Immigration Outline :Citizenship

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  1. Citizenship

Acquisition of Citizenship – Jus Soli and Jus Sanguinus INA § 301

Jus Soli: conferral of nationality based on birth w/in territory

Everyone born in the U.S. is a U.S. citizen, thanks to the 14th amendment.

Immigration policy cannot get around this.  (Wong Kim Ark)

Pros: admin convenience; egalitarian; inclusive; most inclusive rule

Cons: arbitrary (person who comes at 1 day-old); gives bad incentive

Jus Sanguinus: by blood, parentage

Applies to kids born abroad, limited only by parental US residence

No parental residence, no passing of citizenship.

Not in constitution; rules in INA 301 and other sections.

These rules assumed marriage.

“Subject to US Jurisdiction”

Elk v. Wilkins: “under jurisdiction thereof” used to exclude Native Americans. Harsh read of this clause of 14(1); Elk wasn’t completely subject to US jurisdiction. Statutes later resolved this problem for Native Americans.

Wong Kim Ark: Broad read of 14A, conferring citizenship to kids of Chinese nationals. Purpose of 14A to include, not exclude. Jurisdiction Clause only meant to exclude kids of foreign enemies in hostile occupation and of foreign diplomats, traditionally excluded under jus soli rules.

Kids of Unauthorized Migrants, “Citizenship w/out Consent”

Pushing idea of mutual consent. If government hasn’t consented to an individual’s entry than government did not consent to child’s entry.

Critique: Consent is about individual’s consent, not the government’s. Concept of consent too demanding. Concept of jurisdiction way too demanding. People are subject to the government’s jurisdiction. No security if you’re only subject when government says you are.

Jus Sanguinus in the US

Jus soli not enough. Congress allows citizenship to be transmitted to kids born to US parents abroad. US government has certain obligations to these people, and also wants to encourage them to come back.

Source of Congress’s Power? Not clear, but the power is accepted now.

Art. I, § 8: power over naturalization? This is a lesser power.


Preventing perpetual transmission of citizenship to people who have no ties to US.

Required contact with US. Parent must live in US before birth. Since 1978, you don’t have to establish residence after your birth.

Jus Sanguinus & Gender

INS v. Nguyen. Gender-based distinction doesn’t violate EPC. Someone born to US citizen father becomes citizen only under certain circumstances (blood relationship must be established by clear and convincing evidence, can be established in various ways). This doesn’t apply to US citizen women who give birth abroad. Citizenship automatically passes and can be claimed at any point in the life of the child.

By Birth

Jus Soli (Right of Land)

Everyone born in the U.S. is a U.S. citizen, thanks to the 14th Am. Including children born to tourists and undocumented persons. Not the case in many countries.

Immigration policy can’t get around this. Wong Kim Ark (1898).

Narrow exceptions: children of foreign sovereigns and diplomats, and births on warships or to alien enemies in hostile occupation of U.S. land

Jus Sanguinis (Right of Blood)

Children born abroad to U.S. citizen parents are citizens.

Not in Constitution; rules in INA § 301 and other sections.

If both parents are citizens, and one parent ever had a residence in the U.S.,  even a pretty brief one, child is automatically a citizen

If one parent is a citizen, the citizen parent must have been physically present in the U.S. for 5 years total before the birth, incl. 2 years after the age of 14.

If no parental residence ever, no passing of citizenship.

From 1934-1978, children had to establish own resident or extended physical presence within certain periods in the U.S. or else lose the citizenship acquired at birth. Though this changed, the change wasn’t retroactive.

These rules assume married parents – for children born out of wedlock, citizenship also passes, but there are some steps and evidentiary requirements about the parent-child relationship that are greater for citizen fathers than citizen mothers to meet.

Naturalization INA § § 101(f);


Lawful permanent residents may naturalize after 5 years if they have not committed any bars to naturalization.

Exception: 3 years for those who received LPR status through marriage (they already waited 2 years to have conditional LPR status lifted.

      1. Sample Problems:

Problem #1, p. 60 (See CMR sol’n):  ‘A’ lawfully admitted >3 yrs ago, B (her spouse)=citizen, wants to naturalize.

But § 319(a) spousal exemption – residency reduced to 3 years if married to a citizen.

B wasn’t a citizen until 2 years ago and they have to have been e a citizen for the whole 3 years – so A’s application not yet timely.  Needs 8 more months to be eligible.

Problem #2, p. 61 (See CMR sol’n): Lawfully admitted, burglary conviction in 1996 (residency met).

Note either of these could catch him.  Parole in >180 days w/1 yr orig sentence, agg fel gets you.

Criteria for Naturalization

Residency & Phys Presence

Non-controversial. App has resided, sufficient phys presence, presence not from illegal entry.

Good Moral Character (INA § § 101(f); 316(a)(3))

Relevance Period

Some crimes are only relevant w/in a certain time period of app.

Other crimes (agg felonies, § 101(a)(43)) are always relevant.

Controversy: As agg fel list grows, 96 law made it apply retroactively to app (in nats and removal contexts). Knowledge, intent of applicant don’t matter.

Apart from agg fel controversy, seems pretty permissible to have this req.

Attachment (INA § 316(a)(3))

=attachment to const’l principles AND well-disposed to the good order of the US.

Courts have defined both requirements in a number of ways.

Members of certain groups excluded altogether (INA § 313(a)(4))

E.g., communists, totalitarian groups, maybe terrorist groups today?

How far should Congress go?

Citizens have right not to believe in representative democracy, orderly change in government. Should Congress be able to request that there be uniformity of belief (otherwise protected by 1A) among nats apps?

Argue that there are certain basic principles all should be required to adhere to.

Benefit-right distinction. Citizenship a benefit.

Ultimately, not clear how important attachment principles are. Easy for most.

Language (INA § 312(a)(1))

20th C phenomenon.

Understanding of English language, ability to read, write, speak, etc. Such a low level that wouldn’t enable meaningful participation. Few exceptions (old people).