Birthright Citizenship – A Closer Look

Watching the recent Republican Presidential debate, I felt that one particularly interesting topic discussed among the contenders was U.S. policy concerning birthright citizenship.  At least one candidate has vowed that upon becoming President of the United States he will sharply curtail our nation’s “liberal” construal of birthright citizenship – specifically stripping such right from children born within the United States and its territories but to parents who are not themselves lawfully present therein.

Politics aside, that got me thinking about the current state of birthright citizenship law and its possible dimensions.  I became interested in determining whether current U.S. birthright law is really as “liberal” as certain Republican candidates would lead us to believe.  Indeed, a child born in the U.S. to unlawfully present parent/parents occurred to me to be only one context out of potentially many wherein the scope of birthright citizenship is tested.

What about instances where a child of a U.S. Citizen is born outside of the territorial U.S.?  What if the genetic/gestational mother of the child born outside the territorial U.S. is not a U.S. Citizen but the child’s father is and the parents are not married?  Is such child then an automatic U.S. citizen; is she entitled to naturalization?

The answers to these questions are surprising – In no instance is a child born outside of the United States assured birthright citizenship.  Indeed, even in the case of a child born to two U.S. Citizens, but abroad, U.S. Citizenship is not automatically conferred.  Furthermore, the Immigration and Naturalization Act draws a big distinction between children born in and out of wedlock for determining the child’s right to U.S. Citizenship, where one parent is a U.S. Citizen and the other is not.  See INA Sec. 101(b); Sec. 301(d).

[WEDLOCK]If the parents are indeed married at the time of the child’s birth, and one parent is a Citizen while the other is a U.S. national, the U.S. Citizen parent MUST have resided continuously within the territorial U.S. no later than 1 year prior to the child’s birth.  If the parents are married, and one parent is a Citizen while the other is a foreign national, then the U.S. Citizen parent must have resided within the territorial U.S. for at least a continuous 2 year period after the age of 14.

[OUT OF WEDLOCK – Father is U.S. Citizen] The child born abroad will NOT have right to Naturalization unless a) paternity is clinically proven by clear and convincing evidence; b) the father was a U.S. Citizen at the time of the child’s birth; c) the father has agreed to provide financial support to the child until the child reaches 18 years of age.  Additionally, before the child reaches 18 years of age, one of the following criteria would also have to be met: a) a court of competent jurisdiction declares the U.S. Citizen, the father of the child in question; b) the child is legitimated under the laws of the child’s domicile or residence; c) or the father acknowledges the child as his by sworn oath or affidavit.  See INA Sec. 301(d),(e),(g)  “Legitimated under the laws…” generally relates to a jurisdiction’s statutory means or rules for recognizing a child as (in fact) the child of a parent (typically the alleged father).  For example, some world nations maintain that a child is not the legitimate child of an alleged father if the father’s name was not on the birth certificate.  Conversely, other nations maintain that a child is legitimated at any time the father is proved to be the natural/genetic father of the child in question.

As the foregoing illustrates, U.S. birthright law may not be as liberal as some would suggest.  First of all, considering an “in wedlock” scenario – it appears counter-intuitive (at best) that the pre-requisites for birthright citizenship are higher when the married parents are both “Americans” (one being a U.S. Citizen, the other being a U.S. “national”) compared with when one parent is a foreign national.  Moreover, in an “out of wedlock” scenario, it is evident that current U.S. Immigration Law may promote “dead beat” dads or at least gives a male an unsettling degree of license to have “illegitimate” children abroad while maintaining the unilateral power of denying to his child the benefits of U.S. Citizenship.

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