Should Native-Born Children Get US Immigration / INS and Birthright Citizenship?


This hub poses an intellectual question for debate on the topic of US Immigration, namely: should there be any exceptions to the rule that a citizen is 1) born within US borders, or 2) naturalized?

Specifically, should there be any circumstances where someone is born within US borders but is NOT considered a citizen? Currently, one can only be stripped of US citizenship in two ways: a) renounce their US citizenship, usually by naturalization into another country's citizenship, or b) be convicted of immigration fraud, obtaining citizenship through fraud.

I am fully aware this was the way it always WAS done, but I am sure founding fathers did not have "illegal immigration" in mind when those rules were drafted.


Relevance to Today

I was watching some news coverage of the May Day parade, and some protesters claim that they are US citizens, but they have friends, parents, relatives, etc. who are illegal, and the new AZ law will break apart families and cause many undue hardships.

I wonder if they are aware of the 7-year rule, where the Attorney General can exempt certain illegal immigrants from being deported, if they have spent more than 7-years in the US and generally had been a good citizen?

And why should the US immigration system reward cheaters, who did not follow the law, got in illegally, and enjoy special consideration just because s/he has a child born here?

It is a tough subject to crack.

It also reminded me of the Nada Prouty case.

Who is Nada Prouty, you ask? Nada Prouty was on 60 Minutes a while back. She was originally from Lebanon, eventually joined the FBI and later, CIA, and was investigator on most terrorism cases, both domestic and aboard. She had served the US with distinction for over a decade both as investigator and interrogator, sometimes undercover in hostile countries, including Iraq and Afghanistan. Her life went crashing down when one of her brother-in-law was seen in the company of a radical Islamic cleric, and she was investigated by the FBI. Even though FBI was not able to convict her of any crime, they forced her to confess to minor charges, then took away her citizenship because it was obtained through a "sham marriage". Apparently all her years of service was for nothing. In fact, she was to be deported to Lebanon until a  Federal judge blocked the deportation, with sharp criticism of FBI, who actually gave medals to the investigators of this case, even though there never was proof of any leak from Prouty.

Which got me thinking: if a veteran of the War on Terror, who had put her life (and life of her unborn child, really) on the line for our country can get her citizenship taken away for past sins, while children can earn citizenship simply by being born across an arbitrary line, and that can never been taken away (except through treason), is there something wrong with the system?

Are US-born children of illegal immigrants citizens?

It may be surprising to some, but the answer is: probably, NOT a definite yes.

The 14th Amendment, which defined citizenship, did not define any difference between children of legal or illegal immigrants. A later ruling, US vs. Wang Kim Ark, by the Supreme Court, stated that US born children of foreign citizens, but legal residents of the US, are indeed US citizens. Supreme Court had never stated that children of illegal immigrants are US citizens, but it is generally assumed to be so, based on INS v. Rios-Pineda

In INS v. Rios-Pineda, husband and wife entered US illegally, husband was caught, and was released after he volunteered to leave. However, he never left, so INS initiated deportation proceedings. He was able to file appeal after appeal, and during that time a child was born, and eventually they chose to appeal on the basis that INS should re-review their case because they have spent over 7-years in the US and thus is eligible for special consideration by attorney general, as deporting him would cause undue hardship on his child. Attorney general denied request because the case started long before the child was born. The case eventually reached the Supreme Court, who ruled for INS. In the decision, the court had basically assumed the child, born in the US to illegal immigrant parents, to be a US citizen. It is considered "dicta", or incidental "remark", not a ruling.

Citizenship by Birthright

The definition of citizenship is given in the 14th Amendment of the US Constitution, passed during the reformation after the Civil War. It granted citizenship to all African-Americans (most ex-slaves). It basically defined that with a few exceptions, all children born in the US are US citizens.

One significant clarification to 14th Amendment was the case US vs. Wong Kim Ark, where the Supreme Court ruled that native-born children of legal residents (but foreign citizens) of the US are US citizens.

What is interesting to note is that it was never clearly defined whether children born in the United States, to illegal immigrant parents, are US citizens or not. Supreme Court have NEVER ruled on this issue, and Congress have NEVER passed a law on this topic. However, it is simply "assumed" that they are.

There were a few cases where the court had simply remarked, but NOT RULED, that the Constitution had not made such a distinction, thus the normal definition is "inclusive", i.e. the legal immigration status of the parents at the time of birth is of no relevance. However, there were no formal rulings, so the issue is still up in the air. (see sidebar)

And it is debatable whether Congress have the right to pass laws defining any such exceptions. The Heritage Foundation maintains that Congress does have such authority to stop children of illegal immigrants from being citizens, but again, this is debatable, as it would depend on interpretation of the intent of the lawmakers who wrote the 14th Amendment, and how those interpretations would stand today.

