The Citizenship Clause and Jus Soli Citizenship (Citizenship by Birth in the United States)

Jus Soli Citizenship

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Introduction: Jus Soli Citizenship in the United States

This article will explain the rules for jus soli citizenship, or citizenship by virtue of the place of birth, in the United States. With a limited exception for children of certain diplomatic officials, any person who is born in the United States gains citizenship at birth. Because this applies regardless of the immigration status of the parents, the United States has extremely generous citizenship acquisition laws in this regard. In this article, we will look at the United States Constitution, important case law, statutes, and regulations to examine how jus soli citizenship in the United States works.

To learn more about the history of the Citizenship Clause and the debate over its proper interpretation, please read my blog about contrary interpretations of the Citizenship Clause of the Fourteenth Amendment [see blog].

The Constitution and Statutes on Jus Soli Citizenship

Section 1 of the Fourteenth Amendment of the United States Constitution provides that:

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.”

The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to persons born within the United States and “subject to the jurisdiction thereof.” The Amendment was written to supersede the Supreme Court's decision in Dred Scott v. Sandford, 60 U.S. 393 (1856) [PDF version] which held that African-American slaves were not citizens under the meaning of the U.S. Constitution.

This Constitutional provision is repeated in section 301(a) of the Immigration and Nationality Act (INA) which defines as persons who shall be “nationals and citizens of the United States at birth”:

[A] person born in the United States and subject to the jurisdiction thereof.

Furthermore, section 301(b) adds:

[A] person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property.

Section 301(b) is significant because Supreme Court precedent found in Elk v. Wilkins, 112 U.S. 94, 99-103 (1884) [PDF version] held that the Fourteenth Amendment's Citizenship Clause does not include Native Americans. However, this was superseded by the Indian Citizenship Act of 1924 and the relevant statute is now found in section 301(b).

In order to gain a complete understanding of the citizenship clause and the related provisions in the INA, we must work through certain terms that show up in the relevant provisions.

Exception: Foreign Diplomatic Officers

Persons who are born in the United States and subject to the jurisdiction thereof are automatically citizens at birth. This begs the question: Is it possible to be born in the United States and not subject to the jurisdiction thereof?

The answer is yes. Children born in the United States of foreign nationals serving in certain diplomatic capacities do not acquire U.S. citizenship by virtue of being born in the United States.

For example, the Supreme Court in the Slaughter-House Cases, 83 U.S. 36 (1872) [PDF version] stated that the Citizenship Clause excludes “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” In the landmark Supreme Court decision U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) [PDF version], the Supreme Court interpreted “in the jurisdiction thereof” to exclude those born to foreign nationals serving in a diplomatic capacity in the United States.

The rules are explained in regulations found in 8 C.F.R. 101.3. Under 8 C.F.R. 101.3(a)(1), a person born in the United States to a foreign diplomatic officer accredited to the United States is not “subject to the jurisdiction of the United States” and is therefore not a U.S. citizen at birth (however, he or she may obtain lawful permanent resident (LPR) status at birth). 8 C.F.R. 101.3(a)(2) defines a “foreign diplomatic officer” as a person listed in the State Department Diplomatic List. This includes “ambassadors, ministers, charges d'affaires, counselors, secretaries, and attaches of embassies and legations as well as members of the Delegation of the Commission of the European Communities.” Additionally, the term “foreign diplomatic officer” also includes “individuals with comparable diplomatic status and immunities who are accredited to the United Nations or to the Organization of American States, and other individuals who are accorded comparable diplomatic status.”

However, under 8 C.F.R. 101.3(b)(1), a person born to the employee of a foreign diplomatic mission whose name appears in the State Department list titled “Employees of Diplomatic Missions Not Printed in the Diplomatic List” is considered to be “subject to the jurisdiction of the United States” and a citizen from birth. The regulation describes such individuals as having “certain diplomatic immunities” but as not being “foreign diplomatic officers” as defined in 8 C.F.R. 101.3(a)(2). 8 C.F.R. 101.3(b)(2) adds to the list of individuals who are not “foreign diplomatic officers” “[f]oreign government employees with limited or no diplomatic immunity such as consular officers named on the State Department list entitled 'Foreign Consular Officers in the United States' and their staffs.”

