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  1. Does Birthright US Citizenship Depend on Parents' Status? By Roger Algase

    In my last (August 28) post, I examined an argument which is frequently used by opponents of birthright US citizenship to the effect that the 14th Amendment to the US Constitution was only meant to guarantee this right to African-American children, who had been denied citizenship under the infamous pre-Civil War Dred Scott decision, but was not meant to protect US born children belonging to other ethnic groups. I showed that under the landmark Supreme Court decision in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the 14th Amendment was meant to guarantee birthright citizenship to all U.S. born children (with certain very limited exceptions, such as the children of foreign diplomats), regardless of race or color.

    I will now turn to another myth which is popular among birthright citizenship opponents, namely that the 14th Amendment makes birthright US citizenship for American-born children dependent on the citizenship or immigration status of their parents. According to this argument, the phrase "subject to the jurisdiction" of the United States in the 14th Amendment was meant to exclude the US-born children of unauthorized immigrants, or even of foreign citizen parents who are in the US legally, from the guarantee of birthright US citizenship.

    In its most extreme form, this argument is phrased by Attorney Ken Klukowski, writing for the right-wing breibart.com as follows:

    "A person who is 'subject to the jurisdiction' of the United States is a person who is not 'subject to any foreign power' - that is a person who was entirely native to the United States, not the citizen or subject of any foreign government."

    http://www.breitbart.com/big-governm...ht-citizenship

    It is true, as Klukowski contends, that there was US legislation in effect at the time the 14th Amendment was adopted containing the above restrictive language. and that, arguably, that language might be subject to the far-reaching interpretation that he gives to it. But this restrictive phrase was in the 1866 Civil Rights Act, not the 14th Amendment, which left the "subject to any foreign power" language out.

    It is important to avoid confusing the 1866 statute, which has long since been superseded, with the 14th Amendment to the Constitution, which is still in effect.

    Since the above restriction was not in the 14th Amendment, which was adopted in 1868, the Supreme Court, in Wong Kim Ark, supra, held that the purpose of the 14th Amendment was merely to reaffirm the English common law of citizenship, which was the basis of American citizenship law and had been in effect in England for centuries before the US Constitution was adopted.

    Therefore, the Wong decision cited the common law Commentaries of Chancellor Kent with approval as follows:

    "Natives
    [i.e. citizens] are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors..." (Italics added.)

    This might come as a disappointment to Donald Trump. the anti-birthright citizenship jihadists at breitbart.com and to some other politicians and pundits who are attempting to make birthright citizenship a campaign issue, but absent the extremely unlikely event that this 117-year old precedent could be one day overruled, it is the law of this land that parents' nationality or immigration status is completely irrelevant to the Constitutional guarantee of birthright American citizenship to all children born in the US.

    My upcoming post will delve further into the meaning of "subject to the jurisdiction", as interpreted by the US Supreme Court in Plyler v. Doe (1982).
    ___________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping mainly skilled and professional immigrants obtain work visas, green cards, and US citizenship. His email address is algaselex@gmail.com

    Updated 09-04-2015 at 10:47 AM by ImmigrationLawBlogs

  2. BALCA Determines that Employer-Provided Survey is Acceptable Without Arithmetic Mean

    Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether the National Prevailing Wage Center (“NPWC”) Director has the discretion to reject an employer-provided wage survey that does not include an arithmetic mean wage. The employer submitted a prevailing wage determination for the position of “speech language pathologist” and requested that the NPWC consider a wage survey from Compdata Survey. This survey provided a median wage, but did not include an arithmetic mean wage “because doing so would have violated guidance issued by the Department of Justice for ‘Statements of Antitrust Enforcement Policy in Health Care.’” The NPWC rejected the use of the survey because it failed to include an arithmetic mean wage. This decision was appealed on the question of whether the NPWC Director has the discretion to refuse to consider an employer-provided wage survey that did not contain an arithmetic mean wage. BALCA noted that “neither the applicable regulations nor the guidance document require an employer-provided survey to offer the arithmetic mean wage whenever the data to do so may be available. There is also no regulation or guidance that requires an employer provided survey to take extra measures to ensure that the arithmetic mean wage is offered.” Rather, the regulations provide that if a “survey provides a median and does not provide an arithmetic mean, then the prevailing wage applicable to the employer’s job opportunity ‘shall be the median of the wages of workers similarly employed in the area of intended employment.’” Consequently, the decision of the NPWC Director was determined to be an abuse of discretion and was remanded. This case provides critical information to employers who may employ greencard candidates in locations or sectors that cannot provide an arithmetic mean wage. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