CLARIFICATION: In my own opinion, citizenship by "birthright" is actually not a part of the birth itself, but is rather, inherited from one or both of child's parents. In fact, this inheritance is specifically recognized by current immigration laws. Thus, I believe if the parents are not legal immigrant or citizen, then the child should not be automatically granted citizenship, because there was nothing to be "inherited". I believe the 14th Amendment was a specific case granted to provide citizenship to emancipated slaves, and the part about "native born" was never meant to apply to children of illegal immigrants.

Read the 14th Amendment Closely

So what does the 14th Amendment actually say?

"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."

But what does "subject to the jurisdiction thereof" actually mean? Most arguers ignore this part. Yet consider what attorney general in 1873 said about it...

"The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."

In other words, aliens do NOT enjoy full rights, even those born here. How limited are their rights... would be defined by later courts and congress sessions.

Or put the question in another way... If you violated immigration laws, can you really be considered to have been "subject to jurisdiction" of the United States? And if you are NOT a legal resident of the US, are your children actually subject to 14th Amendment citizenship? That is very much in doubt.

What about Plyler vs. Doe (1982)?

Some have asked what about the case Plyler vs. Doe (1982) out of Texas? Doesn't it say that illegal immigrant children are also protected under 14th Amendment?

Not quite...  while Plyler vs. Doe case is about the citizenship clause, but the reasoning behind it was actually more about equality. Plaintiff, the Texas Dept of Education, maintained that "education is not a fundamental right", and thus, illegal immigrant's children are not entitled to it. Chief justice, Warren Burger, ruled against the state because he believes that viewpoint is not rational.

In other words, the only thing you should take away from this decision is that education, even to illegal immigrant's children, is guaranteed. So it is actually more of an "equal rights" or "equal protection" ruling than "citizenship ruling".

Or in other words, if John can go to school, and Sally can go to school, it does NOT mean Sally is John. If children of legal resident can go to school, and children of illegal immigrants can go to school, it does NOT mean legal residents are illegal immigrants (or vice versa).

Furthermore, in INS. vs Rios-Pineda (1985), as cited earlier, the ruling is a 'dicta', or assumption. It did not explicitly rule that children of illegal immigrants are actually citizens, even if they are born in the US.

(For more legal thoughts on Plyler vs. Doe, see University of California Berkeley's Law School analysis)

A Solution?

As long as entering illegally is not penalized enough, people will opt for the illegal route instead of the legal route. It is a simple matter of relative risk.

On the other hand, illegal immigrants *do* contribute to the economy and can be good citizens.

And one of the fastest ways to citizenship is through military service. There is virtually no wait in line. The system recognizes that if you are willing to put your life on the line, you definitely deserve citizenship.

So what if we combine the aspects.... to a new system?

1) Establish system of "provisional residency", which essentially established five types of people in the US: visitors, provisional residents, permanent residents, citizens, and illegals. Provisional residency will last several years (5-7?) upon which they can be switched to permanent residency.

Why another class? The current system does not account for "part-time" or provisional residents. Essentially, provisional residents are "on parole". US has not decided whether to let you stay permanently or not, so a provisional stay is granted, subject to revocation.

EDIT: I was surprised when I read through the USCIS website that there is ALREADY a "conditional permanent residency" system. Basically, it is a 2-year provisional period, cannot be extended. The "green-card" is only valid for 2 years, and cannot be renewed. You either get converted to the full permanent residency, or it's bye-bye America. So apparently, the laws are already in the books, just rarely used or enforced.

2) Take away the automatic assumption that all native born children are citizens. As their parents are in the US illegally, they should not be citizens. However, they are given permanent resident status, with automatic citizenship upon turning 18. And their illegal immigrant parents are given PROVISIONAL RESIDENT status, provided they can prove they have been here and been good citizens. Else, the child can apply for their parents to come over upon turning 18.

While a children should not be punished for their parent's sins, the parents should not benefit from children's birthright either. By making the children permanent resident, with automatic citizenship upon turning 18, the parents cannot use the citizenship of their children as bargaining chip, while not taking away too many rights of the child.

3) There needs to be some sort of a penalty for provisional residents. Maybe extra 50% tax, or required to contribute to Social Security but contributions do NOT count toward their own social security eligibility, or not eligible for local aid, or something that is significant.

Why? It must be enough of the penalty to make sure they know they *are* being evaluated, but not so much that they feel it is completely unfair.The details can be worked out later. Social security and Medicare deduction may be a good idea. Most "illegals" already pay it if they are employed using false ID, but they don't enjoy the benefits any way.

4) Offer "fast track" to permanent residency and citizenship through civil or military service.

We already do this, but not for civil service, and we need to offer an alternative for those who want a more... peaceful pursuit. Government service, Peace Corp, and others are all possibilities.

