United States v. Wong Kim Ark

United States v. Wong Kim Ark was an 1898 U.S. Supreme Court case in which the Court ruled 6–2 that a child born in the U.S. to Chinese nationals with permanent residence—but not citizenship—automatically becomes a U.S. citizen. The ruling established a key—and as of now legally unchallenged—precedent that the Citizenship Clause of the Fourteenth Amendment (ratified in 1868) should be interpreted broadly.

WongKimArkPlaintiff Wong Kim Ark, who was born in San Francisco in 1873, to Chinese parents who were legally domiciled and resident there at the time. Following a trip abroad, Wong returned to the U.S.—which had done without incident before—only to be denied entry based on the 1882 Chinese Exclusion Act, which prohibited immigration from China. Border agents argued that Wong was actually a Chinese subject rather than a citizen because his parents were Chinese, and thus the Act applied to him.

Wong challenged the government’s refusal to recognize his citizenship, and both the district court in California and the Ninth Circuit Court agreed he had citizenship. The government appealed all the way up to the Supreme Court, which had never decided the question of the citizenship status of U.S.-born children of alien parents.

The case highlighted disagreements over the precise meaning of Citizenship Clause—namely, the provision that a person born in the U.S. who is “subject to the jurisdiction thereof” acquires automatic citizenship. The Supreme Court’s majority concluded that the clause needed to be interpreted in light of English common law—from which the U.S. legal system derives—which for centuries had recognized virtually all native-born children as automatic citizens, except those born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces occupying the territory in wartime. Thus, they concluded that the phrase “subject to the jurisdiction thereof” referred to being required to abide by U.S. law, thereby granting U.S. citizenship to at least some children born of foreigners because they were born on American soil—a concept known as jus soli, or “right of soil”.

By contrast, the court’s dissenters argued that being subject to the jurisdiction of the U.S. meant not being subject to any foreign power—i.e. not being a citizen by another country, such as through jus sanguinis (“right of blood”), citizenship is granted only to anyone born to a citizen (this is the most common approach worldwide). This interpretation would exclude most children of foreigners, such as those whose parents were staying for a limited time, or who otherwise have no intention of becoming U.S. citizens. This foreshadowed the current debate about whether birthright citizenship should apply to children born to illegal immigrants.

However, the dissenters also cited racial and cultural reasons why Chinese, in particular, could not be full-fledged citizens, namely that Chinese law made renouncing one’s allegiance to the Emperor a capital crime. Of course, this assumed such allegiance mattered to one’s eligibility for U.S. citizenship: based on the two dissenters’ interpretation of jurisdiction, it does, since it means they are thus subject to a foreign power; but the other six justices rejected this argument, since they interpreted jurisdiction differently.

Wong’s victory was shocking given the widespread resentment and discrimination against Chinese, as evidenced by an act of Congress dedicated specifically to excluding them. An editorial in the San Francisco Chronicle published two days after the decision may have captured the prevailing reaction: namely that it would open the door to citizenship and voting rights to other undesirable peoples, such as Japanese and Native Americans; the editorial suggested that “it may become necessary … to amend the Federal Constitution and definitely limit citizenship to whites and blacks.”

In any event, the broad jus soli principle established by Wong Kim Ark has never been seriously questioned by the Supreme Court or any lower court, notwithstanding occasional Congressional attempts to pass a law or even ratify an amendment to restrict it. In the 1982 case Plyer v. Doe, the Supreme Court reaffirmed the broad view of the Citizenship Clause, ruling that illegal alien children are people “in any ordinary sense of the term,” and therefore had protection from discrimination unless a substantial state interest could be shown to justify it. Both the majority and the dissent agreed on the broad interpretation of the Citizenship Clause:

Texas officials had argued that illegal aliens were not “within the jurisdiction” of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful.”

The dissenting opinion also rejected this claim, agreeing with the Court that “the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.” The dissent simply concluded that the distinction the statute drew should survive an equal protection attack.