  3. Birthright Citizenship Foes Give New Meaning to Latin Pejorative. By Roger Algase


    The ancient Latin noun meretrix means "prostitute" and is the origin of the English adjective: meretricious. Collins Dictionary defines meretricious as: false, hollow, bogus, put-on, mock. sham, pseudo, counterfeit, spurious, deceitful, insincere, specious, phoney or phony.

    All of the above adjectives could well be used to describe an argument against upholding the 14th Amendment's grant of birthright citizenship to all US-born children (except the children of foreign diplomats) regardless of their parents' race, nationality or immigration status, which is now being peddled by restrictionistas under the guise of objective scholarship and research into comparative law.

    This argument is that since most countries of the world (outside of our own Western Hemisphere, which generally follows US practice), do not recognize birthright citizenship for all children born in their territory, but instead base citizenship rights on the parents' race, religion, national origin, or other status, the United States might have something to learn from their example and should consider abolishing the 14th Amendment's birthright citizenship guarantee.

    This proposal, which is obviously aimed at denying citizenship to the children of Latino and Asian immigrants, as presidential candidates Donald Trump and Jeb Bush now openly admit, is so lacking in good faith that it might have made an ancient Roman meretrix blush with shame.

    For example, this is how House Judiciary Committee Chairman Bob Goodlatte (R-Va.), a former immigration lawyer, framed his suggestion that it might be a good idea to consider tampering with the Constitution of the United States of America in order to turn millions of American-born children into pariahs with no legal status in this country at all. Here is an extract from his opening statement made at hearings on birthright citizenship conducted by the House Subcommittee on immigration and Border Security on April 28:

    "Very few countries with advanced economies have a policy of birthright citizenship. In fact, of the G20 countries, only the United States, Canada and Mexico automatically grant citizenship based on the individual being born in the country, despite the citizenship or immigration status of the parents. That is not to say that just because other countries do not have a certain policy or law, the U.S. should not have that policy or law. But as members of Congress, we should have an open and honest discussion about the consequences of automatic birthright citizenship.

    So far, this sounds as if Rep. Goodlatte is getting ready to launch a neutral study, or maybe to write a law review article, on the international law of citizenship. Who could argue with that? But then he goes on to show his true motives, namely to cater to and stir up animosity against Mexican and other Latino immigrants ("illegals"), as well as Asians ("birth tourists"):

    "Evidence suggests that automatic birthright citizenship incentivizes illegal immigration and abuse of U.S. immigration law and policy. And extremely troubling is the rise of the birth tourism phenomenon in which pregnant women from foreign countries briefly come to the U.S. specifically to give birth here so their children become U.S. citizens."

    Yes, Congressman, I am sure that you and your supporters must be extremely troubled by the fact that a very few thousand Chinese women every year who come to the US as legal visitors and then return to China with their babies after giving birth in the US can enable these children to become American citizens by birth. Sure. isn't preventing that kind of "abuse" ("too many" Asian children becoming American citizens) the reason why we once had the Chinese exclusion laws, at one of the darkest, most prejudiced times in our history? Do you want to bring those laws back?

    In an upcoming post, I will discuss an August 27 Huffington Post article, These Countries Show Why Losing Birthright Citizenship Could Be A Disaster, which illustrate exactly how severe the consequences can be of not recognizing birthright citizenship for all children. The countries mentioned are Germany, Japan, Dominican Republic and Kuwait.