This system is just an idea, not fleshed out. There are bound to be many holes, and logical discussions are welcome. Any rant comments will NOT be accepted.

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Comments 27 comments

Seryhu 6 years ago

Yes, all native born SHOULD be citizens automatically regardless of their parents' immigrant status.

kschang profile image

kschang 6 years ago from San Francisco, CA, USA Author

@SeryHu -- And your reasoning for this is what?

thevoice profile image

thevoice 6 years ago from carthage ill

terrific hub read thanks its interesting view thanks

vrajavala profile image

vrajavala 6 years ago from Port St. Lucie

You're right. Wong Kim Ark: If you read carefully, you will note that it says that the parents were legal residents, (domiciled). That 9s, the difference between anchor babies, who are not citizens, (native, natural born or otherwise) and children like Wong Kim Ark, whose parents were here legally.

That, at the time of his said birth, his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco, State aforesaid."

In fact, when Wong went for a visit to China, he left behind a residence in San Francisco.

He is "native", not "natural born."

After witnessing what Major Hasan did, I'm not sure that I want to endanger our military with the "fast track method."They have recently made it really easy for those coming from Islamic countries to get the fast track through military service. My feeling is that there should be no Muslims in the military. period. They will not fight against the enemy.

kschang profile image

kschang 6 years ago from San Francisco, CA, USA Author

The problem with Major Hasan is his psychological state, not the military system, IMHO. I frankly think he went a bit crazy after talking with too many soldiers with psychological trauma. I frankly see no problem in providing citizenship to anyone who would risk their lives for the country. Indeed, in one of Robert H. Heinlein's novels, it is a REQUIREMENT to citizenship (ref: Starship Troopers)

But Major Hasan's problem is for another article.

jh 6 years ago

the beginning of all problems is giving illegal aliens automatic citizenship because this is what is luring them to the usa. they come here have a child and it will open all kinds of benefits programs especially food stamps and mecicaid and then they come here with all the 5 kids they left in mexico get into government housing bring all the family from mexico and wella! we now have 20 million illegal aliens and counting! no automatic citizenship for illegal aliens

kschang profile image

kschang 6 years ago from San Francisco, CA, USA Author

Painting with a bit too wide of a stroke, aren't, jh?

AFAIK, Food Stamps and whatnot are administered by the State, and thus eligibility is up to the state. I may be mistaken by that. I think AZ already took that away a while back.

And I am pretty sure you don't get to apply for the various immigration "first preference" (F1) queue for "parents" until you're 21. So your reasoning is a bit, well... overblown. Just because the kid is citizen does not mean the parents cannot be deported. There's the 7-year eval program mentioned before, but again, who knows if they'll qualify?

JON EWALL profile image

JON EWALL 6 years ago from usa


Nowhere other than the US is a child born in a nation would that CHILD become a legal citizen of that nation.

On of the arguments that is mentioned is ''breaking up a family ''

Other than what is now happening we could consider the following.

If one parent is a US citizen,that newborn child would automatically be a us citizen.

What has happened is that our laws are being abused by illegal aliens and the refusal of our government to enforce the law.

Entering our country without permission is a violation of our immigration laws. No one is above the law, a violation is a violation.Should our government not enforce the laws and the constitution , one day we may be looking at anarchy.

Nuyorican21 profile image

Nuyorican21 6 years ago from New York, NY

Well there is no doubt that we have ignored the issue and built up a lot of ridiculous statistics and biases. There should be provisionary citizenships that are easier to issue and understand. Limit government/state benefits and set clearer and stricter guidelines for deportation. Most importantly, and conservatives will have to accept this, there will be government resources dedicated and involved. Perhaps that's why Gov. Brewer in AZ passed a sales tax hike and it was accepted by conservatives.

NoAmnesty 6 years ago

The provision in the Constitution that makes all persons born on American soil American citizens was meant to ensure that all emancipated slaves would be considered citizens. I doubt that this is a great issue anymore. It now serves as a means for persons who are here illegally to get government benefits in the name of their child who is an American citizen. The worst reason for doing something is because it has "always been done that way." Times have changed and that provision needs to go.

jk 5 years ago

There are many problems and very little solutions.

I read up on the cases noted here and the problem is that no one is enforcing the final ruling of the Supreme Court of the US. The current ruling is that native-born children of LEGAL RESIDENTS (but foreign citizens) of the US are US citizens.

No one wants to enforce the ruling because everybody assumes that the child is a US citizen when infact it isn't. It's just like babies who are born to married couples. It is automatically assumed that the married couple are the parents when infact the baby may not belong to the father.