Meaning of “In the United States”

Under 8 C.F.R. 215.1(e), the term “United States” means:

The States of the United States
District of Columbia
Puerto Rico
U.S. Virgin Islands
Guam
American Samoa
Swains Island
Commonwealth of the Northern Mariana Islands

Persons who are born in a state of the United States or in the District Columbia and who are subject to the jurisdiction of the United States are U.S. citizens from birth by function of the Citizenship Clause.

By statute, persons who are born in the following territories after the specified dates and who are subject to the jurisdiction of the United States are U.S. citizens from birth:

Under section 302 of the INA, such persons born in Puerto Rico after January 13, 1941, are U.S. citizens from birth.
Under section 306 of the INA, such persons born in the Virgin Islands after February 25, 1927, are U.S. citizens from birth.
Under section 307 of the INA, such persons born in Guam after August 1, 1950, are U.S. citizens from birth.
Such persons born in the Commonwealth of the Northern Mariana Islands after January 9, 1978, are U.S. citizens from birth.1

Nationals, but not Citizens, from Birth

Under section 301 of the INA, every person who is a U.S. citizen is also a U.S. national. However, it is possible under limited circumstances to be a U.S. national but not a U.S. citizen.

Multiple Courts have held that if there is no statute saying otherwise, persons born in unincorporated territories are not automatically U.S. citizens from birth under the Citizenship Clause. The Second, Third, Fifth, and Ninth Circuits have held that persons born in the Philippines before 1946 (when it was an unincorporated territory) were not U.S. citizens at birth under the Citizenship Clause.2

Currently, under section 308 of the INA, persons born in either American Samoa or Swains Island are U.S. nationals from birth, but not U.S. citizens. A U.S. may travel to, reside in, and work in any part of the United States. However, he or she may not vote in U.S. elections even if he or she lives in a state or in the District of Columbia. Nationals may apply for naturalization. The D.C. Circuit held in Tuana v. U.S. 788 F.3d 300 (D.C. Cir. 2015) that the Citizenship Clause does not extend to persons born in American Samoa.

Accordingly, citizenship for persons born in unincorporated or formally unincorporated territories may be extended by statute, it is not considered to be automatically extended by virtue of the Citizenship Clause.

Important Case Law: Wong Kim Ark and the Matter of Cantu

Wong Kim Ark

The most important judicial precedent for interpreting the Citizenship Clause of the Fourteenth Amendment is the Supreme Court decision rendered in 1898 in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) [PDF version].

Wong Kim Ark concerned a man, Wong Kim Ark, who was born in San Francisco to permanent resident Chinese parents who were still citizens of China and accordingly owed allegiance to the Emperor of China. The man was prevented from entering the United States after taking a trip abroad to China under the assertion that he was not a citizen of the United States. He was denied entry under the Chinese Exclusion Act.

However, the Supreme Court held that he was indeed a U.S. citizen because he was born in the United States and subject to the jurisdiction thereof. The Court noted that Wong Kim Ark's parents were permanently domiciled in the United States, and were not in the United States in a diplomatic or official capacity on behalf of the Emperor of China. Therefore, the provisions of the Chinese Exclusion Act were inapplicable to Wong Kim Ark, and he acquired citizenship under the Citizenship Clause by virtue of his birth in the United States to parents who were subject to the jurisdiction thereof.

Wong Kim Ark's interpretation of the Citizenship Clause remains the law today. As we discussed in the previous section, Wong Kim Ark's holding has not been extended to persons born in unincorporated territories. However, it applies in full to persons born inside the United States (with the exception of persons born to foreign diplomats). It is important to note that unlike most of the decisions that we discuss in articles on this site, Wong Kim Ark interprets a provision of the United States constitution rather than a Congressional statute or administrative regulations.