    Finally, as a disclaimer, I do not in any way mean to compare public figures in either party (see Matt Kolken's reference to Democratic Senate Minority Leader Harry Reid in his comment below) who try to put a respectable gloss on their appeals to prejudice by pretending to be concerned only with research into international law (or, in Harry Reid's case, with saving taxpayers' money), when their real purpose, based on their statements, is more likely to be tearing up the Constitution and abolishing birthright citizenship for millions of American-born Latino and Asian children, with a meretrix in classical Roman times.

    She, at least, was selling something genuine.
    ___________________________
    Roger Algase as a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants obtain work visas, green cards and US citizenship for more than 30 years. His email address is algaselex@gmail.com





    Updated 08-29-2015 at 02:36 AM by ImmigrationLawBlogs

  4. GOP Candidates' Birth Citizenship Dilemma: Bigotry or Constitution? By Roger Algase

    Update: August 27, 9:02 am

    Jeb Bush has also drawn criticism for using the racist "anchor babies" slur against Asian immigrants from an unlikely source: none other than Donald Trump himself.

    POLITICO's immigration reporter, Seung Min Kim, in her article Immigration experts: Jeb Bush had a point on 'anchor babies (August 26) quotes The Donald as saying this about his rival for the Republican Presidential nomination:

    "In a clumsy move to get out of his 'anchor babies' dilemma, where he [Jeb Bush] signed that he would not use the term and now uses it, he blamed ASIANS...Asians are very offended that JEB said that anchor babies applies to them as a way to be more politically correct to Hispanics. A mess!"

    http://www.politico.com/story/2015/0...es-121744.html

    Apparently the Republican party is offering the voters a choice for 2016 between two leading presidential candidates - one who is running on anti-Latino hate and another who is trying to exploit anti-Asian bigotry. One also has to wonder what kind of "immigration experts" could possibly support using the highly offensive and derogatory "anchor babies" term about anyone.

    Trump has also been quoted as having praised DREAMER's and boasted about hiring unlawful immigrants to work for him as recently as two years ago. See:

    http://buzzfeed.com/adriancarrasquil...donald-trump-h...

    Update: August 26, 10:20 am:

    The Latino Victory Project has issued a statement strongly condemning Republican presidential candidate Jeb Bush for his use of bigoted term "anchor babies" to refer to the US citizen children of unauthorized Mexican and other Latino immigrants, as well as his "derisive" comments about Asian women who travel to the US with legal visas in order to give birth to their children in this country so that they can be American citizens.

    See:

    http://www.latinovictory.us/press-re...rant-comments/

    My original post follows:

    Some of the leading Republican presidential candidates are trying themselves up in knots trying to make campaign bigotry over birthright citizenship square with the provision of the 14th Amendment stating that all children born in the US and subject to its "jurisdiction" (i.e. laws, as will be explained in my upcoming post regarding the Supreme Court case of Plyler v. Doe (1982)) are citizens of the United States by birth.

    First, there is Jeb Bush. Bush, evidently afraid of being labeled as an anti-Hispanic bigot for opposing birthright citizenship, has now made clear that he is not bigoted against Latino immigrants, but only against Asian ones.

    The Huffington Post reports on August 24:

    "GOP presidential hopeful Jeb Bush claimed on Monday that his use of the term 'anchor babies' was not offensive because he was referring to the practice of people, primarily Asians, coming to the U.S. and 'taking advantage' of birthright citizenship."

    Bush used the term last week in an interview with conservative radio host Bill Bennett in reference to 'birth tourism', which is the growing phenomenon of Chinese women paying agencies to bring them to the U.S. to have their babies so that they can grow up as American citizens."

    Governor Bush, evidently, needs to study up a bit on the history of the Chinese exclusion laws, which provided that no Chinese immigrant could become a naturalized US citizen. He might also wish to ask one of his advisors to tell him about the Supreme Court's 1898 decision in U.S. v. Wong Kim Ark, in which the US government argued that a child born in the US to Chinese parents who were barred by law from becoming US citizens themselves (even though legally residing in the US) was not a citizen by birth.

