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Citizenship As a Birthright: What the United States Can Learn from Failed Policies in the United Kingdom and Ireland [Note]

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Citizenship As a Birthright: What the United States Can Learn from Failed Policies in the United Kingdom and Ireland [Note] Citizenship as a Birthright: What the United States Can Learn from Failed Policies in the United Kingdom and Ireland [Note] Item Type Article; text Authors Booth, Venus Citation 28 Ariz. J. Int'l & Comp. L. 693 (Fall 2011) Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ) Journal Arizona Journal of International and Comparative Law Rights Copyright © The Author(s) Download date 26/09/2021 04:22:20 Item License http://rightsstatements.org/vocab/InC/1.0/ Version Final published version Link to Item http://hdl.handle.net/10150/658973 NOTE CITIZENSHIP AS A BIRTHRIGHT: WHAT THE UNITED STATES CAN LEARN FROM FAILED POLICIES IN THE UNITED KINGDOM AND IRELAND Venus Booth* I. INTRODUCTION The United States is one of the few countries that continue to grant birthright citizenship to any person born within its boundaries.' The right derives from the Fourteenth Amendment of the U.S. Constitution, which states, "[A]ll 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." 2 Reaffirmed in section 301 of the Immigration and Nationality Act, this right means that any person born in the United States is automatically a citizen.3 Thus, children born to illegal immigrants in the United States are U.S. citizens. Some believe that illegal immigrants are intentionally having children in the United States, not only to ensure that their children become U.S. citizens, but also to carve out a path to U.S. citizenship for themselves. It is true that a parent's deportation may be averted under certain circumstances,5 and once a citizen child turns twenty-one, she can petition for her parents to legally immigrate.6 The children at the center of these procedures are pejoratively referred to as "anchor babies."7 * J.D. Candidate, Class of 2012, University of Arizona, James E. Rogers College of Law. I want to thank Ledilla Booth for her insightful guidance and the editors of Arizona JournalofInternational and ComparativeLaw for their help in the editing process. 1. Only thirty of 194 countries grant automatic citizenship to children born to undocumented aliens. JOHN FEERE, CENTER FOR IMMIGRATION STUDIES BIRTHRIGHT CITIZENSHIP IN THE UNITED STATES: A GLOBAL COMPARISON 2 (2010), available at http://www.cis.org/articles/2010/birthright.pdf 2. U.S. CoNST. amend. XIV, § 1. 3. See generally Glossary of Immigration Terms, FEDERATION OF AM. IMMIGRATION REFORM [FAIR], http://www.fairus.org/site/PageNavigator/about.html (last visited Dec. 31, 2011). 4. Id.; see also U.S. CITIZENSHIP AND IMMIGRATIONS SERVICES, http://www.uscis.gov/portal/site/uscis/ (last visited Dec. 31, 2011) (explaining the process to petition for relatives including parents). 5. U.S. CITIZENSHIP AND IMMIGRATIONs SERVICES, supra note 4; 8 U.S.C. § 1401(a) (2010). 6. U.S. CITIZENSHIP AND IMMIGRATIONS SERVICES, supra note 4. 7. The Federation for American Immigration Reform defines an "anchor baby" as a "child born in the United States to illegal immigrants or other non-citizens." The term "anchor" refers to the idea that "the child's U.S. citizenship may provide a means for the rest of the family to stay in the United States or, more commonly, to return to the United 694 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011 The idea of "anchor babies" has some people questioning U.S. policy on birthright citizenship.i During the 112th Congress, bills restricting birthright citizenship were introduced in both the Senate and House of Representatives; the bills were assigned to committees but never heard in committee hearings or brought to the floor for a vote. 9 Similarly, state legislators attempted to restrict birthright citizenship during the 2011 legislative session, and all bills failed.' 0 Opposition to these proposals was fierce and included immigrant rights groups in Mexico and the United States," which asserted that such measures would fail to prevent illegal immigration and "only create a permanent underclass of workers with no civil rights."' 2 The controversy highlights the continuing concern over U.S. immigration policy. Although the efforts failed this time, the issue is not likely to disappear given that the United States has historically been hostile toward immigrants, especially during times of economic hardship. Other countries have addressed similar immigration quandaries. The United Kingdom and Ireland offer two particularly appropriate examples to examine when considering changes to U.S. policy. Both countries amended their birthright citizenship laws to eliminate automatic citizenship. The United Kingdom addressed the issue in the British Nationality Act of 1981, which established citizenship based on a parent's citizenship. 3 More recently, Ireland amended its Constitution to limit automatic citizenship only to children born to an Irish resident or citizen.14 States as immigrants after the child reaches adulthood." See Glossary of Immigration Terms, supra note 3. 