Every Immigrant and Child of Immigrants in the United States Should be Alarmed by Trump’s Attack on Birthright Citizenship

Every immigrant and child of immigrants in the United States should be alarmed by Trump’s attack on birthright citizenship to question the eligibility of Kamala Harris to serve as president. The conservative legal attack on birthright citizenship is no longer just a fringe argument. If Trump gets another term, it could well become law, removing citizenship from millions of Americans born in the U.S. to immigrant parents.

Trump has tweeted that “So-called Birthright Citizenship, which costs our Country billions of dollars and is very unfair to our citizens, will be ended one way or the other. It is not covered by the 14th Amendment because of the words “subject to the jurisdiction thereof.” Many legal scholars agree. . .”

Almost immediately after Joe Biden announced that he had chosen California’s junior U.S. Senator, Kamala Harris, as his running mate, Newsweek magazine published an article by Chapman Law School professor John Eastman questioning whether Harris is eligible to be president.  Eastman’s argument against Harris’ eligibility stems from his belief that she is not a “natural born” citizen of the United States under the language of the U.S. Constitution because, although she was born in this country, neither of her parents were U.S. citizens at the time of her birth.

Here is Eastman’s succinct statement of his argument against birthright citizenship:

“The language of Article II is that one must be a natural-born citizen. The original Constitution did not define citizenship, but the 14th Amendment does — and it provides that “all persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens.” Those who claim that birth alone is sufficient overlook the second phrase. The person must also be “subject to the jurisdiction” of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). Such was the view of those who authored the 14th Amendment’s Citizenship Clause; of the Supreme Court of the United States in the 1872 Slaughter-House Cases and the 1884 case of Elk v. Wilkins; of Thomas Cooley, the leading constitutional treatise writer of the day; and of the State Department, which, in the 1880s, issued directives to U.S. embassies to that effect.” (Emphasis in original).

This is not a new argument for Eastman or many other “Federalist Society” conservatives.  “Birthright citizenship” — the principal that one become a U.S. citizen simply by being born in the United States — has long been a target of those who want to limit immigration, as well as those who want to keep America white.

The principle of birthright citizenship in our Constitutional law was inherited from the English common law, where it was called jus soli (“right of soil”), in contrast to citizenship based on the principle of jus sanguinis (“right of blood”).

As opponents of birthright citizenship often point out, very few other countries endow citizenship in this way; instead, most countries require that one or both of a person’s parents be citizens of the country before their children can be citizens, regardless of where the childen were born.

The eligibility requirements for U.S. president and vice president are spelled out in Article II of the Constitution:

Wong Kim Ark in 1904

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

The Constitution did not originally define citizenship.  However, in 1868, as part of an historic overhaul of the Constitution in the aftermath of the Civil War known as the Reconstuction Amendments, the 14th Amendment was adopted to clarify who was to be deemed a citizen of the United States. The language of the 14th Amendment states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

As Eastman and other anti-birthright citizenship advocates point out, the specific purpose of this language was to overrule the Supreme Court’s Dred Scott decision that Black people were not citizens of the United States.  It was not until the case of United States v. Wong Kim Ark (1898) that this language was tested in regard to whether it applied to a child of immigrants.  In that case, the Supreme Court held, by a vote of 6-2, that under the Fourteenth Amendment, Wong Kim Ark, a man born in San Francisco to Chinese citizens who had a permanent domicile and residence in the United States — and whose parents were not employed in a diplomatic or other official capacity by a foreign power — was a citizen of the United States.  The majority held that the language o the 14th Amendment regarding citizenship did not just apply to African Americans, but should be interpreted in light of birthright citizenship principle of the English common law, which included virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country’s territory. Since that time, numerous subsequent decisions of the federal courts have applied the principle of birthright citizenship under the 14th Amendment to the children of foreign nationals born in the United States.

According to Eastman and many other conservatives, United States v. Wong Kim Ark was wrongly decided or has been wrongly interpreted. Specifically, Eastman contends that it misinterpreted the citizenship clause of the 14th Amendment, which should be understood only as a clarification and solidification of the citizenship status of former slaves and their descendents, not immigrants from China or other countries.

He further argues that the issue in Wong Kim Ark was whether a child born to Chinese immigrants “who had become lawful, permanent residents in the United States” and that “the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.”

Eastman then applies his anti-birthright citizenship analysis to the facts about the parentage of Kamala Harris, asking whether her parents (her mother was born in India and her father was born in Jamaica) were “merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act.”  If that were the case, Eastman argues, “then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers — Jamaica, in the case of her father, and India, in the case of her mother — and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.”

Kamala Harris’ parents, Shyamala Gopalan and Donald Harris, immigrants from India and Jamaica.

Let’s pause for a moment to understand the enormous impact of what Eastman is asserting — and which many other conservatives have also asserted and to which President Trump has now clearly stated his agreement.

First, it would mean that Kamala Harris is likely not eligible to be president (or vice president) of the United States.

Second, it would call into question the citizenship of tens of millions of Americans who were born in the United States but whose parents were not citizens.

Of course, it would also call into question the citizenship of their children and their children’s children, and so on.

I am not going to refute Eastman’s argument here. That has been done by many historians and constitutional law scholars and can be read here, here, and here.

What must be stressed is that the Eastman/Trump argument against birthright citizenship is no longer a fringe idea.  Instead, it is close to mainstream in conservative and Republican legal circles, such as the Federalist Society (which Trump and the Republican Party have given a prominent role in selecting federal judges) and could easily become the law of the United States if Trump gets another term and gets to appoint more Justices to the U.S. Supreme Court. 

Trump has made clear that he wants to end birthright citizenship “one way or another.” If that were to happen, the citizenship of tens of millions of people born in the United States to immigrant parents, and the children of these children, would be in question.

