8 FAM 102.3
Supreme court Decisions
(CT:CITZ-7; 08-14-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 102.3-1 Introduction
(CT:CITZ-1; 06-27-2018)
a. The U.S. Supreme Court has considered the issues of
acquisition and retention of U.S. citizenship on various occasions. They
include:
(1) Decisions on the extent of birthright citizenship
before and after the ratification of the Fourteenth Amendment;
(2) Decisions interpreting statutory provisions
granting citizenship to children born abroad to U.S. citizen parents; and
(3) Decisions regarding the constitutionality of
statutory citizenship acquisition and retention provisions.
b. 7 FAM 1200 Appendix B compiles U.S. Supreme Court
cases involving the closely-related issue of loss of nationality, including
expatriation.
8 FAM 102.3-2 Early Supreme Court
Decisions on Extent of Birthright citizenship
(CT:CITZ-7; 08-14-2018)
a. The decision in Murray v. The Charming Betsy, 6 U.S.
64 (1804), demonstrates the Court's early understanding that all persons born
in the United States were U.S. citizens, despite the fact that the individual
at issue in the case had lived most of his life outside the country.
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"Jared Shattuck having been born within the
United States, and not being proved to have expatriated himself according to
any form prescribed by law, is said to remain a citizen, entitled to the
benefit and subject to the disabilities imposed upon American citizens; and,
therefore, to come expressly within the description of the act which
comprehends American citizens residing elsewhere."
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b. In the case of Inglis v. Trustees of Sailor's Snug
Harbor, 28 U.S. 99 (1830), the Court faced the question of whether a man born
in New York State in 1776 was a U.S. citizen and therefore able to inherit real
property. In doing so, the Court resolved complicated questions of how
citizenship had been acquired during the Revolutionary War. The court found
that those present on U.S. soil at the Declaration of Independence or born
thereafter were presumed to be citizens, but the presumption of citizenship was
rebutted upon a showing of intent to remain a British subject. The Court held:
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"If John Inglis, according to the first
supposition under this point, was born before the 4th of July 1776, he is an
alien; unless his remaining in New York during the war changed his character
and made him an American citizen. It is universally admitted, both in the
English courts and in those of our own country, that all persons born within
the colonies of North America, whilst subject to the crown of Great Britain,
were natural born British subjects, and it must necessarily follow, that the
character was changed by the separation of the colonies from the parent
state, and the acknowledgement of their independence."
****
"Prima facie, and as a general rule, the
character in which the American ante nati are to be considered, will depend
upon, and be determined by the situation of the party and the election made
at the date of the declaration of independence, according to our rule; or the
treaty of peace according to the British rule. But this general rule must
necessarily be controlled by special circumstances attending particular
cases. And if the right of election is at all admitted, it must be
determined, in most cases, by what took place during the struggle, and
between the declaration of independence and the treaty of peace. To say that
the election must have been made before, or immediately at the declaration of
independence, would render the right nugatory."
****
"How then is his father Charles Inglis to be
considered? Was he an American citizen? He was here at the time of the
declaration of independence, and prima facie may be deemed to have become
thereby an American citizen. But this prima facie presumption may be
rebutted; otherwise there is no force or meaning in the right of election.
It surely cannot be said, that nothing short of actually removing from the
country before the declaration of independence will be received as evidence
of the election; and every act that could be done to signify the choice that
had been made, except actually withdrawing from the country, was done by
Charles Inglis."
****
"The facts disclosed in this case, then, lead
irresistibly to the conclusion that it was the fixed determination of Charles
Inglis the father, at the declaration of independence, to adhere to his
native allegiance. And John Inglis the son must be deemed to have followed
the condition of his father, and the character of a British subject attached
to and fastened on him also, which he has never attempted to throw off by any
act disaffirming the choice made for him by his father."
****
"This right of election must necessarily
exist, in all revolutions like ours, and is so well established by adjudged
cases, that it is entirely unnecessary to enter into an examination of the
authorities. The only difficulty that can arise is, to determine the
time when the election should have been made."
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c. In the Slaughter-House Cases, 83 U.S. 36 (1872),
the Court began its analysis of the newly-enacted Fourteenth Amendment's
Privileges and Immunities Clause by addressing the Amendment's constitutional
definition of citizenship. It recognized the abrogation of the infamous Dred
Scott decision, 60 U.S. 393 (1856), which had held that descendants of slaves
were not included as "citizens" under the Constitution.
