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Should US Follow Foreign Restrictions On Birthright Citizenship?.By Roger Algase

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This comment will continue to discuss the topic of birthright US citizenship raised my April 30 Immigration Daily post. It will take a further look into this issue, especially from the standpoint of the motivations and alleged justifications by immigration restrictionists for either changing the Constitution (as many observers, including myself believe would be required), or passing a law (as a few analysts believe would be sufficient) to limit birthright citizenship to children of legal immigrants.

Some restrictionists want to limit US birthright citizenship even further - to US born children of American citizens or US permanent residents (green card holders). Under this proposal, even the US born children of legal immigrants holding temporary work visas such as H-1B or L-1, O-1 or E visas, would be deprived of this right.

Why should America change a policy which has been the law of this land at least since 1898, when the US Supreme Court, in US v. Wong Kim Ark, ​169 US 649, vigorously upheld the right to universal birthright citizenship, even for US-born children belonging to the most discriminated against immigrant minority group of that time, namely Chinese citizens, who were barred by law from ever becoming naturalized American citizens solely because of their race?

There are many restrictionist arguments for limiting birthright citizenship, but I will begin by dealing with one of the least persuasive of all, namely that most countries of the world evidently do not recognize universal birthright citizenship. My colleague Nolan Rappaport, a distinguished legal scholar with extensive immigration experience as a Congressional staff expert in this field, in a May 7 Immigration Daily letter, cites a 2010 study claiming that out of 194 countries of the world, only 30 recognize universal birthright citizenship for children born within their territory. For that reason alone, he suggests taking a look at the possibility of bringing America closer to the international majority, rather than the minority, on this issue.

Nolan's letter does not mention that the study in question is from the misleadingly named "Center For Immigration Studies" ("CIS") which is not an objective study group at all, but one of America's most vocal anti-immigrant organizations, with a whole arsenal of axes to grind on this issue. The "study" (by Jon Feere) also contains some egregious distortions of the Constitutional history of and status of birthright citizenship, which I am afraid that Mr. Feere expanded on and made even worse in his April 29 testimony before the highly ideological, anti-immigrant House Judiciary Committee Subcommittee on Immigration and Border Security, which I will discuss in a future comment.

Let us, however, for the purpose of argument, accept the CIS figures of 30 nations which accept universal birthright citizenship as opposed to the rest which do not. What difference does that make? Why does America, a country that almost all restrictionists (and many other Americans as well) regard as exceptional, and which clearly is exceptional in terms of recognizing freedom and equality for all people, need to conform to the majority on this particular issue? Do we make our laws on any other subject by taking a head count among other countries? I have never heard of anyone making such an absurd suggestion, no matter how enlightened the laws of some other nations might be on specific issues (such as, for example, universal single payer medical coverage).

Even if there were any valid reason to do so, the CIS study that Nolan refers to shows that the US is in a very distinct majority in our own Western Hemisphere on this point. Every single one of the 30 countries that CIS mentions as supporting universal birthright citizenship is in North America, Central America, South America or the Caribbean. The only exception is Fiji. What is wrong with being in the majority in the new world, if not the old world? Isn't this why America was founded in the first place?

But even assuming that the citizenship laws of the "old world" of Europe, Asia and Africa have any relevance for the US, which old world countries' legal systems would Nolan hold out to America as models? Saudi Arabia, where women are not allowed to drive, criminals can have their heads cut off in public and a dissident was recently sentenced to receive 1,000 lashes for "insulting" Islam?

Syria, Iraq and Libya, where in many areas, ISIS is the only law? South Africa, which is now reportedly plagued by violence against immigrants from Asia and neighboring African countries? Burma and Thailand, torn as they are by ethnic conflict? Afghanistan? Pakistan? Nigeria, with its Christian/Muslim conflicts and its struggle against Boko Haram fanatics?

Russia, Uganda, and many other countries of the world which engage in open persecution against gays?

North Korea?! (which is also on the CIS list)? Who would even want to know what the birthright citizenship laws of these and many other countries with different systems and values from America's, or which are in danger be being torn apart by ethnic conflict are comprised of?