That’s part of what’s at stake in the 2020 Election.

 

 

 

 

 

 

Congratulations to My Dear Friend Zhihai Li on Becoming a Citizen of the United States!

Congratulations to my dear friend Zhihai Li on becoming a citizen of the United States!

I first met Zhihai at a community picnic. We soon realized we shared a deep belief in building strong connections of friendship and mutual respect among the many different immigrant and cultural groups in our community.

When I was elected to the Irvine City Council in 2016, I appointed Zhihai as my representative on the Irvine Children, Youth, and Famlies Committee.

Zhihai exemplifies the continued strength of the American Dream.

She attended Beijing University of Posts and Telecommunications (北京邮电大学) and first came to the U.S. in 1998 to study computer science. She received her Green Card in 2004 and worked for several years in the Chicago area helping launch several software companies. Zhilai then moved to Irvine where she engages in numerous business and community activities, including serving as Vice President at Re/Max Luxury Properties & Commercial Division.

In addition to her service on the Irvine Children, Youth, and Famlies Committee, she is president of the Chinese American Mutual Association (CAMA), [美国华人发展互助会是], a non-profit organization that helps new Chinese immigrants adapt to the American environment.

She is also a founder of I-Love-Irvine, a Chinese social media platform that serves 15000+ members of the Chinese Community in Irvine.

Zhihai is a Board Member of the Irvine Public Schools Foundation, a member of the Advisory Board for the UCI School of Education, and Secretary and Outreach Chair of the Cadence Park PTSA.

As president of the Chinese American Mutual Association, she is working on the First Chinese Culture Festival in Irvine, scheduled for June 2020.

She is also an award-winning ballroom dancer, a wife, and the mother of two extraordinary boys!

Congratulations Zhihai Li on your U.S. Citizenship!

I am so proud to call her my friend!

Korean American Center – KAC 무료 시민권 신청 행사 Free Citizenship Application Assistance!

For the first time South Orange County, a free event will be held to help Korean immigrants with applications for U.S. citizenship on Saturday, August 25, 2018, from 9:00 a.m. to 5:00 p.m. at Northwood Community Park, located at 4531 Bryan Ave, Irvine, CA 92620.

The event will include about 10 immigration attorneys and more than 50 experienced Korean speaking volunteers, who will help complete your citizenship documents with one-on-one services.

You must make reservations by telephone at (714) 449-1125.

시민권 신청 서류 (N400) 의 작성및 법적인 검토/상담  

FREE Citizenship Application (N-400) Assistance and Legal Review

2018년 6월 23일 (토) Saturday, August 25th
오전 9시부터 오후 4시까지 9 am – 4 pm

Korean American Center 코리안 아메리칸 센터
& Korean Community Services  코리안 복지센터

Northwood Comunity Park/Center, 4531 Bryan Ave, Irvine, CA 92620.

예약 전화 번호
Call for Appointment: 714-449-1125.

Anyone needing citizenship assistance is welcomed. This event is not only for Koreans.

필수 서류 Documents to Bring:

1) ID: 운전 면허증 또는 기타 신분증 (여권), 사회 보장 번호, 영주권 카드. Idenification: Driver’s License/Personal I.D, Social Security Number, and Green Card.

2) 지난5년간 거주, 취업/학교 정보: 거주한 주소, 취업한 회사 이름과 주소/ 학교 이름과 주소. – 정확한 날자를 기억하지 못하는 경우 최선을 다해 대략의 날자를 제공해 주어야 합니다. Work, School, Residence History: Where have you lived and worked/attended school during the last 5 years. You may provide approximate dates, only if you cannot remember the exact date.

3) 지난 5년간 24시간 이상 체류한 해외 여행 기록: (년,월,일): 해외로 나간 모든 여행의 출국.입국 일자 (육로나 해상으로 멕시코나 캐나다 여행한 것도 포함) 정확한날자를 기억하지 못하는 경우 최선을 다해 대략의 날자를 제공해 주어야 합니다
Trips Outside of the United States for more than 24 hours in the last 5 years (Month, Day, Year): Dates of departure and arrival of all trips outside of the United States, including trips to Mexico or Canada by land or sea (you may provide approximate dates, only if you cannot remember the exact date).

4) 현재의 결혼 신분: 배우자의 이름, 생년월일, 현 주소, 출생 국가, 결혼 일자, 이민신분, 이혼 또는 재혼 이상인 경우 상기 정보외에 모든 전 배우자의 사망 일자 또는이혼 일자 배우자가 영주권자인 경우 영주권 번호, 귀화 시민권자인경우 시민권 선서식 장소와 날자.  Current Marriage: Name of your spouse, address, date of birth, date of marriage (civil marriage, social security number, if your spouse is a permanent resident: must provide its number, if he/she became a U.S. citizen: must provide date and location of the oath ceremony where the ceremony was held).

5) 자녀: 이름, 생년월일, 출생 국가, 현 주소, 영주권자인 경우 영주권 번호.
Children: Name, date of birth, country of birth, address where each children lives. Resident numbers if they are permanent residents.

6) 범죄 기록: 사법 기관, 경찰, 이민 세관국,또는 이민서비스국과 법적인 접촉이 있었던 경우, 구류, 체포 또는 유죄 판결관련 서류/기록을 가지고 와야합니다. 또한 운전중 티켓받은 기록도 모두 정리해서 가지고와야 합니다. Criminal History: If you have ever come into contact with law enforcement, police, ICE, or immigration services, you must bring all documents/records connected to any detention, arrest, or conviction.

Hosted By:
Korean Community Services 코리안 복지 센터
Asian Americans Advancing Justice – OC
Korean American Center 오렌지 카운티 한미 문화 센터

See the Facebook event page HERE.