Thursday, August 5, 2010

The 14th Amendment and Jus Soli

In naturalization, jus soli, which is Latin for “right of ground or soil”, is also known as birthright citizenship; that is the right by which nationality or citizenship can be recognized to any individual born in the territory of the country applying such doctrine.

At the turn of the nineteenth century, countries divided themselves between those granting nationality on the grounds of jus soli and those granting nationality on the grounds of jus sanguinis, which is “right of blood”. Most European countries at the time chose the concept of an "objective nationality", based on blood, race or language, opposing the principle of "subjective nationality", based on an every-day referendum of one's appurtenance to his or her Fatherland. This non-essentialist principle of nationality allowed the implementation of jus soli, against the essentialist jus sanguinis.

Regulation of the acquisition of nationality or citizenship of a country by birth on the territory of such country is provided by a derivative law called lex soli, which means “law of the soil”. That is the law each country established for acquisition of citizenship in that country by birth in such country. Most countries provide a specific lex soli, in application of the respective jus soli, and it is the most common means of acquiring nationality. A frequent exception to lex soli is imposed when a child was born to a parent in the diplomatic or consular service of another country, on a mission to the country in question.

As we have seen recently, there is a move in the United States towards trying to restrict lex soli by requiring that at least one of the child's parents be a national or a legal permanent resident of the country in question at the child's birth, or that the child be a foundling found on the territory of the state in question (e.g., see subparagraph (f) of 8 U.S.C. § 1401). The primary reason for imposing this requirement is to limit or prevent people from travelling into the U.S. with the specific intent of gaining citizenship for a child.

Notwithstanding, jus soli is formally stated in the Fourteenth Amendment, judicial authorities recognize that the philosophy was integral at the conception of this country's constitution.

The 14th Amendment reads, in pertinent part, "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." This makes citizens of all persons born in the United States, provided they are subject to U.S. jurisdiction at the time of their birth - that is, they are not the children of foreign diplomats and like persons who, having diplomatic immunity, are not subject to U.S. jurisdiction while they are in the country for diplomatic purposes.

At the time the Fourteenth Amendment was ratified in 1868, it excluded Aboriginal Americans because they were not considered subject to the jurisdiction of the United States. Congress declared it policy to extend citizenship to all Aboriginal peoples in 1924, which was realized in 1968 with the Indian Civil Rights Act.

This scope of the Fourteenth Amendment was addressed in 1898 by the Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898). In a 6-2 decision, the Court rejected arguments that petitioner was not "subject to the jurisdiction" of the United States because that phrase applied to exclude (1) children born to foreign diplomats and (2) children born to enemy forces engaged in hostile occupation of the country's territory. Petitioner did not fall within either category. The Court also rejected the government's attempt to limit Section 1 of the 14th Amendment by arguing it was intended solely to allow former slaves and their descendants to become citizens. The Court held the petitioner, a child of subjects of the Emperor of China whose parents were lawfully living in the United States where he was born, was a U.S. citizen by birth. Notwithstanding the Chinese Exclusion Act of 1882, his citizenship status could not be revoked because his parents were not American citizens at the time of his birth, or because they and he made several trips to China afterwards.

Any remaining doubts about the scope of the Fourteenth Amendment were resolved by the Supreme Court's decision in Plyler v. Doe, which held that “the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter.”

Wednesday, July 21, 2010

Women as a particular social group seeking asylum

The Ninth circuit Court of Appeals recent July 12, 2010 decision in Perdomo v. Holder No. 06-71652 sent shock waves throughout the immigration practice. Practitioners and opponents of the decision immediately signed to provide commentaries, discussions, and analysis on the impact the Court’s decision would have on asylum law.

To have a better understanding of how the decision impacts current asylum immigration law, we must first take a look not only at the 1985 seminal Asylum case of Matter of Acosta 19 I&N Dec. 211 (BIA 1985) but at the foundation of asylum law in general starting with no less but the Emma Lazarus’ famous poem engraved in the pedestal of our Statute of Liberty. And so it is that this country proclaimed: "Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!" and literally gave meaning to the concept of asylum.

Then we must visit the concept of “women” as a group who may be persecuted and therefore eligible for asylum protection. To have a better understanding of women as a group, we look at the protections afforded to women under the laws within the United Sates in general.

Many have through history come to the United States seeking protection from persecution in their own home country because of their race, their religion, their nationality or political opinion and through the years, many have also been granted protection and allowed to remain in the United States. In addition to the grounds enumerated above, asylum has been granted to certain individuals on the grounds of belonging to a “particular social group”.