8. See JEFFREY PASSEL & D'VERA COHN, PEW HISPANIC CTR., UNAUTHORIZED IMMIGRANT POPULATION: NATIONAL AND STATE TRENDS, 2010 (2011), available at http://pewhispanic.org/reports/report.php?ReportlD=133. 9 See S. 723, 112th Congress (1st Sess. 2011); H.R. 140, 112th Congress (1st Sess. 2011). 10. Fawn Johnson, States' Dare to Feds on Birthright Citizenship Stirs Protests, NAT'L J., Jan. 5, 2011, available at http://www.nationaljoumal.com/states-dare-to-feds-on- birthright-citizenship-stirs-protests-201 10105. 11. Nacha Cattan, Rights Groups Denounce Proposed Bills to Remove 'Birthright Citizenship,' CHRISTIAN SCI. MONITOR, Jan. 5, 2011, at 1, available at http://www.csmonitor.com/World/Americas/2011/0105/Rights-groups-denounce-proposed- bills-to-remove-birthright-citizenship. The state proposals were spearheaded by Pennsylvania State Representative Daryle Metcalf and embraced by local lawmakers from Oklahoma, Kansas, South Carolina, Georgia, and Arizona. Id. 12. Id. 13. British Nationality Act 1981, c. 61, § 1 (Eng.) (providing that a person bom in the United Kingdom shall be a British citizen if at the time of the birth, the person's mother or father "is a British citizen or settled in the United Kingdom"). 14. Irish Nationality and Citizenship Act 2004, (Act No. 38/2004) (Ir.), available at http://www.inis.gov.ie/en/INIS/Act2004.pdf/Files/Act2004.pdf (stating that "a person born in Ireland shall not be entitled to Irish citizenship unless a parent of that person has, during the period of four years immediately preceding the person's birth, been a resident of Ireland Citizenship as a Birthright 695 This Note first discusses the purposes, history, and development of birthright citizenship in the United States. Next, it examines the territorial citizenship policies developed in the United Kingdom and Ireland, then assesses whether it is feasible for the United States to follow either country's immigration reform. The Note concludes that any dramatic changes to U.S. birthright citizenship would be not only unfeasible, but also unwise; yet if a law eliminating birthright citizenship were passed and challenged, the U.S. Supreme Court could rule and put the issue to rest. II. THE UNITED STATES AND BIRTHRIGHT CITIZENSHIP A. Historical Basis for the "Anchor Baby" Controversy When the framers of the U.S. Constitution adopted the Citizenship Clause in 1787, immigration was unregulated, and the United States maintained an open-border policy to strengthen the national economy by attracting labor and capital.15 The first anti-immigrant movement began to spread throughout the United States during the 1850s and was directed primarily against Irish and German Catholics.' 6 This movement was attributed to groups such as the Know Nothing Party, which "espoused biases against ethnic and religious groups and resentment of competition." 17 The Know Nothings played to the concerns among the Southern states regarding the Northern states' expanding population and political power.'8 Southerners feared that rapid population growth in the North would result in diluted political power in the South and blamed the influx of Irish and German Catholic immigrants.1 This movement, while powerful, did not result in any lasting change to the U.S. immigration policy, but it demonstrated an anti-immigration sentiment that would periodically sweep through the United States. The numbers of immigrants continued to increase, particularly after the Civil War. 20 The combined effects of wars, revolutions, national persecutions, and depressions elsewhere, contrasted with the industrialization and expansion in the United States, were motivating factors for the increase in immigration.21 for a period of not less than three years or an aggregate of which is not less than three years"). 15. PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY 92 (1985). 16. Austin T. Fragomen et al., Historical Perspective on Immigration Legislation, I IMMIGR. L. & Bus. § 1:2 (2010). 17. Id.; see generally TYLER ANBINDER, NATIVISM AND SLAVERY: THE NORTHERN KNow NOTHINGS AND THE POLITICS OF THE 1850's (1992). 18. Fragomen et al., supranote 16. 19. Id. 20. Id. 2 1. Id. 696 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011 Tension regarding immigration increased again in the late 1800s, as an influx of Chinese immigrants sparked animosity between American and Chinese laborers. 22 Congress responded by passing the Chinese Exclusion Acts of the 1880s and 1890s, and later measures that excluded the Japanese and restricted eligibility for naturalization.23 The first Chinese Exclusion Act was passed in 1882 and barred Chinese laborers from entering the country for ten years.24 Although amended, this Act was technically in effect until 1943.25 Many Americans viewed the Chinese as "fundamentally different" and believed that unless prompt action to restrict Chinese immigration was taken, the country would be "overrun by the Chinese." 26 Around the same time, the U.S.
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