Matter of Cantu

The Board of Immigration Appeals' (BIA's) precedent decision in the Matter of Cantu, 17 I&N Dec. 190 (BIA 1978) [PDF version] concerned a respondent who was placed into deportation proceedings for staying longer than authorized after being admitted into the United States as a temporary visitor from Mexico. The respondent had been born in 1935 at the Texas-Mexico in an area called the “Horcon Tract” boundary to parents who were both citizens and natives of Mexico.

The government conceded that the respondent was “born in the United States within the meaning of the Fourteenth Amendment,” but argued that he was not “subject to the jurisdiction thereof.” This was, because of a litany of reasons, the United States had not been exercising control over the area at the time of the respondent's birth due to boundary confusion. By the government's account, it had not asserted control over the Horcon Tract since 1906 (and the United States ceded the area to Mexico in 1972).

However, the BIA held that the fact the United States failed to exercise jurisdiction over the area did not mean that the area was not “subject to the jurisdiction thereof” as defined in the Fourteenth Amendment. Accordingly, the BIA found that the respondent was a U.S. citizen and accordingly could not be placed in deportation proceedings.

The Matter of Cantu is binding on all immigration courts and adjudicators.

Conclusion and Additional Reading

Under statute and the interpretation of the Citizenship Clause in Wong Kim Ark, any person who is born in the United States, save for the children of certain diplomats, automatically acquires U.S. citizenship at birth. This applies not only to births in the any state of the United States or Washington D.C., but also births in Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands. The immigration status or lack thereof of the parents has no bearing on a child's acquisition of citizenship at birth in these circumstances.3 Furthermore, under section 301(f) of the INA, a child of unknown parentage found in the United States while under the age of 5 is presumed to be a U.S. citizen by birth unless proven to have not been born in the United States before the age of 21.

If a person is born in the United States and subject to the jurisdiction thereof, citizenship is obtained at birth with or without documentation. If a person believes that he or she may be a U.S. citizen by function of birth, he or she should consult with an experienced immigration attorney. It is possible to obtain proof of citizenship by filing a Form N-600 or Form N-600K. We discuss the process on the site [see article].

In many cases, person born abroad to one or two U.S. citizen parents (or U.S. national parent(s)) may derive citizenship or nationality at birth. The provision for deriving U.S. citizenship at birth outside of the United States does not derive from the Citizenship Clause, but rather from statute. We discuss the rules for deriving citizenship at birth on site [see article].

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  1. Sabangan v. Powell, 375 F.3d 212 (9th Cir. 2004); Presidential Proclamation No. 5564, Nov. 3, 1986, 51 FR 40399
  2. Licudine v. Winter, 603 F.Supp.2d 129, 134-135 (D.D.C. 2009); Valmonte v. INS, 136 F.3d 914 (2d Cir. 1998); Lacap v. INS, 138 F.3d 518 (3d Cir. 1998); Nolos v. Holder, 611 F.3d 279, 282-84 (5th Cir. 2010); Friend v. Reno, 172 F.3d 638 (9th Cir. 1999)
  3. See e.g., INS v. Rios-Pineda, 471 U.S. 444 (1985) [see article] has been cited by some in recent years as a noteworthy case in this regard. However, the Supreme Court did not hold that children who are born in the United States to parents who are not in lawful status are U.S. citizens from birth. Rather, the Supreme Court simply noted that the children of two persons in the United States without status acquired citizenship by virtue of being born in the United States. While the Supreme Court did note this in the facts of the case, Rios-Pineda is not a particularly noteworthy case in the judicial canon on the Citizenship Clause because the issue of whether the children were citizens was not before the court. Please see the link in the footnote to learn more about the decision.

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1787, Print. Treatises & Primers.