The concept of “particular social group” as an enumerated ground under the Immigration and Nationality Act (INA) as a basis for asylum has evolved through the years since the decision in Acosta. Acosta defined a particular social group as “a group with members who share a common, immutable characteristic that members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences”. See Matter of Acosta, id. at 233.

Those seeking protection from persecution as a result of their race, religion, nationality, political opinion, or other “immutable characteristic” share by a particular group they belonged to could claim asylum in the United States. Longing to be free and “tempest-tossed” they came to this country and sought refuge.

Case law addressing claims based on membership to a particular social group has been amorphous. Membership in a clan can constitute membership in a “particular social group”. Women who belong to a particular tribe and who oppose female genital mutilation have been granted asylum. Homosexuals and Gypsies have also been recognized as “particular social groups”.

On the other hand, “young urban working class males of military age who had never served in the military or otherwise expressed support for the government in El Salvador” did not constitute a particular social group for asylum purposes. Neither did “business owners in Colombia who rejected demands by narco-traffickers to participate in legal activity”, or “young men in El Salvador resisting gang violence”, or “young Salvadorans who have been subjected to recruitment efforts by criminal gangs, but who have refused for personal, religious, or moral reasons”.

So what do “particular social groups” that have been granted asylum protection have in common? The Board of Immigration Appeals (BIA) has explained that “the shared characteristic might be an innate one such as sex, color, or kinship ties” which would make the fact of membership something that is beyond the power of an individual to change or that it so fundamental to his identity or conscience that it ought not to be required to change”.

Membership to a clan is a shared kinship; women of a particular tribe who oppose female genital mutilation is not only a shared kinship, but a characteristic so fundamental to their identity that it ought not to be changed. Homosexuals share sexual orientation and sexual identity which are immutable and so fundamental to their identity that a person should not be required to abandon them. Finally, Gypsies are an ethnic group sharing not only kinship but identity.

Women share the innate characteristic of their gender or sex. A characteristic so fundamental to their identity, it ought not to be required to change. Drawing on the Acosta definition of “particular social group”, women share an immutable characteristic. Now the mere fact that this characteristic is shared does not qualify a woman asylum protection. A woman must demonstrate she has been persecuted on account of this immutable characteristic or she as a well-founded fear of future persecution on account of being a woman. Notwithstanding the recognition of this innate and immutable characteristic places a woman in an arguably vulnerable “particular social group”.

A look at the laws affording protection of women exemplifies the recognition of the vulnerability of “women as a group”. That is not to equate women as victims, but rather women in a group likely to be persecuted on account of their “membership to this particular group”.

Domestic Violence laws within the United States protect women against violent perpetrators. The laws are gender neutral, yet their enforcement largely affords many women protection against their perpetrators.

A brief overview at the community property laws in California offers another perspective on laws developed to protect the interests of women. Community property laws in California seek to ensure the “equitable division” of assets and debts accumulated during the marriage upon dissolution of such marriage. The Family Code ensures that women who have taken the role of mothers and wives during a marriage while the husband seeks professional advancement will not have their contributions to such marriage – i.e. the community, be unaccounted for at the time of dissolution.

These two examples may seem patriarchal, yet they exemplify the reality that women as a group must seek the protection under the law for the however unjustified reality of their social status as a result of their gender.

That is not to say that women are the inferior gender, but women are usually targeted because of their gender. Women in most countries do not have rights afforded in the United States or the political or legal ability to change their circumstances.

Particular social groups afforded asylum protection share a similar inability to defend and change their realities in these countries because of their shared kinship or characteristic. Essentially, the recognition of women as a group warranting the protection under our asylum laws recognizes the palpable circumstances of this vulnerable group in societies unlike ours. Although difficult to analogize because our society affords rights to many groups that would otherwise not have a voice – children, homosexuals, and even animals, the voices of women as a group in countries were persecution is likely on account of their gender falls not only within the purvue of Matter of Acosta and the evolving “particular social group”, but it exemplifies what our Statute of Liberty holds dear in this Country and the meaning of asylum as a whole.

REad the opinion:

Tuesday, July 6, 2010

Federal Lawsuit to stop Arizona Law Enforcement

States cannot act on issues dealing with Federal Laws. This Country was founded on Federalism and States can only exercise their State powers on issues concerning State Laws and not Federal Laws.