Birthright citizenship has long been the norm in the United States and it doesn't look like that will change anytime soon. I for one am glad. As a lawyer I love bright line rules that don’t really require much interpretation. If you’re born here, that’s it…you are a citizen, end of story. That hasn't always been the case in this country and you can read all about it here.
Most people think this is a pretty fair system, but this arbitrary way that we assign citizenship leads to many unjust outcomes. It is one of the best ways to point out how broken our immigration system really is. Let me be clear…I am not advocating that we abandon birthright citizenship, but I am saying it should be expanded to more people who weren't born in the US. To illustrate my point let me present two fairly common scenarios.
Scenario 1 – Someone born in the U.S. to non-citizen parents leaves the U.S. with them before age 1. This person grows up outside the U.S. and at age 18 decides, “Hey, I think I might be better off in the U.S., I think I might go live there.” They go to a port of entry with their birth certificate (or easily obtained U.S. passport) and enter the U.S. ready to work, vote, and participate in society without any fear of being deported for a minor offense. This person is also eligible for any means tested public benefit for which he qualifies.
Scenario 2 – Someone born in a country that does not recognize birthright citizenship to parents who are citizens of a third country. The parents bring this child to the United States before age 1, right around the time the person in scenario one is leaving. This person grows up here, speaks only English, and graduates from high school. Because money was tight for his family and because of our ridiculously arcane immigration laws he never became “legal” (whatever that means). Pay no attention to the fact that his parents are legally present in the U.S. and he has siblings born here. Now he wants to go to college, but he can’t because he can’t afford it. He applies for the means tested benefits that the guy in scenario 1 applies for, but is denied because he lacks legal status. So, not wanting to be a drag on his family or society he enters the workforce. On his way to work one day he is pulled over for an improper turn signal and subsequently arrested for driving while unlicensed. He is turned over to Immigration and Customs Enforcement by local authorities. Because he has no legal status and no way to remain here (again, because of our ridiculous immigration laws) the federal government will try to deport him, not to his country of birth, but to the country of which his parents were previously citizens.
Now, as for scenario 1…I am totally fine with this. While I have no love for the welfare state, the fact that he can take advantage of it is a problem with the welfare system, NOT the immigration system. I am always in favor of anyone being able to come here anytime and for any reason so long as they can pull their own weight. Arbitrary lines in the sand should not prohibit someone from living where and how they want to live!
As for scenario 2…there are a few things this guy can do to prevent his deportation. None of them are cheap, guaranteed, or permanent, but why should he have to do anything? Why can’t we have a system that works for people like this? Short answer…politics, and BOTH sides are to blame! Birthright citizenship is a start, but it isn't enough. Deferred Action for Childhood Arrivals (DACA) was something, but it didn't go far enough. Why is someone who is otherwise eligible for DACA, but was 33 the day it was announced not able to benefit like someone who was 29 the day it was announced? Why is someone with a high school diploma more deserving than the kid who decided to work and support his family rather than finish high school? Why is the guy in scenario 1 more deserving than the guy in scenario 2? The answer is NOT to restrict the guy in scenario 1; it’s to expand our conception of citizenship to the guy in scenario 2. Our system is broken…it’s time to fix it.