Should Illegal immigrant’s children receive citizenship at birth?
New legal storm just came to town. Current immigrant caravans have gathered over 20,000 people and a new one has just formed. Media announced that President Trump wanted to end birthright citizenship and instantly claimed that the administration does not have the authority to do so.
Why does that matter?Not surprisingly based on what happened in the past two years, there will be legal challenges to any administrative action which seeks to deny birthright citizenship to the offspring of illegal immigrants. The outcome will influence participants in their decision to join current and future *immigrant caravans*toward the USA.
What does 14th amendment to US constitution say about that?The media quoted 14th amendment as their base for argument. 14th Amendment to the US constitution states: *All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United Sats and of the state wherein they reside.* Clearly, whether the current administration is on solid legal ground to regulate eligibility of citizenship is in the phrase * and subject to jurisdiction thereof*.
What is interpretation of SCOTUSSCOTUS has never explicitly interpreted the phrase as children born in the United States to illegal immigrant parents are entitled to birthright citizenship. Instead, it demonstrates the application of the 14th amendment withthe three-prong test in US v. Wong in 1989, thirty years after the 14th amendment became law. It holds that a person becomes a citizen of the United States at the time of birth per the 14th Amendment, if at a minimum that person:
a) Is born in the United States.
b) Has parents that are subjects of a foreign power, but not in any diplomatic or official capacity of that foreign power.
c) Has parents that have permanent domicile and residence in the United States.
What does that entail?It would appear that the current Administration may quote this test as interpretation of the 14th amendment and as its legal base to regulate citizenship qualification process. To understand whether the current administration has power to deny birthright citizenship for illegal immigrants, we need to examine the prong 3 of the test closely.
*Congress has defined "permanent" as "a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law." and "residence" as "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.*
Black's Law Dictionary (considered as standard legal reference, but not a binding authority) defines "domicile" as "A person's legal home. That place where a man has his true, fixed and permanent home, and to which whenever he is absent he has the intention of returning.*
The US State Department's Foreign Affairs Manual (8 FAM 301.1-1.d) states even children born in the USA of illegal immigrants are citizens. However, the FAM is not law, but simply an agency employee manual. The FAM is not codified in the US Code (USC) or Code of Federal Regulations (CFR), so the FAM itself is not a binding legal authority.
What will the government say?The current Administration may argue that , by the existing statutory definitions of "permanent" and "residence" including Blacks definition of "domicile."illegal immigrants may have a temporary residential relationship based on the moment by physically being within the USA, but no principal or lasting residential relationship equating a legally permanent, legal abode by virtue of not having a lawful *permanent domicile and residence* in the USA, therefore, illegal immigrants* children are not eligible for citizenship at birth.
Conclusion is there is no conclusionIt*s also possible that SCOTUS chooses not to hear any challenge at all, stating the issue has been already addressed in prior SCOTUS decisions. Congress can always initiate legislation which defines key terms in the 14th Amendment - an action which the Amendment authorizes. No matter what happens, there will be ripple effects, both legal and social.