    The Supreme Court rejected the US government's argument and ruled that the 14th Amendment meant what it says, and that its guarantee of birthright citizenship applied to all children born in the US.

    It remains to be seen if Bush's attempt to substitute late 19th century anti-Asian bigotry in place of 21st century anti-Latino bigotry will help clarify his position on birthright citizenship. See:

    http://www.huffingtonpost.com/entry/...-babies_55db81...

    Meanwhile, Donald Trump, ignorant and bombastic as ever, says that he doesn't think that children born in the US to unlawful immigrant parents are US citizens, and that some "very, very good lawyers" agree with him. He didn't name the lawyers, possibly out of an uncharacteristic scruple about potential damage to their reputations.

    One has to ask whether any lawyer who talks about 14th Amendment birthright citizenship without having read Wong Kim Ark and Plyler v. Doe, as Trump's above mentioned lawyers obviously have not, or they could never agree with Donald Trump's above statement, deserves to be called a good lawyer, or even a competent one. See:

    http://www.cnn.com/2015/08/19/politi...n-citizenship/

    Perhaps Ted Cruz, another Republican presidential candidate, who also now opposes birthright citizenship, is in the most difficult position of all. As a Harvard Law School graduate, he would be seriously embarrassed if he came right out and said that birthright citizenship for all children born in the US, regardless of parents' status or citizenship is not guaranteed by the 14th Amendment.

    Cruz knows that this is not true, and said so in a 2011 interview, as reported by the Huffington Post. See:

    Ted Cruz Once Said It Was A 'Mistake' To Try to End Birthright Citizenship (August 20)

    http://www.huffingtonpost.com/entry/...b0ab468da01952

    According to the Huffpost story, Cruz said the following at the 2011 interview about birthright US citizenship for all US-born children:

    "I've looked at the legal arguments against it, and i will tell you as a Supreme Court litigator, those arguments are not very good...As much as someone dislikes the policy of birthright citizenship, it's in the U.S. Constitution."

    Indeed it is, Senator. It was in the US Constitution in 1868, when the 14th Amendment was adopted. It was in the U.S. Constitution in 1898, when Wong Kim Ark was decided. It was in the Constitution when Plyler v Doe was decided in 1982. And it is still in the Constitution now.

    That is the dilemma for anti-birthright citizenship 2016 Republican presidential candidates - whether to follow the Constitution of the country they are hoping to lead, or whether to disregard the Constitution in an effort to pander to bigoted voters in their party's base.
    _____________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants obtain work visas, green cards, and US citizenship for more than 30 years. His email address is algaselex@gmail.com






    "

    Updated 08-27-2015 at 01:14 PM by ImmigrationLawBlogs

  5. Supreme Court Has Rejected Attempts to Limit Birthright Citizenship. By Roger Algase


    This post will continue my August 21 post, in which I introduced the topic of two egregious distortions of the 14 Amendment's guarantee of birthright citizenship for virtually all US born children, regardless of their parent's nationality or immigration status in the United States. I also suggested that America's history of racism and prejudice against unpopular minorities, such as African-Americans during the time of slavery, Chinese and other Asians during the time of the exclusion laws in the late 19th and early 20th centuries, and Latino and other "third world" immigrants today, has had a great deal to do with attempts to impose unreasonably narrow, distorted interpretations of our laws relating to qualifications for birthright US citizenship.

    I will now examine two of the distorted readings of the 14th Amendment which some immigration opponents, including a number of Republican presidential candidates, are using as arguments to restrict birthright citizenship in order to exclude the US born children of unlawful, or even legal temporary, immigrants, from Constitutional protection.

    (According to the Huffington Post, Wisconsin Governor Scott Walker has reportedly just opted out of this legal charade in an interview with George Stephanopoulos, showing that Walker, though an anti-immigrant hard liner in other respects, has more integrity and common sense than some of his rivals.)

