Birthright Citizenship under Attack: How Dominican Nationality Laws May Be the Future of U.S. Exclusion

By Román, Ediberto; Sagás, Ernesto | American University Law Review, January 1, 2017 | Go to article overview

Birthright Citizenship under Attack: How Dominican Nationality Laws May Be the Future of U.S. Exclusion


Román, Ediberto, Sagás, Ernesto, American University Law Review


Introduction

Attacks on birthright citizenship periodically emerge in the domestic political landscape. More often than not, conservative politicians blame immigrants for the country's problems. For instance, on January 27, 2011, U.S. Senators Rand Paul (R-KY) and David Vitter (R-LA) proposed a constitutional amendment that would grant automatic citizenship to U.S.-born children in only three situations: when one parent is a U.S. citizen, when one parent is a legal immigrant, or when one parent is an active member of the U.S. military.1 On the same day, Republican state legislators in Arizona introduced a law challenging U.S. citizenship for children born in the state when their parents are either undocumented migrants or another category of non-citizen.2 Congressional opponents to birthright citizenship at the very least seem to be persistent: despite failing in 2011, four years later Senator Vitter reintroduced a bill to end birthright citizenship.3

Birthright citizenship is arguably the most important right: the right to have rights. It is a legal concept with textual roots in the U.S. Constitution's Fourteenth Amendment. Despite its importance, in recent times, it has come under consistent attack in recent presidential elections.4 In the 2008 election, for instance, several Republican presidential candidates expressed skepticism about whether the Constitution in fact grants birthright citizenship.5 Four years later, in 2012, several Republican candidates, continued expressing concern over birthright citizenship.6 The campaign leading up to the 2016 presidential elections did not break this pattern of attack. in fact, several of the Republican presidential candidates raised the issue, with Donald Trump making it the hallmark of his immigration reform platform.7 Trump promised that, if elected, his administration would "end birthright citizenship."8 In an election characterized by widespread anger stemming from the party's base, other Republican candidates shortly thereafter jumped onto the anti-immigrant bandwagon.9 In spite of the heated rhetoric, most of these candidates see repealing, or clarifying, the Fourteenth Amendment as an endeavor that will affect the children of undocumented immigrants in the future.10 Others, like Trump, take it a step further by broadly arguing that, for those children of undocumented immigrants, U.S. birthright citizenship can be effectively challenged in court, potentially stripping them of their U.S. citizenship.11 Yet Trump's campaign promise-ending birthright citizenship-would require legal strategies that are unlikely to stand in court and a significant shift in U.S. public opinion.12

After his surprising win, President Trump appointed individuals with similar anti-immigrant and anti-birthright citizenship sentiments. For instance, the Trump administration appointed Julie Kirchner to serve as ombudsperson to the U.S. Citizenship and Immigration Service (USCIS).13 The troubling aspect of this appointment is that she was the former executive director of the Federation of American Immigration Reform (FAIR), a group some characterize as a hate group, known for its anti-immigrant and anti-birthright citizenship stances.14 Ironically, her current role in the federal government is to assist immigrants that run into trouble with the USOS.15 Further, Jon D. Feere, a national advocate for ending birthright citizenship, was hired as an advisor to the acting Director of U.S. Immigration and Customs Enforcement, Thomas D. Homan.16

Events in the Dominican Republic are perhaps as a harbinger of things to come in the United States. In the Dominican Republic, following a significant constitutional redefinition of Dominican citizenship and a major court decision, anti-immigrant policies have been enshrined in law. Although the Dominican Republic's 2010 Constitution retained the country's jus soli approach to citizenship,17 it also explicitly excluded the Dominican-born children of individuals "residing illegally in Dominican territory. …

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