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"[The Fourteenth Amendment] declares that
persons may be citizens of the United States without regard to their
citizenship of a particular State, and it overturns the Dred Scott decision
by making all persons born within the United States and subject to its
jurisdiction citizens of the United States. That its main purpose was to
establish the citizenship of the negro can admit of no doubt. The phrase
'subject to its jurisdiction' was intended to exclude from its operation
children of ministers, consuls, and citizens or subjects of foreign States
born within the United States."
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d. In Minor v. Happersett, 88 U.S. 162 (1875), the
Court, in holding that the right to vote is not a right of all citizens,
affirmed that women were citizens and had been such even before the Fourteenth
Amendment. Chief Justice Waite engaged in a lengthy discussion of the history
of citizenship, stating:
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"Additions might always be made to the
citizenship of the United States in two ways: first, by birth, and second, by
naturalization."
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Noting that the concept of "natural-born"
citizenship predated the ratification of the Fourteenth Amendment, Chief
Justice Waite looked to common law definitions of the term before describing
its extraterritorial expansion through statute.
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"At common-law, with the nomenclature of which
the framers of the Constitution were familiar, it was never doubted that all
children born in a country of parents who were its citizens became
themselves, upon their birth, citizens also. These were natives, or
natural-born citizens, as distinguished from aliens or foreigners. Some
authorities go further and include as citizens children born within the
jurisdiction without reference to the citizenship of their parents. As to
this class there have been doubts, but never as to the first. For the
purposes of this case it is not necessary to solve these doubts. It is
sufficient for everything we have now to consider that all children born of
citizen parents within the jurisdiction are themselves citizens."
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e. In Elk v. Wilkins, 112 U.S. 94 (1884), the Court
found that birthright citizenship did not extend to children of Native American
tribes, holding that they were not "subject to the jurisdiction of the
United States" at birth.
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"[The Fourteenth Amendment] contemplates two
sources of citizenship, and two sources only: birth and
naturalization. The persons declared to be citizens are 'all persons
born or naturalized in the United States, and subject to the jurisdiction
thereof.' The evident meaning of these last words is, not merely subject in
some respect or degree to the jurisdiction of the United States, but
completely subject to their political jurisdiction, and owing them direct and
immediate allegiance. And the words relate to the time of birth in the one
case, as they do to the time of naturalization in the other. Persons not
thus subject to the jurisdiction of the United States at the time of birth
cannot become so afterwards, except by being naturalized, either
individually, as by proceedings under the naturalization acts; or
collectively, as by the force of a treaty by which foreign territory is
acquired. Indians born within the territorial limits of the United States,
members of, and owing immediate allegiance to, one of the Indian tribes (an
alien though dependent power,) although in a geographical sense born in the
United States, are no more 'born in the United States and subject to the
jurisdiction thereof,' within the meaning of the first section of the
Fourteenth Amendment, than the children of subjects of any foreign government
born within the domain of that government, or the children born within the
United States, of ambassadors or other public ministers of foreign
nations."
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f. In Fong Yue Ting v.
United States, 149 U.S. 698, 707 (1893), the Naturalization Clause of the U.S.
Constitution states that The Congress shall have power ... [t]o establish a
uniform Rule of Naturalization. U.S. Constitution Article 1, section 8. The
Naturalization Clause reflects the fundamental proposition, inherent in
sovereignty, that [e]very society possesses the undoubted right to determine
who shall compose its members.
8 FAM 102.3-3 Citizenship by
birth in the united states To Non-Citizen Parents (United States v. Wong Kim
Ark)
(CT:CITZ-1; 06-27-2018)
a. In United States v. Wong Kim Ark, 169 U.S. 649
(1898), the Court affirmed the right to citizenship of the United States of a
child born in the State of California whose parents, at the time of his birth,
were subjects of the Emperor of China not employed in any diplomatic or
official capacity. After reviewing judicial and statutory precedents on
citizenship, Justice Gray, writing for the Court, stated:
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"The Fourteen Amendment affirms the ancient
and fundamental rule of citizenship by birth within the territory, in the
allegiance and under the protection of the country, including all children
here born of resident aliens, with the exceptions or qualifications (as old
as the rule itself) of children of foreign sovereigns or their ministers, or
born on foreign public ships, or of enemies within and during a hostile
occupation of part of our territory . . . . The Amendment, in clear words
and in manifest intent, includes the children born, within the territory of
the United States, of all other persons, of whatever race or color, domiciled
within the United States. Every citizen or subject of another country, while
domiciled here, is within the allegiance and the protection, and consequently
subject to the jurisdiction, of the United States. His allegiance to the
United States is direct and immediate [while in the United States and] . . .
