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Ok, so there is this border wall along the Southern border of the US. However, this wall is not constructed exactly at the border.

There is an offset of quite some distance where land south of the wall still belongs to the US but is inaccessible to people from the US side but is freely accessible to people from the Mexico side.

So if someone was to give birth to a baby on land that belongs to the US but is south of the wall, and has videographic evidence of the birth process to prove this fact, is the baby then eligible for US citizenship?

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  • 43
    This is an "edge case" more literally than most.
    – phoog
    Commented Jan 29, 2022 at 23:31
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    Of all the crazy scenarios around immigration and jus soli, this one is a great question.
    – Damila
    Commented Jan 30, 2022 at 0:31
  • 8
    Why wouldn't they be eligible? Don't confuse where someone puts a wall or checkpoint with the legal area/jurisdiction of a country.
    – BruceWayne
    Commented Jan 30, 2022 at 15:15

3 Answers 3

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The Supreme Court rules in US v. Wong Kim Ark ruled that the Fourteenth Amendment, which states

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

It is not disputed that said areas are "in the United States". The court found that "subject to the jurisdiction thereof" is intended

to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state

neither of which are the case in your scenario. Technically, the child is not "eligible" for citizenship, the child has US citizenship, it is just a matter of getting a government official to recognize it (e.g. in issuing a passport).

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    Getting a birth certificate that documents the birth in the US would probably resolve future problems. That may be difficult to get. Commented Jan 29, 2022 at 20:43
  • 11
    It would be simple-ish to get a certificate, the hard part would be complying with Texas Health and Safety Code Sec. 192.003 which requires you to register the birth. They do not make it at all easy to figure out how to file the report of birth.
    – user6726
    Commented Jan 29, 2022 at 21:00
  • 2
    This is because whoever erects the wall does not have the authority to forfeit jurisdiction, as it is used in the Constitution, on behalf of the U.S., correct? Federal courts though did have the power to interpret the Constitution in a way that would deprive citizens in such scenarios of their rights they just would be highly doubtful to do, right?
    – kisspuska
    Commented Jan 29, 2022 at 22:56
  • 5
    I would add that, while sovereign tribes were originally granted a special exemption by the Constitution, Native Americans have been citizens since 1920. Their children would now inherit citizenship through their parents. So that aspect of the situation has changed since 1898.
    – Davislor
    Commented Jan 30, 2022 at 21:48
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    @fectin If anything they do is “illegal,” they must be within the jurisdiction of the United States. The SCOTUS is specifically listing all the examples it can think of of people who cannot be prosecuted under the laws of the U.S., because they aren’t under its authority at all. “Occupation” in this context does not mean they take up space. Nobody who overinterprets that particular bit of dicta in that particular illogical way follows up with, “And therefore, they have committed no crime, because the United States concedes that its laws do not apply to them, just like diplomats.”
    – Davislor
    Commented Jan 31, 2022 at 18:53
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A legal precedent that is most closely related to your question is Matter of Cantu, 17 I&N Dec. 190 (BIA 1978).

In 1906, the Rio Grande was artificially diverted north, which cut off a part of Texas from the rest of the state. During this period, Mexico, and not the United States, exercised de facto jurisdiction over this area, but legally, it remained United States territory. (In 1970, it was ceded to Mexico by treaty, resolving the unusual situation.) In 1978, the Board of Immigration Appeals had to determine the citizenship of a man who was born in the area in 1935.

The majority distinguished between an actual renunciation of US jurisdiction over the land (which occurred in 1970) and a situation where the US had determined that it still had jurisdiction but simply chosen not to exercise it for some reason (speculated to be "because of fear of causing an international incident or disturbing international harmony"), which was the case prior to 1970. In the latter situation, US citizenship still attaches at birth due to the Fourteenth Amendment (although to pedantic, the Board merely refused to allow Cantu to be deported, and did not technically declare him to be a citizen).

A wall exists along some parts of the US-Mexico border, and not others. This question could have been asked about the parts that don't have a wall. The United States can't monitor all of the border, all the time; many people have succeeded in crossing into the United States between ports of entry. Would you imagine that, if they gave birth in an area that isn't regularly patrolled by CBP, it means the baby isn't a US citizen?

