Supreme Court: Children of Illegal Aliens, Tourists not Citizens

July 2, 2018

IRLI spotlights controlling precedent on the Fourteenth Amendment

WASHINGTON—Last Friday, the Immigration Reform Law Institute filed a friend-of-the-court brief in Fitisemanu v. United States, a case on birthright citizenship before the U.S. District Court for the District of Utah. Plaintiffs, American Samoans who reside in Utah, claim that their birth in American Samoa made them U.S. citizens under the Constitution.

According to congressional enactment, reached upon agreement with American Samoa when the islands making it up became a United States territory, persons born in American Samoa are American nationals but not U.S. citizens. Though free to live in the United States, as plaintiffs do, they can only acquire American citizenship through naturalization. Plaintiffs are asking the court to overturn Congress, and instead rule that their birth in American Samoa made them, at that moment, American citizens under the Fourteenth Amendment to the U.S. Constitution. Opposing them in the case are not only the defendants, including the U.S. government, but the government of American Samoa, which has always been against constitutional birthright citizenship for American Samoans.

In its brief, IRLI analyzes a controlling Supreme Court case, United States v. Wong Kim Ark, which was decided in 1898. Wong Kim Ark was born in San Francisco to Chinese parents legally residing there. He later returned with his parents to China. Denied re-admittance, Wong Kim Ark argued before the Supreme Court that the Fourteenth Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” are United States citizens, made him a citizen of the United States at his birth.

The Supreme Court agreed, holding that, because his parents were legally residing in the United States when he was born here, he was a citizen at birth under the Fourteenth Amendment. The holding of this case is widely misread as conferring citizenship at birth under the Fourteenth Amendment on all persons whatsoever born in the United States (with the narrow exceptions of children of diplomats, members of an invading force, or Indians born in the allegiance of a tribe). IRLI shows in its brief that this reading is wrong; the Court clearly excluded the children of illegal aliens and non-U.S. residents from constitutional birthright citizenship.

In its brief, IRLI then derives the following rule from Wong Kim Ark and an earlier Supreme Court case, Wilkins v. Elk: whether one is a citizen at birth under the Fourteenth Amendment depends on whether one was born in the United States to a U.S.-resident parent who, at the time, both had permission to be in the United States and owed direct and immediate allegiance to the United States. This rule happens to exclude the children of both illegal aliens (who do not have permission to be in the country) and tourists (who do not “reside” here) from constitutional birthright citizenship.

Applied to the present case, the rule means that whether plaintiffs were citizens at birth depends on whether American Samoa is “in” the United States, and also on whether plaintiffs’ American Samoan parents owed direct and immediate allegiance to the United States. Declining to take a position on either point, IRLI filed its brief in support of neither party.

“Amazingly, the broad but reasonable holding of Wong Kim Ark­ – excluding the children of non-residents and illegal aliens from citizenship at birth under the Constitution – has been ignored or misstated for 120 years,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Meanwhile, millions have been assumed to be citizens even though the Supreme Court has held they are not. An entire industry has even grown up catering to so-called ‘birth tourists,’” Wilcox further noted. “These are foreigners who come here only long enough to have a child on American soil, in the belief that doing so will confer American citizenship on that child. Their belief, too, is mistaken.

“In America,” Wilcox concluded, “neither foreigners with no connection to this country nor those here against the will of the nation should get to decide who shall be American citizens. And the Supreme Court has never held to the contrary.”

The case is Fitisemanu v. United States, No. 1:18-cv-00036 (D. Utah).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]