Page 39 - Foreign Service Journal - September 2013

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and the idea that American customs and values should be a
factor in determining who becomes a citizen, will practically be
But why? And what role has the State Department played
in the process of redefning citizenship? Over the past 12 years
these questions have come to a head in the department’s inter-
pretation of a law that most people have never heard of: the
Child Citizenship Act of 2000.
Gaming the System
Te Child Citizenship Act was originally intended to help
foreign-born adopted children already living in the United
States with their adoptive American parents (or about to immi-
grate to the United States) acquire citizenship automatically.
Before the legislation was passed, there were many cases of
foreign-born adopted children living in the U.S. whose parents
had been unable to naturalize them. Tis was often a result
of bureaucratic fatigue: after undergoing long and expensive
international adoption processes, the parents simply did not
take the last step.
In a few high-profle cases, some of those children who
broke the law were deported as resident alien ofenders back to
their “home” country—a place they had never lived. Te CCA
fxed that problem by automatically granting citizenship to
foreign-born adopted children under the age of 18 if they could
prove that they were “residing in” the United States with their
At the time the CCA was being debated, an argument
was made to have it also apply to the foreign-born biologi-
cal children of American citizens. Te reason for this was to
defnition of what an American is as the basis for the legal
defnition of who an American is. To qualify, you had to have
been born in the United States (jus soli–literally, “right of soil”),
or have two American parents (jus sanguinis—literally, “right
of blood”).
If you had just one American parent, you could qualify for
citizenship by demonstrating that you’d spent enough time in
the United States to absorb American customs and values from
that parent. Or if you had immigrated here, you could live and
work as a legal permanent resident for a set amount of time to
acquire these values and truly “become” an American citizen.
A Weakening Bond
No single defnition covers all sets of circumstances, to be
sure. For instance, you could be born in the United States to
non-American parents, then leave without living here. But
the key element is this: Being an American means more than
having a U.S. passport or an American parent. It means having
U.S. customs and values. Congress had long based citizenship
law on this concept, a fact memorialized in the Foreign Afairs
Manual (7 FAM 1133.3-2).
Over the last 30 years, though, with every piece of legislation
addressing immigration, that way of thinking has become less
central as a basis for our citizenship law. Starting in 1934, an
American citizen born abroad could lose his or her citizenship
by failing to reside in the United States for a certain amount of
time and before a certain age (the assumption being that with-
out doing so, one would never acquire U.S. values and would
have divided loyalties).
Tat law was repealed in 1978, and a system of “physical
presence” requirements replaced it, requiring one American-
citizen parent to have been present in the U.S. at least 10 years
to be able to transmit citizenship (and American customs and
values) to his or her foreign-born children.
In 1986, the “physical presence” requirement was reduced
to fve years, the assumption being that you only needed to
have spent that long here to transmit American customs and
values to your foreign-born children. More recently still, par-
ents who lack those fve years of “physical presence” have been
able to substitute their parents’ span of “physical presence” to
transmit citizenship via a “grandparent” exemption.
As I write this in late July, the Senate has recently passed an
amendment to the proposed immigration reform bill that will
codify a workaround for parents who can’t satisfy the fve-year
minimum (directly or indirectly) to transmit citizenship to
their foreign-born children. If this passes, physical presence,
Up to now, U.S.
immigration law has
used the philosophical
defnition of
American is as the basis
for the legal defnition of
an American is.