'strong enough to make a natural subject, for if he hath issue here, that
issue is a natural-born subject;' and his child . . . 'is as much a citizen
as the natural-born child of a citizen, and by operation of the same
principle.'"
****
"To hold that the Fourteen Amendment of the
Constitution excludes from citizenship the children, born in the United
States, of citizens or subjects of other countries, would be to deny
citizenship to thousands of persons of English, Scotch, Irish, German or
other European parentage, who have always been considered and treated as
citizens of the United States."
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b. Justice Gray then emphasized that Congress cannot
affect citizenship acquired under the Constitution through birthright.
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"Congress having no power to abridge the
rights conferred by the Constitution upon those who have become naturalized
citizens by virtue of acts of Congress, a fortiori no act or omission of
Congress, as to providing for the naturalization of parents or children of a
particular race, can affect citizenship acquired as a birthright, by virtue
of the Constitution itself, without any aid of legislation. The
Fourteenth Amendment, while it leaves the power, where it was before, in
Congress, to regulate naturalization, has conferred no authority upon
Congress to restrict the effect of birth, declared by the Constitution to
constitute a sufficient and complete right to citizenship."
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8 FAM 102.3-4 citizenship by
birth outside the united states to Citizen Father Under Section 1993 of Revised
Statutes (Weedin v. chin bow)
(CT:CITZ-1; 06-27-2018)
a. In Weedin v. China Bow, 274 U.S. 657 (1927), the
Court construed 1993 of the Revised Statutes as prohibiting a father from
transmitting citizenship by descent to a child born outside the United States
unless he had been a resident of the United States prior to or at the time of
the child's birth.
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"The United States contends that the proviso
of section 1993, 'but the rights of citizenship shall not descend to children
whose fathers never resided in the United States,' must be construed to mean
that only the children whose fathers have resided in the United States before
their birth become citizens under the section. It is claimed for the
respondent that the residence of the father at any time in the United States
before his death entitles his son whenever born to citizenship. These
conflicting claims make the issue to be decided."
****
"We think the words, 'the right of citizenship
shall not descend to persons whose fathers have never been resident in the
United States,' are equivalent to saying that fathers may not have the power
of transmitting by descent the right of citizenship until they shall become
residents in the United States. The other view is that the words, 'have never
been resident in the United States,' have reference to the whole life of the
father until his death, and therefore that grandchildren of native-born
citizens, even after they, having been born abroad, have lived abroad to
middle age and without residing at all in the United States, will become
citizens, if their fathers born abroad and living until old age abroad shall
adopt a residence in the United States just before death. We are thus to
have two generations of citizens who have been born abroad, lived abroad, the
first coming to old age, and the second to maturity, and bringing up of a
family without any relation to the United States at all until the father
shall in his last days adopt a new residence. We do not think that such a
construction accords with the probable attitude of Congress at the time of
the adoption of this proviso into the statute."
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8 FAM 102.3-5 Citizenship OF
Child Born Abroad in wedlock to Citizen Mother and Non-Citizen Father Under
Section 1993 of Revised statutes (Montana v. Kennedy)
(CT:CITZ-1; 06-27-2018)
a. Montana v. Kennedy, 366 U.S. 308 (1961), concerns
the ability of a U.S. citizen mother to transmit citizenship to a child born
abroad in wedlock to a non-U.S. citizen father. The Court ruled that 1993
only permitted U.S. citizen fathers who had lived in the United States to
transmit citizenship and that a seemingly contradictory statute did not alter
that rule. (In 1994, INA section 301(h) was enacted to allow U.S. citizen
mothers who had resided in the United States prior to May 24, 1934 to transmit
citizenship.)
