Birthright Citizenship Under the14th Amendment of Persons Born in the United States to Alien Parents

Margaret Mikyung Lee
Legislative Attorney

Over the last decade or so, concern about illegal immigration has sporadically led to a reexamination of a long-established tenet of U.S. citizenship, codified in the Citizenship Clause of the Fourteenth Amendment of the U.S. Constitution and §301(a) of the Immigration and Nationality Act (INA) (8 U.S.C. §1401(a)), that a person who is born in the United States, subject to its jurisdiction, is a citizen of the United States regardless of the race, ethnicity, or alienage of the parents. The war on terror and the case of Yaser Esam Hamdi, a U.S.-Saudi dual national captured in Afghanistan fighting with Taliban forces, further heightened attention and interest in restricting automatic birthright citizenship, after the revelation that Hamdi was a U.S. citizen by birth in Louisiana to parents who were Saudi nationals in the United States on non-immigrant work visas and arguably entitled to rights not available to foreign enemy combatants. More recently, some congressional Members have supported a revision of the Citizenship Clause or at least holding hearings for a serious consideration of it. An Arizona state legislator has voiced support for state legislation that would deny birth certificates to persons born to undocumented aliens. This report traces the history of this principle under U.S. law and discusses some of the legislation in recent Congresses intended to alter it. 

The traditional English common-law followed the doctrine of jus soli, under which persons born within the dominions of and with allegiance to the English sovereign were subjects of the sovereign regardless of the alienage status of their parents. The exceptions to this rule are persons born to diplomats, who are born subjects of the sovereign whom the parents represent abroad, and persons born to citizens of a hostile occupying force, who are born subjects of the invading sovereign. Although the states and courts in the United States apparently adopted the jus soli doctrine, there still was confusion about whether persons born in the United States to alien parents were U.S. citizens. This arose because citizenship by birth in the United States was not defined in the Constitution nor in the federal statutes. Legal scholars and law makers were torn between a "consensualist" doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an "ascriptive" doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship. Additionally, African Americans were not considered citizens of the United States, even if they were free. Native Americans also were not considered U.S. citizens because they were members of dependent sovereign Indian nations. The Civil Rights Act of 1866 and the Fourteenth Amendment, ratified in 1868, extended birthright citizenship to African Americans and also to most persons born in the United States. In an 1898 decision, United States v. Wong Kim Ark, the United States Supreme Court made clear that U.S.-born children of aliens were U.S. citizens regardless of the alienage and national origin of their parents, with narrow exceptions for the children of foreign diplomats and hostile invasion and occupation forces of a foreign nation. However, in the 1884 decision Elk v. Wilkins, the Supreme Court held that Native Americans were not U.S. citizens under the terms of the Citizenship Clause. Native Americans were U.S. citizens by treaties or statutes granting U.S. citizenship to members of specific tribes. Immigration statutes enacted in 1924, 1940, and 1952 granted U.S. citizenship to all Native Americans. 

In the 111th Congress, H.R. 126, §301 of H.R. 994, H.R. 1868, §7 of H.R. 5002, and S.J.Res. 6 would amend the Constitution and/or the INA to exclude from citizenship at birth persons born in the United States whose parents are unlawfully present in the United States or are nonimmigrant aliens.


Date of Report: August 12, 2010
Number of Pages: 21
Order Number: RL33079
Price: $29.95

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Border Security: The Role of the U.S. Border Patrol

Chad C. Haddal
Specialist in Immigration Policy

The United States Border Patrol (USBP) has a long and storied history as our nation's first line of defense against unauthorized migration. Today, the USBP's primary mission is to detect and prevent the entry of terrorists, weapons of mass destruction, and illegal aliens into the country, and to interdict drug smugglers and other criminals along the border. The Homeland Security Act of 2002 dissolved the Immigration and Naturalization Service and placed the USBP within the Department of Homeland Security (DHS). Within DHS, the USBP forms a part of the Bureau of Customs and Border Protection under the Directorate of Border and Transportation Security. 

During the last decade, the USBP has seen its budget and manpower more than triple. This expansion was the direct result of congressional concerns about illegal immigration and the agency's adoption of "Prevention Through Deterrence" as its chief operational strategy in 1994. The strategy called for placing USBP resources and manpower directly at the areas of greatest illegal immigration in order to detect, deter, and apprehend aliens attempting to cross the border between official points of entry. Post 9/11, the USBP refocused its strategy on preventing the entry of terrorists and weapons of mass destruction, as laid out in its recently released National Strategy. In addition to a workforce of over 20,000 agents, the USBP deploys vehicles, aircraft, watercraft, and many different technologies to defend the border. 

In the course of discharging its duties, the USBP patrols 8,000 miles of American international borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico. However, there are significant geographic, political, and immigration-related differences between the northern border with Canada and the Southwest border with Mexico. Accordingly, the USBP deploys a different mix of personnel and resources along the two borders. Due to the fact that approximately 98.7% of unauthorized migrant apprehensions by the USBP occur along the Southwest border, the USBP deploys over 85% of its agents there to deter illegal immigration. The northern border is more than two times longer than the Southwest border, and features far lower numbers of aliens attempting to enter illegally, but may be more vulnerable to terrorist infiltration. As a consequence of this, the USBP has focused its northern border efforts on deploying technology and cooperating closely with Canadian authorities through the creation of International Border Enforcement Teams. 

Some issues for Congress to consider could include the slow rate of integration between the USBP's biometric database of illegal aliens and the Federal Bureau of Investigation's (FBI) biometric database of criminals and terrorists; the number of unauthorized aliens who die attempting to enter the country each year; the increasing attacks on Border Patrol agents, and the threat posed by terrorists along the sparsely defended northern border as well as the more porous Southwest border.


