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ResourcesVisa & Immigration LawNationality LawAmerican Birthright Citizenship Is Not A "Legal Loophole"

American Birthright Citizenship Is Not A "Legal Loophole"

Transcript of the above video:

As the title of this video suggests, we are discussing American Birthright Citizenship.  That is US Citizenship which is garnered by dint of being born in the United States regardless of one's parentage. 

I am specifically bring this up in the context of certain Thai media outlets specifically to this video we are going to look at one that came out in the Bangkok Post. There has been some talk of a woman who had a child in the United States and was posting some things on social media talking about it. It caused some consternation among certain folks but I am not really going to get into that specifically. I want to get into the notion that Birthright Citizenship is not a legal loophole. It is in fact one of the pillars of American Nationality Law frankly and I will get into that here in a moment.

In a recent article from the Bangkok Post bangkokpost.com the article is titled Police Doctor Draws Flack over US Citizenship for Son.  Quoting directly,”Former Deputy Police Spokesman is facing criticism after urging Thai women to deliver babies in the United States, as she did so, that their newborns can get American Citizenship. Quoting further, in the post they are talking about, it seems to be some sort of Instagram or Social Media post. "The post which was shared a few hundred times drew several comments, mostly negative.  Some commentators viewed the plan as taking advantage of a legal loophole."  Quoting further, "Thais living in the US on Thursday lodged an online We the People Petition asking the White House to revoke the American Citizenship of her son. This is immigration fraud by misrepresenting the purpose of her visit to gain entry, reads the petition." 

A couple of things here: first of all, just solely or the notion that one is born and gains nationality by dint of being born in a given jurisdiction, sort of "law of the soil" if you will is different than jus sanguinis which is  "law of the blood" whereby you gain Citizenship solely by blood. Certain countries have different rules with respect to this and it varies across the board. Some countries it is purely by the blood; it is purely by your parentage; some countries it is mixed, depending on how much time you spend in a given country; and some countries are purely based on birth in a jurisdiction. United States for example, it is my understanding that jurisdictions like Brazil and Canada grant citizenship just simply by being born in that country.  Other countries do not do that and again it varies country-by-country depending on the circumstances of one's parentage and the circumstances of one's birth. But I want to be clear. You can agree or disagree with the notion of Birthright Citizenship and I don't want to get into that in this video. The point I want to make is Birthright Citizenship is not a legal loophole. This is a fundamental aspect of the nationality side of American law and I have had many cases over the years where an individual citizenship was solely based on their birth in the United States. Now is there a fraud element in this case? Difficult to say with any certainty without knowing all of the facts. However if someone does misrepresent their intentions to go to the United States in a non-immigrant capacity, that individual could be subject to citation for immigration fraud depending on the circumstances.

That being said an unborn child cannot form intent and regardless of the circumstances by which they came into the United States, their birth in the United States under American law as it currently stands, the law is clear. That individual born in the United States is an American citizen. Again people can agree or disagree with that but I just wanted to make this video because it had just been something that as a lawyer was kind of nagging me when I read the article; the notion that this is a loophole. Not at all. This is just an aspect of American Nationality Law that has existed for quite some time and yes there are some folks that will use subterfuge when undertaking the process of getting into the United States in order to have a child there and that is unfortunate. But first of all you have got to remember the child didn't have anything to do with it and US law is what it is. That child born on US soil is an American citizen.