Chapter 27 - § 27.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 27.1 • INTRODUCTION

There are two basic ways of becoming a United States citizen (USC). The first and most common way is for U.S. citizenship to vest automatically, whether at the time of birth, at the occurrence of a certain other event, or upon the completion of a series of events. The second way is to acquire U.S. citizenship by completing an administrative process, which includes the approval of an application and the taking of an oath of allegiance.

This chapter provides a brief overview of the laws governing the automatic acquisition of citizenship at birth and after birth, but focuses on a comprehensive overview of the administrative process of "naturalization." The chapter highlights two major groups of people who may qualify for special rules or exceptions to the general rules and procedures in the naturalization process: military personnel and spouses of U.S. citizens. Please consult the statutes, regulations, and other immigration legal analytical materials and treatises, as well as agency sources and even an experienced immigration attorney mentor regarding an individual's citizenship or eligibility for naturalization and the availability of special rules or procedures in a particular case.

§ 27.1.1—Historical Development Of U.S. Citizenship And Naturalization Law

The U.S. Constitution explicitly gives Congress the power to establish a uniform law of naturalization.¹ Originally, the U.S. Constitution was silent on identifying who was a U.S. citizen. Since the beginning of the republic, U.S. citizenship doctrines derived from British common law: the doctrine of citizenship based on jus soli (birth in the United States) and jus sanguinis (literally meaning citizenship derived through blood, i.e., through a direct biological or ancestral family relationship). As early as 1804, the Supreme Court held that a person born in the territory of a state of the United States who remained there after the War of Independence was a citizen, unless and until the person expatriated himself or herself.² Congress exercised its constitutional power to expand the concept of jus soli to include jus sanguinis. As early as 1790, Congress passed the law that a child born of U.S. citizens abroad was a U.S. citizen.³ However, the doctrine of citizenship based on jus soli was not codified by Congress until the Civil Rights Act of 1866, as a remedy for the circumscription of the jus soli principle by the Supreme Court 10 years earlier in the Dred Scott decision.⁴ In that infamous decision, the Supreme Court held that runaway slaves and free persons of African descent were not citizens of the United States because they were not part of the "political body," i.e., not understood as members of the community by the 13 original states at the time that the U.S. Constitution was framed. In 1868, two years after Congress passed the Civil Rights Act, birthright citizenship was incorporated into the United States Constitution in the Fourteenth Amendment: "All persons born or naturalized in the United States . . . are citizens of the United States. . . ."

The 1830s and 1840s have been described as the first restrictionist period for U.S. immigration because many people supported and sought restrictions on immigration and singled out certain groups of people, who were the newcomers of that time.⁵ Many of these restrictions were enacted as a result of racial tensions stemming from the influx of Catholics⁶ in the eastern part of the United States and of Asians arriving in the western United States. Although no federal restrictionist legislation was passed until after the Civil War, many local jurisdictions passed ordinances that discriminated against newcomers.⁷

Despite language of the Fourteenth Amendment, the citizenship of the children of immigrants was questioned and challenged during the post-Civil War period. The Chinese Exclusion Act passed by Congress in 1882 allowed for the exclusion of persons from China; these laws were expanded in 1885 and 1887 to allow for the deportation of people from China who entered the United States in violation of contract labor laws.⁸ Finally in 1898, the Supreme Court upheld the jus soli principle articulated in the Fourteenth Amendment, holding that a child born in the United States to Chinese citizen parents is a U.S. citizen, and therefore is not subject to the Chinese Exclusion Act.⁹ However, the Chinese Exclusion Act was held to be constitutional¹⁰ and enforced for more than 60 years until it was repealed in 1943.¹¹

Fast-forward to the turn of the 21st century, and current anti-immigrant groups have likewise been seeking to restrict immigration. Immigration laws passed in 1990 and 1996 established numerous restrictions on immigration, affecting both legal and undocumented immigrants.¹² Since then, each successive administration has adopted stricter policies and more punitive enforcement practices within the immigration agencies. State and local jurisdictions are passing anti-immigrant laws and ordinances.¹³ Some immigration restrictionist groups have gone so far as to denounce the principle of birthright citizenship and have been lobbying to abolish it. In order to disestablish birthright citizenship, Congress would have to pass an amendment to the Fourteenth Amendment of the U.S. Constitution by a two-thirds majority in both houses. After passing Congress, the proposed amendment would then have to be ratified by more than half the 50 states, a highly unlikely scenario.¹⁴

§ 27.1.2—U.S. Citizenship By Birth In The United States Or In Certain Incorporated Territories

The Fourteenth Amendment of...