    The first argument being bruited about by the restrictionistas is that the 14th Amendment was only meant to confer birthright US citizenship on the children of African American former slaves, or African Americans in general, but not on children of other ethnicities.

    This argument is utter nonsense, as shown by long standing Supreme Court precedent.

    The first section of the 14th Amendment to the Constitution begins:

    "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."​

    Since even Donald Trump would have to admit that the children of unauthorized immigrants are persons, and that a baby who is born in any one of the 50 states (yes, Donald, including Hawaii) is born "in the United States" (with the only exception, according to Trump's "birther" ideology, being President Barack Obama), the only phrase that the restrictionistas can seize on in order to try to limit the scope of the amendment is the phrase: "subject to the jurisdiction thereof".

    If the 14th Amendment had tracked the language of the 1866 Civil Rights Act, enacted in order to overturn the notorious 1857 Dred Scott decision which had held that no person of African descent could ever become a US citizen, there might have been at least a marginally tenable argument to the effect that the amendment was meant to guarantee birthright citizenship to African-American children only, not the children of immigrants.

    This argument was in fact used against granting birthright citizenship to the children of Chinese immigrants, who were barred by law from becoming naturalized US citizens beginning in the late 19th century. However, the 14th Amendment did not follow the language of the 1866 Civil Rights Act.

    The 1866 Civil Rights Act provided that:

    "all persons born in the United States and not subject to any foreign power..." (Italics added) were citizens of the US. (There was a specific exception for Native Americans who were exempt from taxation.)

    That clause, admittedly, could have been read to exclude the children of Mexicans, Chinese, and other immigrants, who were arguably subject to a foreign power, under the citizenship laws of the various countries of their parents' birth. However, even under that statute, it was clear that African-Americans were not the only ethnic group that was intended to benefit from the guarantee of birthright citizenship. The 1866 Civil Rights law also provided:

    "and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude...shall have the same right..." (Italics added.)

    Therefore even though the primary purpose of this statute may have been to guarantee birthright citizenship to African-American former slaves, they were by no means the only people who were intended to benefit from this law.

    Moreover the 14th Amendment, as shown above, did not include the restrictive language of the Civil Rights Act, excluding US born children who were subject to a foreign power from birthright US citizenship. Instead it only contained a requirement that US born children must be subject to the jurisdiction of the United States.

    As the Supreme Court emphatically held 114 years after enactment of the 14th Amendment, in the 1982 case of Plyler v. Doe, 457 U.S. 212, subject to the jurisdiction means being subject to the laws of the United States. This decision also held, as will be discussed in more detail in an upcoming post, that the above term includes immigrants, even those who are in the US without legal status.

    ("Jurisdiction" is derived from the Latin words for "law" and "to say". In ancient Rome, it only referred to authority to say what the law is, i.e. to render judgment. It had nothing to do with the concept of allegiance or citizenship. Citizenship may have affected the contents of a judgment, but not the power to render it. St. Paul, for example, was exempt from crucifixion due to his Roman citizenship, but was executed anyway - by beheading, a procedure still carried out only a few days ago among ancient Roman ruins by ISIS, against an 82-year old archaeologist.)

    If there had ever been any doubt about the fact that the 14th Amendment's guarantee of birthright citizenship was meant to include US-born children of every ethnic background, not just African-Americans, the Supreme Court laid this question to rest long ago in the 1898 case of US v. Wong Kim Ark, 169 U.S. 649. as follows:

    "Its [the 14th Amendment's] main purpose doubtless was, as has often been recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford (1857) [citation omitted]...But the opening words "All persons born" are general, not to say universal, restricted only by place and jurisdiction, and not by color or race - "

    So much for the baseless, meretricious argument that the 14th Amendment's guarantee of birthright citizenship for all US born children was only intended to include the descendants of African-American former slaves.
    __________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants obtain work visas, green cards and US citizenship for more than 30 years. His email address is algaselex@gmail.com

    Updated 08-24-2015 at 08:56 AM by ImmigrationLawBlogs

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