfair to U.S.-born children who would no longer receive automatic citizenship. But, the primary responsibility of our political leaders should be to protect the interests of U.S. citizens and not those from other nations who happen to give birth in the Unites Sates. Furthermore, the American people should decide the future fate of the nation's demographics.
 * //**Practical difficulties**// - Changing the laws will cause major practical difficulties such as proving citizenship during a passport application process. However, most industrialized nations don't observe Birthright Citizenship and several have changed their laws recently with no major difficulties.

(Maritza)
In an [|__ACSblog post__] discussing her Issue Brief, Wydra explained: Despite the plain language of the Amendment and its powerful history, opponents of birthright citizenship continue to fight its meaning and purpose. Most of the efforts to narrow the meaning of birthright citizenship have been motivated by a desire to exclude from citizenship children born on U.S. soil to undocumented immigrants. Unfortunately, this anti-citizenship political movement shows no signs of slowing: in Congress, bills have been introduced each year for more than a decade to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally .... The anti-citizenship arguments are debunked in detail in my Issue Brief. But the fatal flaws in these arguments are not the most compelling reasons for rejecting them in favor of the broad and clear definition of citizenship intended by our Reconstruction Framers. Rather, **the text, history and principles behind the Citizenship Clause** demonstrate that the drafters of the Fourteenth Amendment created an elegantly simple and intentionally fixed rule of birthright citizenship that was intended to serve as a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Providing for birthright citizenship regardless of race, color or previous condition of servitude righted horribly wrong the of //Dred Scott v. Sandford//, in which the Supreme Court held that persons of African descent born in the United States could not be citizens under the Constitution, and ensured that all native-born children, whether members of an unpopular minority or descendants of privileged ancestors, would have the inalienable right to citizenship and all its privileges and immunities.

(Maritza)

Here are some cases that I found regarding the misinterpretation of the 14th amendment:

The Fourteenth Amendment EXCLUDES the children of aliens. (The Slaughterhouse Cases (83 U.S. 36 (1873))

The Fourteenth Amendment draws a distinction between the children of aliens and children of citizens. (Minor v. Happersett (88 U.S. 162 (1874))

The phrase "subject to the jurisdiction" REQUIRES "Direct And Immediate ALLEGIENCE" to the United States, NOT just physical presence. (Elk v. Wilkins 112 U.S. 94 (1884))

There is NO automatic birthright citizenship in a particular case. (Wong Kim Ark Case, 169 U.S. 649 (1898))

The Supreme Court has NEVER confirmed birthright citizenship for the children of illegal aliens, temporary workers, and tourists. (Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982))

(Alia)