America is supposed to be an example to the rest of the world. What possible relevance do other countries' citizenship laws have to ours? And there is no doubt that CIS is referring to the laws of whole world as a model for America, not just the white countries of Europe which are now causing the deaths of thousands of people at sea by trying to keep desperate Middle Eastern and African refugees out.

(Mr. Feere, in his House Subcommitee testimony referred to above, appears to give particular weight to the fact that no European country, according to him, has universal birthright citizenship. While arguing that America should look at the laws of other countries around the world on this issue, his main interest seems to be in what other white countries are doing.

While arguing that the laws of all countries in the world should be given equal attention on this issue, it seems that in his view, European countries are more equal than others, just as he and CIS are arguing for restrictions on birthright citizenship and many other policies that would inevitably result in making European immigrants more equal than others in America.)

It is suggested that perhaps some of the many countries that do not recognize universal birthright may have good policy reasons for their restrictions, no matter how flawed the rest of their legal systems may be. Then let CIS and the other restrictionists tell us what these policy reasons might possibly be, other than to keep out people who do not belong to the majority ethnic group in whatever country is concerned.

Basing citizenship rights on favoring the country's ethnic majority over other ethnic groups may work for certain countries. From the point of view of the policy needs of many countries of the world, it may be legitimate to give citizenship privileges to the dominant ethnic group or groups that minority ethnic groups, including immigrants, do not have.

In many cases, however, the motive for denying universal birthright citizenship or subjecting it to conditions that favor one class of people over another (such as granting birthright citizenship only to children who have at least one citizen parent) is simply to pander to local anti-immigrant sentiment. If that is what politicians or rulers in a given foreign country wish to do, it is their right. But is there any reason why the US should import such attitudes or policies into our own citizenship laws?

Is excluding people from birthright citizenship because they do not belong to the ethnic majority, which is the effect, if not the avowed purpose, of citizenship laws of the world that do not recognize universal birthright citizenship, what we would like to see happen in the United States of America? Is that what is right for our society, our principles and our values, which hold that all people are created equal?

And is it permitted by the 14th Amendment to our Constitution? The answer is clear. Discriminating on the grounds of race with regard to the citizenship rights of US-born children is not permitted. That issue was settled definitively in the Wong Kim Ark case 117 years ago and it has been the law of the land ever since.

Some immigration opponents have argued for a distorted view of Wong Kim Ark, one that would limit its holding to the exact facts of that case, where the US-born plaintiff's parents were legally resident in the US at the time he was born (there being no such concept as an "illegal" immigrant at that time).

Under this view, stated in the conclusion to the CIS memo that Nolan's letter refers to, and also expanded in Jon Feere's above House Subcommittee statement without referring to a single court decision or other legal authority to support his statement that universal birthright citizenship can be abolished without amending the Constitution, the Wong decision left open the question whether the plaintiff would have been a US citizen at birth if his parents had been in the US illegally.

But, as my forthcoming post will show, the Supreme Court in that case was not concerned with the issue of parents' legal status. It was very concerned with the issue of whether the 14th Amendment permitted racial discrimination against any ethnic group with regard to birthright citizenship for US-born children.

The Supreme Court held that the 14th Amendment was intended to eliminate all such discrimination, not only discrimination against African-Americans, as some people argued then and others, incredibly, are still arguing today without the slightest justification.

My forthcoming comment will look in more detail at the Wong case, and at Mr. Feere's distortions, which must make any objective observer fear for the future of America's commitment to equal justice and racial equality in citizenship matters.
________________________________
Roger Algase is a New York lawyer and Graduate of Harvard College and Harvard Law School who has been representing employment-based and family based immigrants for more than 30 years. He is committed to protecting the legal rights of immigrants who are applying for work visas and green cards through employment or marriage, as well as other immigration or citizenship benefits. His email address is algaselex@gmail.com

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Updated 05-09-2015 at 08:54 AM by ImmigrationLawBlogs

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