Will US revoke the right of American citizenship to foreigners born here?

A bill in the House of Representatives would change the 14th amendment to the US Constitution that grants anyone who is born on US soil the right of American citizenship. Efforts to revoke birthright citizenship could make it the new flashpoint in the debate over immigration.

New American citizens are sworn in at a citizenship ceremony in Boise, Idaho.

Newscom/File

By Matt Rocheleau, Correspondent

June 2, 2010

Boston

Anyone born on American soil is an American.

That’s an unconditional right, according to the 14th Amendment of the US Constitution.

It’s not an exclusively American practice. Worldwide, about 30 nations (mostly in the Western Hemisphere) have similar birthright citizenship policy. Citizenship based on where a person is born, is called jus soli which is Latin for “right of the soil."

But jus soli is primarily a New World right. Today, there are no European nations that grant jus soli. Most countries in Europe use a jus sanguinis policy, which determines citizenship based on having an ancestor who is a citizen.

A bill making its way through Congress, if passed, would bring the US more into line with current European birthright policies. But in the wake of the controversy over Arizona's new immigration policy, any changes to the 14th amendment would likely become another flashpoint in the debate over illegal immigrants.

"Many countries do not grant birthright citizenship because they have older histories and see themselves as individual nations with individual identities," explains John Skrentny, Director of the Center for Comparative Immigration Studies and sociology professor at the University of California at San Diego. “Whereas the United States, like many other countries in the Western Hemisphere, began as, and has always seen itself as, a melting pot,” he says.

In recent years, other nations, even if they seem themselves as open to legal immigrants, have taken steps limit the size of any demographic boost based on births to foreigners.

In 1983, for example, England amended its jus soli policy (pdf download) so that children born in the United Kingdom were only granted citizenship if one of their parents was either a citizen or could prove some sort of permanent residency in the country.

And India moved away (pdf download) from granting birthright citizenship in late 2004 to only allowing those born in the country to gain citizenship if both parents are citizens or if one parent is a citizen of India and the other is not an illegal immigrant.

In the US, those opposed to this form of granting citizenship would like to revise the 14th amendment, which says, in part:

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 ….

The14th amendment was passed after the Civil War with the intent of clarifying that former slaves were citizens and entitled to Constitutional rights. Since then, the Supreme Court has consistently upheld that birthright of children born to foreigners in the US, including a 1898 challenge concerning children of non-citizen Chinese immigrants.

How many children of illegal immigrants are born in the US each year?

No one really knows.

But in April, the Pew Hispanic Center, a Washington-based, nonpartisan organization, released a report (pdf download) that estimated the number of children of illegal immigrants, who received citizenship by birth on U.S. soil, has risen by nearly 50 percent from 2.7 million in 2003 to 4 million in 2008. One-third of those children live in poverty, which is nearly double the poverty rate for children of US-born parents.

According to the “Birthright Citizenship Act” bill, which has 91 cosponsors, the proposed changes would affect the Fourteenth Amendment and only grant citizenship “if the person is born in the United States of parents, one of whom is:”

  • a citizen or national of the United States;
  • an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or
  • an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).”

But getting such changes through both houses of Congress is a long shot.

“I’d be surprised,” if the bill passes, says Tamar Jacoby, president of ImmigrationWorks USA, a national employer group that supports immigration reform that secures borders, strengthens workplace laws, and brings the immigrants already in the country into, and paying into, the system. “This does come up every so often … but it hasn’t gotten much traction in the past,”

However, some immigration reform advocates argue that federal courts have never specifically faced the question of whether children born to illegal immigrant parents should be granted citizenship, according to a recent NPR article.

Legislation aimed to prevent citizenship from being given to U.S.-born children of unauthorized immigrant parents is also being pushed at the state level in Texas and Oklahoma.

A list of countries, by population, that grant birthright citizenship:

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