Everybody just assumes but and that's making an arse out of you and me.

kschang profile image

kschang 5 years ago from San Francisco, CA, USA Author

Many states are now taking action... Over a dozen states intends to change their law to require any new baby to have at least ONE legally resident parent in order to get legal citizenship in that state, in order to push the US Supreme Court to make a final decision on this issue.

Here's one such editorial on this very topic:

However, it seem to have quoted the wrong cases, or at least failed to understand the implications.

In the 1898 case, it specifically said "of resident aliens", which means LEGAL residents.

I'll be adding a section on Plyler vs. Doe (1982)

francisid 5 years ago

if they would be given citizenship but their parents are illegal immigrants,who would take care of the children? would the State spend money for the children of illegal immigrants?

kschang profile image

kschang 5 years ago from San Francisco, CA, USA Author

1) Under the current system, all children born in the US (over the border) are considered US Citizens. Their parents' status are irrelevant now.

2) Parents have other relatives and friends in the area. You do not arrive in the US completely without connections. Furthermore, INS is usually slow to deport illegal immigrant parents of younger children born in US due to humanitarian reasons. Some call this "anchor baby" tactic.

3) State is being required to spend money on US citizen children of illegal immigrant parents. It is the law, and it is equality.

francisid 5 years ago

then,there's no wonder why illegals result to having anchor babies.they are indeed a great help.

hazelickes profile image

hazelickes 5 years ago

A recent Rasmussen poll showed 61 percent of Americans want birthright citizenship ended, 28 percent are opposed to ending it, and 11 percent undecided. This strong support is partly a public reaction to the discovery of birth tourism businesses, with foreigners entering the country for the sole purpose of giving birth to a baby that becomes an automatic citizen.

Jessicapotter24 profile image

Jessicapotter24 5 years ago from Los Angeles, California

Great hub!! Very informative and effective!Two things that caught my attention were -'If you violated immigration laws, can you really be considered to have been "subject to jurisdiction" of the United States?' and' While a children should not be punished for their parent's sins, the parents should not benefit from children's birthright either. By making the children permanent resident, with automatic citizenship upon turning 18, the parents cannot use the citizenship of their children as bargaining chip, while not taking away too many rights of the child'. Very very valid arguments. I appreciate you for putting it up so effectively.

When the parents are here on an illegal status the child that is born to them in the US need not be given automatic citizenship. Instead the choice can be given to the child when he/she turns 18. Until then, only the basic rights should be allowed. We cannot punish the child for no fault of his/hers. At the same time , we cannot shower them with all the natural priveleges.

camdjohnston12 profile image

camdjohnston12 5 years ago

Great information.

iris 4 years ago

U should fight for citizenship...everyone

Elizabeth 4 years ago

Yes to citizenship for birthrights :)

jEmSSnn01 4 years ago from NY

Great hub..I'm interested in this topic as I'm searching for information on constitution and this is one of the topic that I need to cover. Thanks. 

sandy v. 4 years ago

im pro and con. i think they should be given citizenship because just like any other american here who is citzen most of our parents arent even natural born americans, they migrated from somewhere illegally yet this law cant be retroactive! so why now to these children.its unfair. and it is breaking the law to come in illegally but then again, were focusing on those breaking the law of "immigration" but what about those citizens or natural bor americans here in us who are breaking other laws constantly?and live 50%time in prison?and come out and get on welfare, aid, housing, schooling, drug rehab, counseling, that's using up our tax money too for someone who broke a worse law maybe killed, robbed, vandalized, raped, abduction, etc...shouldn't we strip their citizenship and keep em without status and or benefits? and im pro on issue because on other hand, i have kids and those illegals having kids here on cutting the line of my kids career, jobs, education, healthcare, benefits, grants, scholarships$, and less is being offered to citizens.

liz 4 years ago

The issue at hand here is birthright citizenship. It's important to recognize that, whether or not they keep their citizenship, it's still going to cost money.

Most importantly, our economic crisis is an important issue we need to work on. Remember that it cannot be blamed solely on "illegal" immigrants being here. If you do some research, you would understand ALL of the factors that contributed to the crisis.

andrea 4 years ago

Nobody in this country are native citizen remember we are immigrants. All of you have someone who come to this country from another part of the world so what you talkibg about . The only one who can claim they are natives you know is the natives like Cherokees, etc.. so don't feel like u have the right to say who deserves to be citizen or not.

kschang profile image

kschang 4 years ago from San Francisco, CA, USA Author

@andrea -- while it's a fine sentiment, the US Constitution defines "citizen" quite differently.

Lolly lanky 4 years ago

Thk u true talk.

John Costa 2 years ago

No way should they be considered American. Just because you are born in a country doesn't make you a citizen. Can you do that in Canada,England, France, Germany, China, Russia, India, or any country south of California? The answer is HELL NO! They do not allow it period!

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