b. The petitioner, whose mother was a native-born
United States citizen and whose father was a citizen of Italy, was born in
Italy in 1906 while his parents were temporarily residing there, and entered
the United States with his mother later the same year. After that, he
continuously resided in the United States and was never naturalized. His claim
of U.S. citizenship was based primarily upon 2172 of the Revised Statutes,
which granted citizenship to children born abroad to a citizen parent, without
reference to gender.
c. The Court held that at time of petitioner's birth in
Italy in 1906, the 1993 requirement that the father be the source of
inherited citizenship status for foreign-born children applied, and therefore
such statute did not afford citizenship to petitioner, even though his mother
was a native-born United States citizen.
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"In 1874 Congress re-enacted two statutes
which seem to defy complete reconciliation. R.S. 2172 . . . provided that
'children of persons who now are, or have been citizens of the United States,
shall, though born out of the limits and jurisdiction of the United States,
be considered as citizens thereof. R.S. 1993 . . . provided that 'All
children heretofore born or hereafter born out of the limits and jurisdiction
of the United States, whose fathers were or may be at the time of their birth
citizens thereof, are declared to be citizens of the United States; but the
rights of citizenship shall not descend to children whose fathers never
resided in the United States.' Since R.S. 2172 spoke broadly of children
of citizen 'persons'perhaps citizen mothers as well as citizen fatherswhile
R.S. 1993 spoke only of children of citizen 'fathers' (and even then
embraced only citizen fathers who had been United States residents), there is
a conflict in the apparent reach of the simultaneously re-enacted provisions.
Whatever may have been the reason for the 1874
re-enactment of the Act of 1802, as R.S. 2172, we find nothing in that
action which suggests a purpose to reverse the structure of inherited
citizenship that Congress created in 1855 and recognized and reaffirmed until
1934. On this basis and in the light of our precedents, we hold that at the
time of petitioner's birth in 1906, R.S. 1993 provided the sole source of
inherited citizenship status for foreign-born children of American parents.
That statute cannot avail this petitioner, who is the foreign-born child of
an alien father."
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8 FAM 102.3-6 constitutionality
of Differing Standards For Acquisition Of Citizenship under the Immigration and
Nationality Act
(CT:CITZ-7; 08-14-2018)
a. In Afroyim v. Rusk,
(1967), the Court held:
"that the
Fourteenth Amendment was designed to, and does, protect every citizen of this
nation against a congressional, forcible destruction of his citizenship,
whatever his creed, color, or race."
b. In Miller v.
Albright, 523 U.S. 420 (1998), the Court faced a challenge to 8 U.S.C. 1409
(INA 309), which prescribed different residency requirements and legitimation
requirements for acquisition of citizenship by children born abroad to
unmarried U.S. citizen fathers as opposed to unmarried U.S. citizen mothers.
Six justices agreed to uphold the statute, but on three different grounds,
leading to no majority opinion. Justice Stevens wrote that the statute was
constitutional because the differences were based on biological differences and
because the different classes' qualifications served valid governmental
interests of ensuring that the child actually shared a relationship with a
citizen parent. Justice O'Connor found that the petitioner, the daughter of an
unmarried U.S. citizen father, did not have standing as the alleged
discrimination was suffered by the father, not the daughter. Justice Scalia
noted that the petitioner had not met the statutory requirement for
citizenship, and even if the requirement was unconstitutional, the Court had no
power to grant citizenship beyond that provided for by the Constitution or by
statute.
c. In Nguyen v.
INS, 533 U.S. 53 (2001), the Court revisited the constitutionality of INA
Section 309 and its differing requirements based on the gender of the unmarried
citizen parent. The question before the Court was whether the requirement that
an unmarried citizen father legitimate his child is consistent with the
constitutional guarantee of equal protection. The Court affirmed the judgment
of the Court of Appeals and upheld the distinction, holding that statute does
not discriminate on the basis of gender by requiring a citizen fatherbut not a
citizen motherto take steps to establish his connection (through legitimation,
adjudication, or acknowledgment) to a child born out of wedlock outside the
United States before he can transmit U.S. citizenship to the child. The Court
found that applying different physical-presence requirements to unwed citizen
mothers and fathers was substantially related to the important government
interests in minimizing the risk of statelessness of foreign-born children and
in assuring a link between an unwed citizen father, and this country, to the
child.
