Birthright Citizenship Policy Creates Downstream Problems

Imagine this:

A son is born in the United States of two aliens from the Dominican Republic ("the D.R."). The parents' immigration status doesn't matter for purposes of the scenario. The child is a U.S. citizen by virtue of birthright citizenship as now interpreted. But he is also a citizen of the D.R. because of his parents' citizenship. At a very young age, the child accompanies the parents back to the D.R., where he remains and grows into adulthood without returning to the United States.

He, in his turn, has a son born in the D.R., out of wedlock, although eventually he marries the mother, who is also Dominican. This second son at some point migrates to the United States and obtains lawful resident alien status — quite possibly on the coattails of his birthright citizen father, who may have "returned" to the country he has almost never lived in and knows nothing about, but to which he has a claim to citizenship through the mere geographic circumstance of his birth in this country.

But the son-of-a-son grows up to be a troublemaker and constantly skirmishes with the police authorities in the United States, finally being convicted of multiple felonies: first degree burglary, second degree robbery, second degree criminal possession of a weapon, and, to top it all off, four counts of attempted murder.

In the fullness of time, and after serving his sentence, the immigration authorities take custody of the convicted felon and charge him with being a deportable alien by virtue of his many serious convictions. He is ordered deported, but contests the charge, asserting that he is himself a U.S. citizen, having derived it from his birthright father whom we discussed earlier.

Immigration judges don't have the legal authority to adjudicate such a claim, and it ends up in the federal court of appeals for the second circuit where, surprise of surprises, the presiding panel agrees with him, even though as a technical matter the law governing derivative citizenship didn't apply to him because he was born out of wedlock and his father had not lived the requisite time in the United States to have conferred citizenship. The court of appeals bought into the argument that the (second) son should be deemed a derivative citizen even in the absence of language in the statute to that effect because in essence the statute as written is unconstitutional in that it provides differing derivative citizenship rules for differing circumstances.

The case is now on appeal to the Supreme Court, which accepted a petition for certiorari filed by the government seeking to have the second circuit's decision overturned. It will be heard as a part of the docket of cases the Court has accepted for its October term. The government's brief can be viewed here, but be aware it turns on the complexities of the citizenship statutes, which are arcane even in the best of circumstances.

It is on those narrow technical and interpretive grounds that the Court will render its opinion. In a way, though, that's unfortunate, because even though such an approach is the way cases are litigated, doing so is to miss the forest for the trees. The problem here is clear: The birthright citizenship that was accorded in the first place, and now (at least according to the Second Circuit) should act as the conduit to permit a hardened criminal who uses weapons in crimes of violence not only to avoid removal, but, irony of ironies, to actually end up walking out of deportation proceedings as a citizen of the United States. Does anybody else see a problem with this picture?

A corollary, but more subtle, irony is this: Further up the road, when philosophically inclined analysts, such as our friends at the Transactional Records Access Clearinghouse or the Migration Policy Institute or elsewhere, are poring over abstract immigration statistics, they will come across this anomaly, shake their heads once again at the dunderhead immigration enforcement agents, and wonder how it is that they don't know the difference between arresting a citizen or an alien. They will do this because the incredible back story will not be evident from mere statistical tables.

But when we focus on this back story — instead of all the minutiae that will dictate the outcome of the case at the Supreme Court — a very different picture emerges, which sheds a great deal of daylight on why birthright citizenship is a flawed and constitutionally unnecessary concept. It's time for Congress to act.