The wall really doesn't change anything. CBP could, if they saw fit, patrol the area south of the wall that is still part of the United States. The fact that that part isn't blocked off doesn't mean that it's legal for non-citizens to simply go there without being inspected by CBP. Even if one views the erection of the wall at a particular latitude as an implied decision not to exercise jurisdiction south of it, the Cantu precedent is that nothing about US jurisdiction for citizenship purposes is actually changed by such a decision.

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    " The fact that that part isn't blocked off doesn't mean that it's legal for non-citizens to simply go there" So could entering the video in court proceedings be used as evidence in prosecution of the mother?
    – Dragonel
    Commented Jan 31, 2022 at 19:35
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    @Dragonel Assuming the mother wasn't there legally, the mother was still alive, and the U.S. had a way to initiate a prosecution against her (which would generally require her to be currently present in the U.S. or some place that would extradite her,) then, sure, I don't see why not. Even if not entered into court proceedings, merely making the existence of the video known could result in a warrant for the device(s) containing it to be seized and searched for use as evidence. Of course, this also assumes that any relevant statutes of limitation haven't expired.
    – reirab
    Commented Jan 31, 2022 at 20:59
  • 2
    @Dragonel Granted, those restrictions would not apply to other administrative uses of the video, just criminal ones. It could be used in other cases against the mother, such as immigration proceedings, without those limitations. For example, if the video were used to assert citizenship for the child and then the child tried to sponsor the mother to enter the U.S., the immigration response would probably be a more bureaucratically-worded version of "lol. no. k thx bye." if they were aware of the video.
    – reirab
    Commented Jan 31, 2022 at 21:20
  • @reirab: "then the child tried to sponsor the mother to enter the U.S., the immigration response would probably be a more bureaucratically-worded version of "lol. no. k thx bye." if they were aware of the video" I see no reason why that would be relevant to the mother's ability to immigrate to the US when the child petitions her after the child turns 21.
    – user102008
    Commented Feb 2, 2022 at 17:41
  • @user102008 Why would evidence of previous unlawful entry for the express purpose of circumventing immigration laws not be relevant to a visa application? And, if that were not disclosed on the application, the application would then be fraudulent, which could result in a permanent entry ban, no?
    – reirab
    Commented Feb 2, 2022 at 18:07
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The birth would occur in a US state. As indicated in the answer by @user6726 the baby is a citizen at birth, unless the child of a diplomat. Although the citizenship exists in theory, exercising the privileges and performing the duties of a citizen in practice requires documentation of the citizenship; the most common method for US citizens born in the US to demonstrate their citizenship is a birth certificate issued by a US state. All the states require that births be registered. Once the birth is registered, a birth certificate can be obtained and will be sufficient proof of the baby's citizenship.

As an example, Texas Health and Safety Code [HSC §192.003 (d)] requires that the birth be reported, and if we suppose that only the mother was present, the mother would be obliged to report the birth to the local registrar of the registration district.

Texas has produced a Birth Registration Handbook which beginning on page 6, describes the proof that the mother would have to provide in order to register the birth. In summary, the mother would have to produce letters or affidavits showing that the mother had been pregnant, that someone other than the parents knew the baby was born alive, and an affidavit from a person who knew the mother was present in the registration district on the date of birth, and proof the birth occurred on the date stated.

The handbook alludes to alternative proof if the stated documentation is not available, and review by the "VSS Field services".

So, for Texas, whether the mother would be allowed to register the birth would depend on her travels on the day of birth and who was with her. If she didn't meet the requirements, she could go to a Texas court for an order to register the birth; the court might or might not find the video convincing.

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    U.S. citizenship is not contingent upon compliance with state law requirements regarding registration of births.
    – ohwilleke
    Commented Jan 30, 2022 at 22:23
  • State law compels the mother, or some other person present, to register the birth. If the state resists accepting the registration, the family could weigh which legal forum, state or federal, is the best next step. Commented Jan 30, 2022 at 22:34
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    But, even if the application were made in a federal passport application 20 years later, that wouldn't prevent U.S. citizenship from being present.
    – ohwilleke
    Commented Jan 30, 2022 at 22:35

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