d. In
Flores-Villar v. United States, 131 S. Ct. 2312 (2011), an equally divided
Court issued a one-sentence decision affirming the judgment by the Ninth
Circuit Court of Appeals. The Ninth Circuit had rejected an Equal Protection
Clause challenge to the differing physical-presence requirements of two former
sections of the INA, 8 U.S.C. 1401(a)(7) and 1409. Today, these
requirements are encompassed in INA Sections 301(g) and 309. The question
under consideration was whether Congress's decision to impose a shorter
physical-presence requirement (one continuous year) on unwed citizen mothers of
foreign-born children than on other citizen parents of foreign-born children
violates the Fifth Amendment's guarantee of equal protection. The Ninth
Circuit found that the differing standards advanced the important government
interests articulated in Nguyen. As an affirmance resulting from a divided
court, the Supreme Court's decision has no precedential value. See Neil v.
Biggers, 409 U.S. 188, 192 (1972).
e. In Sessions v.
Morales-Santana, 582 U.S. ____, 137S.Ct. 1678 (2017), the Court ruled that, for
purposes of transmission of citizenship to a child born abroad out of wedlock
to a U.S. citizen and an alien, five years of physical presence before the
child's birth, at least two of which occur after the parent reaches age 14, are
required, regardless of the sex of the U.S. citizen parent. The Court's
decision strikes down the one-year continuous physical presence criterion in
INA 309(c) for transmission of citizenship to children born abroad out of
wedlock to U.S. citizen mothers when the other parent is an alien, and in its
place imposes the five/two year requirement that U.S. citizen fathers must
satisfy, pursuant to current INA 309(a) and 301(g):
(1) The case, brought by a child born out of wedlock
to a U.S. citizen father and alien mother, presented an equal protection
challenge to the different periods of prior physical presence in the United
States required under the 1958 version of the INA for transmitting U.S.
citizenship at birth to a child born abroad out of wedlock to a U.S. citizen
father compared with a U.S. citizen mother. Although the required periods of
prior physical presence have changed since 1958, they remained different for
fathers and mothers; and
(2) By its terms, the Court's decision is to be
applied prospectively, with the controlling factor being the applicant's date
of birth. If the applicant was born abroad out of wedlock to one citizen and
one alien parent on or after June 12, 2017, then the Morales-Santana decision applies
to INA 309(c) cases. If the applicant was born between November 14, 1986 and
June 11, 2017, and the claim is under INA 309(c), then the current language of
INA 309(c) would apply.
8 FAM 102.3-7 Insular Cases
(CT:CITZ-1; 06-27-2018)
a. In the first decade of the 20th century, in a series
of court cases often called the "Insular Cases", the Supreme Court
developed the rationale that, absent specific Congressional legislation or
treaty provisions:
(1) The Constitution has only limited applicability to
U.S. territories; and
(2) Inhabitants of territories acquired by the United
States acquire U.S. nationality‑but not U.S. citizenship.
b. The Court ruled that:
(1) Alaska and Hawaii were incorporated territories
(Rasmussen v. U.S., 197 U.S. 516 (1905); Hawaii v. Mankichi, 190 U.S. 197
(1903); but
(2) Puerto Rico and the Philippines, although they had
become U.S. territory, were not part of the United States because Congress had
not yet enacted laws incorporating them into the United States or making the Constitution
fully applicable to them (Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. U.S.,
195 U.S. 138 (1904)).
c. In Downes, the Court stated that:
The liberality of Congress in legislating the
Constitution into all our contiguous territory has undoubtedly fostered the
impression that it went there by its own force, but there is nothing in the
Constitution itself, and little in the interpretation put upon it, to confirm
that impression
d. In Gonzales v. Williams, 192 U.S. 1 (1904), the
Supreme Court referred to its earlier finding that:
The nationality of the inhabitants of territory
acquired by conquest or cession becomes that of the government under whose
dominion they pass, subject to the right of election on their part to retain
their former nationality by removal or otherwise, as may be provided.