Nonetheless, legal scholars remain increasingly divided about Wong Kim Ark’s application to children born to illegal immigrants. One argument is that the jurisdiction of the U.S. requires a status of “full and complete jurisdiction” that naturally does not apply to foreign nationals who are in the country illegally. A counter-view is that because Wong’s parents were themselves not eligible for citizenship and other rights, their situation is very much like those of illegal immigrants. Scholars differ on the original intent of the Fourteenth Amendment, with some claiming the drafter never had in mind to permit unconditional jus soli citizenship, while others have found debates and conversations among the Senators involved suggesting that they did.

Americans Won’t Take Back the Jobs that Immigrants “Stole”

All these Americans talking about foreigners taking their jobs, and they still won’t walk the walk about filling those jobs, according to Bloomberg:

American farmers have been complaining of labor shortages for several years now. Given a multi-year decline in illegal immigration, and a similarly sustained pickup in the U.S. job market, the complaints are unlikely to stop without an overhaul of immigration rules for farm workers.

Efforts to create a more straightforward agricultural-workers visa that would enable foreign workers to stay longer in the U.S. and change jobs within the industry have so far failed in Congress. If this doesn’t change, American businesses, communities and consumers will be the losers.

Perhaps half of U.S. farm laborers are undocumented immigrants. As fewer such workers enter the U.S., the characteristics of the agricultural workforce are changing. Today’s farm laborers, while still predominantly born in Mexico, are more likely to be settled, rather than migrating, and more likely to be married than single. They are also aging. At the start of this century, about one-third of crop workers were over the age of 35. Now, more than half are. And crop picking is hard on older bodies.

One oft-debated cure for this labor shortage remains as implausible as it has been all along: Native U.S. workers won’t be returning to the farm.

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The Rights of Immigrants in the U.S.

How America treats foreigners, regardless of their legal status, is of supreme importance morally, politically, and even diplomatically. It speaks to our values, impacts our standing in the world, and may even influenced the way our own citizens are treated abroad. This is not a bleeding heart talking point, but the sober and matter-of-fact conclusion of the U.S. Supreme Court in Arizona v. U.S. (2012), as cited and recounted by the Fifth Circuit Court in Hernandez v. U.S. (2014): Continue reading

Over 80% Top Science Students Second Generation Immigrants

Among the major consequences of curtailing immigration to the United States would be losing access to the world’s best and brightest — and their children and grandchildren. As Forbes reported:

A new study from the National Foundation for American Policy found a remarkable 83% (33 of 40) of the finalists of the 2016 Intel Science Talent Search were the children of immigrants. The competition organized each year by the Society for Science & the Public is the leading science competition for U.S. high school students. In 2017, the talent search competition was renamed the Regeneron Science Talent Search, after its new sponsor Regeneron Pharmaceuticals,and a new group of 40 finalists – America’s next generation of scientists, engineers and mathematicians – are competing in Washington, D.C., from March 9 to 15, 2017.

Both family-based and employment-based immigrants were parents of finalists in 2016. In fact, 75% – 30 out of 40 – of the finalists had parents who worked in America on H-1B visas and later became green card holders and U.S. citizens. That compares to seven children who had both parents born in the United States.

To put that in perspective, even though former H-1B visa holders represent less than 1% of the U.S. population, they were four times more likely to have a child as a finalist in the 2016 Intel Science Talent Search than were parents who were both born in the United States.

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Immigrants in U.S. Largely Law Abiding

According to one of the largest and most comprehensive studies of its kind, immigrants in the United States are not only overwhelmingly law abiding, but their increased presence in many communities has mostly correlated with a reduction in crime. From the New York Times:

According to data from the study, a large majority of the areas have many more immigrants today than they did in 1980 and fewer violent crimes. The Marshall Project extended the study’s data up to 2016, showing that crime fell more often than it rose even as immigrant populations grew almost across the board.

In 136 metro areas, almost 70 percent of those studied, the immigrant population increased between 1980 and 2016 while crime stayed stable or fell. The number of areas where crime and immigration both increased was much lower — 54 areas, slightly more than a quarter of the total. The 10 places with the largest increases in immigrants all had lower levels of crime in 2016 than in 1980.

