1804 part 2

[Chicken Little]

quote:Originally posted by Breadburner

Yes....I have had mucho correspondence from frineds throughout the globe saying how weak Oklahoma is appearing and I better pack up post haste....

Well, then maybe you need more friends, friend.  Word on the street is that we all are going to drown in the shallow end of the gene pool on this brown baby thing.  That, Okie will become a euphemism for stupid.  Oh, wait...

It's going to unravel the whole anti-immigration wedge issue.  And where would you all be without your wedge issues?

Don't run away on my account, stick around, you're tolerable.  But don't b*tch when the State we both love comes out a loser in this deal, and people on both sides of this issue are p*ssed at us.

[iplaw]

Originally posted by Chicken Little

quote:
What this says is that your folks, their allegiances, origins, and citizenship have nothing to do with your citizenship.  And, in fact, that citizenship is derived through birth.

So, when you say, "Citizenship is only a right to those born to legalized citizens or foreign nationals who are here legally." you are claiming parentage matters.  It clearly don't.  And your huffing and puffing is not going to blow that house down.  In the non-lawyer world, we call this acting like a lawyer.

Again, you should try reading the actual opinion next time instead of a summary.  Your first highlighted line doesn't appear in the opinion at all.

I'll make it easy for you and paste the holding of the opinion for you to read:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent 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. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

The opinion explicitly states that the parents must have PERMANENT domicile and residence within the US.  The judge didn't throw that in for sh!ts and giggles, it actually affected the opinion of the court.

And this is why.  According to precedent in Loc v I.N.S.:

A child inherits the domicile of their parents, and an individual (a parent in this case) in the United States illegally "cannot lawfully possess an intent to be domiciled in this country".  

Therefore the child is NOT domiciled in the US since their parents are not domiciled within the US making them illegal as well.

Again, actually reading the holding of an opinion might help next time...

[iplaw]

quote:Originally posted by we vs us
While you're correct in a very narrow way -- there is no specific law stating explicitly that being born here in all cases guarantees citizenship -- it's been assumed to be true by the Supreme Court since the 14th amendment became law. Wong makes that assumption, as does Plyler v. Doe, which clarifies the phrase "within the jurisdiction of" in regard to residing in states, saying in part:    

quote: no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful

Correct is correct, no matter the degree, and assumptions do not make good law.

As to Plyler, that case did not address the issue of anchor babies.  Different facts will yield differing results, and the question of "jurisdiction" is only one variable in the equation. (See my answer to CL above for more)

quote:
So, really, unless you can amend the Constitution to say what you want it to say, or unless you can get Congress to craft some legislation saying it explicitly, then the law of the land is, you're born here and you're a citizen.  Pretty much full stop.

Unfortunately, the law doesn't work that way...

In fact, the legality of immigrant citizenship is covered under various Acts, as your wiki article stated.  Affirmatively legislating that anchor babies are not immediately granted citizenship would not take an amendment to the Constitution, just amendment of existing Acts.

[pmcalk]

IP, you may have read the case, but I don't think you read the whole case.  The only restriction the 14th Amendment places on citizenship for persons born in the United States is that they must be subject to its jurisdiction.  Arguing that the facts of Wong mandate a narrow holding ignores the extensive discussion of what "jurisdiction" truly means, and how broadly the Court interpreted it. From Wong:

quote:It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher's case in 1851, and since repeated by this court: 'Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance,-it is well known that by the public law an alien, or a stranger [169 U.S. 649, 694]   born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be.'

The court viewed jurisdiction to simply refer to a geographical area.  There were no other restriction placed upon the right to citizenship by birth.  To dismiss Plyler as "not being about anchor babies" ignores that they were specifically discussing the issue of jurisdiction within the context of the Fourteenth Amendment.  Dismissing the argument that students were not "within the jurisdiction," the Court stated in a footnote:

quote:Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words `subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words `within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons `within the jurisdiction' of one of the States of the Union are not `subject to the jurisdiction of the United States.'" Id., at 687.

Justice Gray concluded that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States." Id., at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.

Can you provide a cite for your Loc case?

[iplaw]

Originally posted by pmcalk

quote:
IP, you may have read the case, but I don't think you read the whole case.  The only restriction the 14th Amendment places on citizenship for persons born in the United States is that they must be subject to its jurisdiction.  Arguing that the facts of Wong mandate a narrow holding ignores the extensive discussion of what "jurisdiction" truly means, and how broadly the Court interpreted it. From Wong:

quote:It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher's case in 1851, and since repeated by this court: 'Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance,-it is well known that by the public law an alien, or a stranger [169 U.S. 649, 694]   born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be.'

The court viewed jurisdiction to simply refer to a geographical area.  There were no other restriction placed upon the right to citizenship by birth.  To dismiss Plyler as "not being about anchor babies" ignores that they were specifically discussing the issue of jurisdiction within the context of the Fourteenth Amendment.  Dismissing the argument that students were not "within the jurisdiction," the Court stated in a footnote:

quote:Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words `subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words `within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons `within the jurisdiction' of one of the States of the Union are not `subject to the jurisdiction of the United States.'" Id., at 687.

Justice Gray concluded that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States." Id., at 693. As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.

Again, if you look at the holding, you see a very explicit question being asked which generated a very specific answer from the judge.  You know as well as I do that when SCOTUS accepts a petition for cert it's usually limited to specific questions.  The judge explicitly stated that the parents domicile was a part of the calculus for a reason.  

Here is a more recent case dealing with the issue of domicile: Melian v Immigration and Naturalization Service, 987 F2d 1521, which states, in part, "In order to have 'lawful domicile,' then, an alien must have the ability, under the immigration laws, to form the intent to remain in the United States indefinitely. . . . Thus an alien who enters the country illegally cannot have a 'lawful' intent to remain here."

So simple geographical determinations of jurisdiction are clearly incorrect under modern immigration jurisprudence.

quote:
Can you provide a cite for your Loc case?

Loc v Immigration and Naturalization Service, 681 F2d 107 (Deals with expired visas, but contains the quote I used)

Finally, you can't forget Elk, (112 US 94 (1884)), which was discussed at length in the opinion. The Elk court held that "subject to the jurisidction of" did not encompass "children of ministers, consuls, and citizens of foreign states born within the United States."  The court in Wong apparently decided not to disturb this clearly explicated precedent.

The only way to clear the water on the issue of "subject to the jurisdiction of" is to have the Court clearly define a rule based upon an unambiguous fact pattern involving an illegal alien giving birth to a child on US soil.  Until then it's speculation.

But it's fun discussing it with another lawyer...

[]

[guido911]

IP wrote: "The only way to clear the water on the issue of "subject to the jurisdiction of" is to have the Court clearly define a rule based upon an unambiguous fact pattern involving an illegal alien giving birth to a child on US soil. Until then it's speculation."

No it's not.

RW