Court Monitor

Decision on Birthright Citizenship

The father, Mr. Thomas, was an American citizen serving in our Armed Forces in Germany, whose wife was a citizen of Kenya. One day in 1986, they welcomed the joyous birth of their son Jermaine Amani Thomas on an American military base in Germany. Nearly three decades later, the question arose in a U.S. Court of Appeals as to whether this baby boy had acquired "birthright citizenship," meaning whether he became an American citizen automatically at birth. The answer came from a unanimous panel on the Fifth Circuit: no, he did not acquire birthright citizenship.Thomas v. Lynch, 796 F.3d 535 (5th Cir. 2015).

After the boy grew up and came to the United States, he committed felonies and was being deported by the federal government as a non-citizen who had been convicted of crimes here. His argument to avoid deportation was to assert that he had acquired birthright citizenship due to his birth on a military base, to a father who was an American citizen.

There are only two sources of citizenship: birth and naturalization. The Fourteenth Amendment 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." Uncertainty as to citizenship may exist when a child is born in a foreign country to one parent who is an American citizen, while the other parent is not. Congress has enacted laws, which have changed over time, to determine when a child acquires "statutory" birthright citizenship. In those cases, the child does not become a citizen by virtue of the Fourteenth Amendment, but based on a statute passed by Congress.

The Fifth Circuit ruled that baby Jermaine Amani Thomas had not acquired birthright citizenship. His father, though an American citizen, had not been a resident in the United States long enough to satisfy the statutory requirements. Mr. Thomas became a naturalized American citizen only two years before the birth of Jermaine. In an opinion written by liberal Carter-appointee Judge Carolyn King but joined by two of the most conservative judges in the entire country, Judges Jerry Smith and Jennifer Elrod, the court first held that a military base in Germany is not part of the United States, and thus the child was not born on American soil within the meaning of the Fourteenth Amendment.

The court then went one step further and said that only birth on property that is actually located "in the United States," i.e., within the 50 States of the Union, can qualify for birthright citizenship under the Fourteenth Amendment. There are numerous American territories around the world under the sovereignty of the United States, but children born there do not acquire birthright citizenship under the Fourteenth Amendment. A statute of Congress may confer statutory birthright citizenship on them, as has been done for Puerto Rico, but not for the American Samoa Islands. The court allowed the deportation of the young man to move forward, after finding that he had not acquired birthright citizenship. 8 U.S.C. § 1402.