Birthright citizenship revocation and international law

Birthright citizenship

Op-Ed: As the battles lines are being drawn among the competitors in the Republican Party and beyond to challenge the Democratic nominee for president in 2016, immigration reform has gravitated to the top of the list since Republican candidate Donald Trump published his immigration doctrine that, among other declarations, calls for revocation of birthright citizenship for children born of undocumented immigrant parents.    

US birthright citizenship is guaranteed under the 14th Amendment to the US Constitution since 1868. And even prior to the amendment, US birthright citizenship was tested and proven in the court case involving Julia Lynch in 1844, which was researched and explored in depth on the MSNBC program “The Last Word” with Lawrence O’Donnell on Wednesday.   

In another 1898 case the United States v. Wong Kim Ark heard by the US Supreme Court, the decision was held to guarantee birthright citizenship, for it “applies to children of foreigners present on American soil,” furthermore the Supreme Court “has not re-examined this issue since the concept of “illegal alien” entered the language.

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US Constitution 14th Amendment

Admittedly legal scholars, however, have disagreed over whether the Wong Kim Ark precedent applies when alien parents are in the country illegally.  

Congress can act outside of the US Supreme Court by restricting birthright citizenship in two ways. First by  statutory redefinition of the term jurisdiction, or by overriding both the Wong Kim Ark ruling and the Citizenship Clause itself through an amendment to the Constitution, but no such proposal has been broached because the process could take years and the political repercussions to legislators is untenable. 

The current interest in punitive measures to deny citizenship took root in the Great Recession of 2008 when unemployment percentages skyrocketed and fear spread that immigrants were taking jobs away from Americans. It’s a phenomenon that has propelled itself into the current Republican discourse as an appeasement to extremist right-wing conservatives, although some could say the scapegoating of immigrants never left.   

Those who argue for retracting citizenship for children of undocumented immigrants with an amendment need to consider the international law implications. Setting aside the inhumanity and insensitivity of not recognizing children born here as citizens, questions regarding the legality for denying citizenship under international human rights norms could be applicable to the United States. 

In a position paper from Harvard University published in the Human Rights Journal Vol. 25 in 2009 “Born in the Americas:  Birthright Citizenship and Human Rights,” Katherine Culliton-Gonzalez argues revocation of birthright citizenship disparately impacts certain racial or ethnic minority groups and might violate human rights law. 

Retrogression of birthright citizenship, she says, cannot be substantiated just because other countries do not or have not provided it to all children of undocumented immigrants.  International law allows sovereign countries to design their own laws and rules regarding citizenship, but retrogression is problematic under international law. The Dominican Republic is one of the few nations in the Americas that denies birthright citizenship to the children of unauthorized immigrants. 

This concept was tested in 2005 in the Dominican Republic in the case of Dilcia Yean and Violeta Bosico v. Dominican Republic.  The Inter-American Court of Human Rights found that “while the Dominican Republic had the right to enact its own citizenship rules, those rules were also subject to norms providing for the right to a nationality, especially for children, as well as the right to freedom from discrimination,” argues Gonzalez. 

The Dominican Republic amended its constitution in 2010 to retract birthright citizenship entirely from children of undocumented immigrants; however, this was immediately challenged by a Haitian who was born in the Dominican Republic. The decision of the Inter-American Court in the case of Yean and Bosico children made it clear that any retraction of birthright citizenship displaying discrimination is legally questionable under human rights’ law. 

Conclusion 

Three out of four unauthorized immigrants in the US are Hispanic and retraction of birthright citizenship of their children born here would disproportionately affect the country’s Latino population.  Evidence of discriminatory intent would be in violation of fundamental equality rights by retrogression.  A US constitutional amendment limiting birthright citizenship for children of undocumented immigrants would violate the fundamental human rights norms of the US and be an unwise policy. 

If the US retracted citizenship from children of the current generation of immigrants and “retrogress” from the standard set by the Fourteenth Amendment, it would be in violation of the most fundamental of all human rights: every person should be treated equally and judged on their own merits. 

Furthermore, in her final summary Ms. Gonzalez writes, “Congress should not pass an amendment retracting the guarantees of the Fourteenth Amendment, nor should it enact any legislation limiting birthright citizenship. Similarly, as the states are also bound by fundamental human rights law, no state should take any measure limiting birthright citizenship for children of immigrants. The children represent our collective future, and they should be free to realize the promise of the American dream.”

Any bill or movement to deny citizenship to children born here of alien parents is unconstitutional on its face value.  Moreover, a constitutional amendment to restrict birthright citizenship, even though not technically unlawful, would contradict our Nation’s constitutional history and traditions embracing diversity and tolerance. 

Resources

http://harvardhrj.com/wp-content/uploads/2009/09/Culliton-Gonzalez.pdf
http://www.dailykos.com/story/2015/08/20/1413731/-Birthright-Citizenship-The-case-of-Julia-Lynch-1844
https://supreme.justia.com/cases/federal/us/169/649/#715
https://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark

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