Interesting case on birthright citizenship

The Fourteenth Amendment to the United States Constitution provides (in part) 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.” What does the phrase “and subject to the jurisdiction thereof” mean? Nowadays, the right claims that this excludes the children of undocumented aliens. But this would mean that we can’t try undocumented aliens for any crimes they commit because our courts lack jurisdiction, which is nonsense. It seems clear that this phrase was meant to exclude Native Americans born on reservations (and thus subject to their own tribal courts and not the US or state courts) from birthright citizenship. Congress granted them citizenship in 1924.

But diplomats have diplomatic immunity and are not subject to US jurisdiction. It is therefore clear that their children do not enjoy birthright citizenship. In this case, the father of an ISIS bride left his diplomatic post and supposedly relinquished his diplomatic immunity in September 1994 a few weeks before her birth but the UN mission did not officially notify the US government of this fact until February 1995. The US government acknowledged in 2004 that he left his post in September 1994. So this case is going to turn on when he lost his diplomatic immunity. I suspect that the answer to this question lies in the Vienna Convention on Diplomatic Relations but I haven’t had the time to examine this. If I find the time (unlikely given the presence of a four-month old infant), I will update this post.

A federal judge on Monday denied a request from the family of Hoda Muthana, an American-born woman who left Alabama to join ISIS, to expedite consideration of her case, finding there was not sufficient evidence she would be irreparably harmed.

One thought on “Interesting case on birthright citizenship

  1. Ironic that the commentary about a five-month-old infant (Sept 1994 to Feb 1995) should be thwarted by a four-month-old infant!

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