Birth Right Citizenship

With recent talk and political rhetoric with respect to ending birthright citizenship, we wish to share the current source of law for the granting of US citizenship at birth. We do not believe the current citizenship laws can be changed through an executive order.

8 U.S. Code § 1401  deals contains the law regarding citizenship at birth. Citizenship in the United States is a matter of federal law, governed by the United States Constitution.

As per the Fourteenth Amendment to the United States Constitution adopted on July 9, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause, which states: “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.”

Currently, all of the below scenarios qualify for citizenship at birth:

  • “a person born in the United States, and subject to the jurisdiction thereof” or
  • “a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe” (see Indian Citizenship Act of 1924).
  • “a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States”
  • “a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person”

Under current law US citizenship is conferred even if one is born outside USA provided a few other requirements are met.

Based on the current law it might be impossible to make changes to the current laws on citizenship at birth through an executive order.

 

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