Date of Report: August 11, 2010
Number of Pages: 40
Order Number: RL32562
Price: $29.95

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Trafficking in Persons: U.S. Policy and Issues for Congress

Liana Sun Wyler
Analyst in International Crime and Narcotics

Alison Siskin
Specialist in Immigration Policy

Trafficking in persons (TIP) for the purposes of exploitation is believed to be one of the most prolific areas of international criminal activity and is of significant concern to the United States and the international community. According to Department of State estimates, roughly 800,000 people are trafficked across borders each year. If trafficking within countries is included in the total world figures, official U.S. estimates indicate that some 2 to 4 million people are trafficked annually. However, there are even higher estimates, ranging from 4 to 27 million for total numbers of forced or bonded laborers. As many as 17,500 people are believed to be trafficked to the United States each year. 

Since enactment of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA, P.L. 106-386), the Administration and Congress have aimed to address TIP by authorizing new programs and reauthorizing existing ones, appropriating funds, and conducting oversight on the effectiveness and implications of U.S. anti-TIP policy. Most recently, the TVPA was reauthorized through FY2011 in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457). Obligations for global and domestic anti-TIP programs, not including operations and law enforcement investigations, totaled approximately $103.5 million in FY2009. 

The second session of the 111th Congress has continued to exercise its oversight of TIP programs and operations. Several bills related to combating various aspects of TIP have been introduced. One of them, International Megan's Law of 2010 (H.R. 5138), passed the House on July 27, 2010. Activity on combating TIP will likely continue into the next Congress, particularly related to efforts to reauthorize appropriations for anti-TIP programs. Ongoing policy issues include how to measure the effectiveness of the U.S. and international responses to TIP, including the State Department's annual TIP rankings, the use of unilateral sanctions, and how to balance border control and law enforcement efforts against TIP perpetrators with victim prevention and rehabilitation efforts. Other issues are whether to include all forms of prostitution in the global definition of TIP, and whether sufficient efforts are applied to addressing all forms of TIP, including not only sexual exploitation, but also forced labor and child soldiers. 

On June 14, 2010, the State Department issued its 10th annual, congressionally mandated report on human trafficking. In addition to outlining major trends and ongoing challenges in combating TIP, the report provides a country-by-country analysis and ranking, based on what progress foreign countries have made, from April 2009 through March 2010, in their efforts to prosecute, protect, and prevent TIP. The report categorizes countries into four "tiers" according to the government's efforts to combat trafficking. Those countries that do not cooperate in the fight against trafficking (Tier 3) may be subject to U.S. foreign assistance sanctions if the President does not issue a waiver on national interest grounds in September 2010. Last year, President Barack Obama determined that two Tier 3 countries will be sanctioned for FY2010 without exemption (Cuba and North Korea) and that six Tier 3 countries will be partially sanctioned for FY2010 (Burma, Eritrea, Fiji, Iran, Syria, and Zimbabwe).


Date of Report: August 4, 2010
Number of Pages: 57
Order Number: RL34317
Price: $29.95

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

Border Security: The Role of the U.S. Border Patrol

Chad C. Haddal
Specialist in Immigration Policy

The United States Border Patrol (USBP) has a long and storied history as our nation's first line of defense against unauthorized migration. Today, the USBP's primary mission is to detect and prevent the entry of terrorists, weapons of mass destruction, and illegal aliens into the country, and to interdict drug smugglers and other criminals along the border. The Homeland Security Act of 2002 dissolved the Immigration and Naturalization Service and placed the USBP within the Department of Homeland Security (DHS). Within DHS, the USBP forms a part of the Bureau of Customs and Border Protection under the Directorate of Border and Transportation Security.

During the last decade, the USBP has seen its budget and manpower more than triple. This expansion was the direct result of Congressional concerns about illegal immigration and the agency's adoption of "Prevention Through Deterrence" as its chief operational strategy in 1994. The strategy called for placing USBP resources and manpower directly at the areas of greatest illegal immigration in order to detect, deter, and apprehend aliens attempting to cross the border between official points of entry. Post 9/11, the USBP refocused its strategy on preventing the entry of terrorists and weapons of mass destruction, as laid out in its recently released National Strategy. In addition to a workforce of over 20,000 agents, the USBP deploys vehicles, aircraft, watercraft, and many different technologies to defend the border.

In the course of discharging its duties, the USBP patrols 8,000 miles of American international borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico. However, there are significant geographic, political, and immigration-related differences between the northern border with Canada and the southwest border with Mexico. Accordingly, the USBP deploys a different mix of personnel and resources along the two borders. Due to the fact that approximately 98.7% of unauthorized migrant apprehensions by the USBP occur along the southwest border, the USBP deploys over 85% of its agents there to deter illegal immigration. The northern border is more than two times longer than the southwest border, features far lower numbers of aliens attempting to enter illegally, but may be more vulnerable to terrorist infiltration. As a consequence of this, the USBP has focused its northern border efforts on deploying technology and cooperating closely with Canadian authorities through the creation of International Border Enforcement Teams.

Some issues for Congress to consider could include the slow rate of integration between the USBP's biometric database of illegal aliens and the Federal Bureau of Investigation's (FBI) biometric database of criminals and terrorists; the number of unauthorized aliens who die attempting to enter the country each year; the increasing attacks on Border Patrol agents, and the threat posed by terrorists along the sparsely defended northern border as well as the more porous southwest border.


Date of Report: July 30, 2010
Number of Pages: 39
Order Number: RL32562
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.