And yet the argument that immigrants bring crime into America has driven many of the policies enacted or proposed by the administration so far: restrictions to entry, travel and visas; heightened border enforcement; plans for a wall along the border with Mexico. This month, the Justice Department filed a lawsuit against California in response to the state’s restrictions on local police to assist Immigration and Customs Enforcement officers in detaining and deporting undocumented immigrants charged with crimes. On Tuesday, California’s Orange County signed on in support of that suit. But while the immigrant population in the county has more than doubled since 1980, overall violent crime has decreased by more than 50 percent.

There’s a similar pattern in two other places where Mr. Trump has recently feuded with local leaders: Oakland, Calif., and Lawrence, Mass. He described both cities as breeding grounds for drugs and crime brought by immigrants. But Oakland, like Orange County, has had increasing immigration and falling crime. In Lawrence, though murder and robbery rates grew, overall violent crime rates still fell by 10 percent.

In general, the study’s data suggests either that immigration has the effect of reducing average crime, or that there is simply no relationship between the two, and that the 54 areas in the study where both grew were instances of coincidence, not cause and effect. This was a consistent pattern in each decade from 1980 to 2016, with immigrant populations and crime failing to grow together.

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America’s Changing Demographics

As The Guardian reports, an already-diverse American population is about to become even more pluralistic, as Europe’s historic role as a major source of immigrants shifts to Asia and Latin America.

An increase in Asian and Hispanic immigration … will drive U.S. population growth, with foreign-born residents expected to make up 18% of the country’s projected 441 million people in 50 years, the Pew Research Center said in a report being released on Monday.

This will be a record, higher than the nearly 15% during the late 19th century and early 20th century wave of immigration from Europe.

Today, immigrants make up 14% of the population, an increase from 5% in 1965.

The tipping point is expected to come in 2055, when Asians will become the largest immigrant group at 36%, compared with Hispanics at 34%. White immigrants to America, 80% back in 1965, will hover somewhere between 18% and 20% with black immigrants in the 8%-9% range, the study said.

Currently, 47% of immigrants living in the U.S. are Hispanic, but by 2065 that number will have dropped to 31%. Asians currently make up 26% of the immigrant population but in 50 years that percentage is expected to increase to 38%.

Immigrants from China and India will largely be driving the trend. The news might surprise most Americans given all the attention and concern regarding arrivals from south of the border; but with birth rates and economic prospects alike stabilizing, far fewer Latin Americans will be coming to the U.S. — though Hispanics will still remain the largest minority, owing to higher births within the country, rather than foreign arrivals.  Continue reading

Mexico: Land of Opportunity?

There’s a widespread misconception — bolstered by news media and political rhetoric — that the U.S. is enduring a flood of migrants from Mexico. On the contrary, both legal and illegal immigration from south of the border has declined by 80 percent since 2007, the lowest at any point since 1991. The number of Mexicans returning home outnumbered those leaving the country — in fact, more Americans have left for Mexico than the other way around, with the number surging since 2005. Subsequently, our southern neighbor hosts over one million U.S. citizens, more than any other country in the world. 

Furthermore, this trend is likely to be permanent, because Mexico is actually doing far better than most people realize. Since the recession, it’s economy has grown twice as fast as America’s (albeit from a much lower base). Depending on how you measure it, Mexico has the 11th to 14th largest economy in the world, with some sources predicting that it will grow to become the fifth or seventh largest by 2050 (around the level that France, the UK, and Germany are today). A few scholars even believe that Mexico could become an influential global power, which isn’t far fetched when you consider that in some areas, it’s comparable or superior to China, India, Russia, and other emerging powers. 

Since the mid-1990s, the majority of Mexicans have become part of the rapidly growing middle-class, with the country recently being classified as a newly-industrialized nation. Mexico’s average life expectancy and poverty rate is comparable to the U.S. (thanks in part to its universal healthcare system), while one-third of Mexican states have a crime rate equal to or less than America’s. While the country is still enduring many problems — including one of the worst rates of violence and income inequality in the world — it’s not the dystopia that popular culture and news media make it out to be.