Saturday, July 2, 2011

Wong Kim Ark does not Grant Birthright Citizenship to Children Born of Illegal Aliens

A federal appellate court ruled for Wong Kim Ark, and the government appealed the case to the Supreme Court.

To come to a ruling, the Court had to interpret whether the Fourteenth Amendment truly granted Wong citizenship (The Geary Act requiring all Chinese persons to carry a “resident permit” due to his return from china in 1893), despite being born to two non-citizens who were ineligible to ever become citizens.

At the hearing, the District Attorney of the United States was permitted to intervene in behalf of the United States in opposition to the writ of habeas corpus issued October 2, 1895.

The case was submitted to the decision of the court upon the following facts agreed by the parties: That, at the time of his said birth, his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco.

It is conceded that, if he is a citizen of the United States, the acts of Congress, known as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution. (this is defined later in Gray’s opinion with: Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are " subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States.)

In Minor v. Happersett, "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." Gray proceeded to resort to the common law as an aid in the construction of this provision.

In Udny v. Udny, “The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.”

And then, while maintaining that the civil status is universally governed by the single principle of domicil, the criterion established by international law for the purpose of determining civil status.

The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

The case of The Charming Betsy, refers to (Jared Shattuck born in Connecticut before the American Revolution) a person born prior to the American Revolution and becoming a US Citizen by way of established law (the US Constitution 1787).

In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were "native-born citizens of the [p662] United States,".

Again, in Levy v. McCartee, “Common Law” practices prior to 1787.

In U. S. v. Rhodes (1866), it merely conveys that “Common Law” is in use prior to the 14th Amendment ratification of 1868.

Etc., etc. Now we move to the point of Gray interpreting the 14th Amendment.

At the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. [p668]

Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.

The “implied license” was in allowing the ship to port, in the Schooner Exchange. Thus those making port are in essence granted status as allowed by the Government, they were “permitted by the United states” to make port.

Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of, and owe allegiance to, the United States so long as they are permitted by the United States to reside here, and are " subject to the jurisdiction thereof" in the same sense as all other aliens residing in the United States.

It is true that Chinese persons born in China cannot be naturalized, like other aliens, by proceedings under the naturalization laws. But this is for want of any statute or treaty authorizing or permitting such naturalization, as will appear by tracing the history of the statutes, treaties and decisions upon that subject -- always bearing in mind that statutes enacted by Congress, as well as treaties made by the President and Senate, must yield to the paramount and supreme law of the Constitution.

The Convention between the United States and China of 1894 provided that Chinese laborers or Chinese of any other class, either permanently or temporarily residing in the United States, shall have for the protection of their persons and property all rights that are given by the laws of the United States to citizens of the most favored nation, excepting the right to become naturalized citizens.

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.

No one doubts that the Amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been, and yet, for two years afterwards, there was no statute authorizing persons of that race to be naturalized. It wasn’t until the INA of 1870 that they were “Naturalized”. The point is Wong Kims parents were in this situation, though they were here with the “permission of the USA” (Burlingame Treaty).

The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

VII. Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.

For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

According to Immigration Lawyer Gary Endelman, J.D., PhD, as stated in Bender's Immigration Bulletin, April 1, 2006, pages 307 - 340, one of the best Immigration Law Journals in publication or on the web:

Critics of birthright citizenship rightly point out that the parents of Wong Kim Ark, though they could never become citizens under the law then in effect, were resident aliens of the United States and their presence here was completely lawful. This is not a case dealing with the children of illegal aliens. Nonetheless, the importance of this case goes far beyond its specific facts. This is the flagship for birthright citizenship whose influence has extended down through many subsequent decisions until the present day. Not since Wong Kim Ark have federal courts seriously questioned birthright citizenship or doubted the meaning of the Citizenship Clause. The reasoning of Wong Kim Ark, namely that the rights of children should not be diminished by the status or conduct of their parents, has been extended by the courts to the protection of children where citizenship is not an issue. Children born out of wedlock, for example, can not be denied insurance for that reason. Children of the undocumented are entitled to a free public education. Newborns of illegal alien mothers must receive the same Medicaid coverage after birth in the United States as the children of citizen mothers. As the Supreme Court has made crystal clear, equal protection extends to “all persons within the territory of the United States,” including those whose presence here is subject to challenge. Precisely because the acceptance of Wong Kim Ark was, before 9/11, virtually universal, because neither the courts nor Congress seriously questioned it or sought to revisit the issue, we have never had any subsequent judicial scrutiny that really examined what the decision said and whether the Court got it right. The Court could have done this when deciding Hamdi v. Rumsfeld, where Hamdi was born in Louisiana while his father was working temporarily in the United States as an L-1 intra-company transferee before returning to Saudi Arabia while Hamdi was still a toddler. Hamdi did not return again to the United States before American military authorities brought him back here as an enemy combatant. However, the Court simply assumed that Hamdi was a citizen and offered no new insights into birthright citizenship. Sadly, however much we might agree or disagree with the wisdom or folly of such an assumption, this was a chance not taken. Had the Court not taken the easy way out, we might have learned some valuable lessons about whether, and to what extent, birthright citizenship has a place in our post-9/11 world.

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