(Boyd v. Nebraska ex rel Thayer, 143 U.S. 135 (1892))
The Court held that citizens of Puerto Rico were not
aliens even though they had not been granted full U.S. citizenship by act of
Congress
8 FAM
102.3-8 Consitutionality of Statutory
Conditions Subsequent For Retention of Citizenship Acquired by Birth AbroaD
(Rogers v. Bellei)
(CT:CITZ-7; 08-14-2018)
a. In Rogers v. Bellei,
401 U.S. 815 (1971) the court upheld the constitutionality of the retention
provisions of former section 301(b) of the Immigration and Nationality Act.
b. The court found that:
Congress has the power
to impose the condition subsequent of residence in this country on appellee,
who does not come within the Fourteenth Amendment's definition of citizens as
those 'born or naturalized in the United States,' and its imposition is not
unreasonable, arbitrary, or unlawful.
c. In Rogers v. Bellei,
however, the court held that the constitutional definition of citizenship in
the 14th Amendment does not include persons who acquired citizenship by birth
abroad to a citizen parent. This definition was:
"one restricted
to the combination of three factors, each and all significant: birth in the
United States, naturalization in the United States, and subjection to the
jurisdiction of the United States."
d. The court held:
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"The plan thus
adopted by Congress with respect to a person of this classification was to
bestow citizenship at birth but to take it away upon the person's failure to
comply with a post-age-14 and pre-age-28 residential requirement. It is
deprival of citizenship, once bestowed, that is under attack here."
****
"Of initial
significance . . . is the Fourteenth Amendment's opening sentence: "All
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." The central fact, in our weighing of the
plaintiff's claim to continuing and therefore current United States
citizenship, is that he was born abroad. He was not born in the United
States. He was not naturalized in the United States. And he has not been
subject to the jurisdiction of the United States. All this being so, it
seems indisputable that the first sentence of the Fourteenth Amendment has no
application to plaintiff Bellei. He simply is not a
Fourteenth-Amendment-first-sentence citizen . . . . The plaintiff's claim
thus must center in the statutory power of Congress and in the appropriate
exercise of that power within the restrictions of any pertinent
constitutional provisions other than the Fourteenth Amendment's first
sentence."
****
"A contrary
holding would convert what is congressional generosity into something
unanticipated and obviously undesired by the Congress. Our National
Legislature indulged the foreign-born child with presumptive citizenship,
subject to subsequent satisfaction of a reasonable residence requirement,
rather than to deny him citizenship outright, as concededly it had the power
to do, and relegate the child, if he desired American citizenship, to the
more arduous requirements of the usual naturalization process. The plaintiff
here would force the Congress to choose between unconditional conferment of
United States citizenship at birth and deferment of citizenship until a
condition precedent is fulfilled. We are not convinced that the Constitution
requires so rigid a choice. If it does, the congressional response seems
obvious.
. . . Neither are we
persuaded that a condition subsequent in this area impresses one with
'second-class citizenship.' That cliche is too handy and too easy, and, like
most cliches, can be misleading. That the condition subsequent may be
beneficial is apparent in the light of the conceded fact that citizenship to
this plaintiff was fully deniable. The proper emphasis is on what the
statute permits him to gain from the possible starting point of
non-citizenship, not on what he claims to lose from the possible starting
point of full citizenship to which he has no constitutional right in the
first place. His citizenship, while it lasts, although conditional, is not
'second-class.'"
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e. The court summarized:
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the statutory
pattern, therefore, developed and expanded from (a) one, established in 1790
and enduring through the Revised Statutes and until 1934, where citizenship
was specifically denied to the child born abroad of a father who never
resided in the United States; to (b), in 1907, a governmental protection
condition for the child born of an American citizen father and residing
abroad, dependent upon a declaration of intent and the oath of allegiance at
majority; to (c), in 1934, a condition, for the child born abroad of one
United States citizen parent and one alien parent, of five years' continuous
residence in the United States before age 18 and the oath of allegiance
within six months after majority; to (d), in 1940, a condition, for that
child, of five years' residence here, not necessarily continuous, between
ages 13 and 21; to (e), in 1952, a condition, for that child, of five years'
continuous residence here, with allowance, between ages 14 and 28. Thus, in
summary, it may be said fairly that, for the most part, each successive
statute, as applied to a foreign-born child of one United States citizen
parent, moved in a direction of leniency for the child.
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