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The "Entry Fiction" and the Citizenship Clause
Andrew Hyman

The Citizenship Clause of the Fourteenth Amendment says, "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."  In a recent blog post, I wrote that the Citizenship Clause perhaps withholds birthright citizenship in the case of parents who have immigrated illegally, based either upon the phrase "subject to the jurisdiction thereof" or alternatively based upon the phrase "born…in the United States."  The former rationale is well known, but the latter is not.  Of course, Congress is free to grant citizenship at birth to any children born inside or outside the United States whom Congress believes are justly deserving of U.S. citizenship, but I do not think the Citizenship Clause grants that citizenship automatically in the situation of parents who have immigrated illegally.

In a section titled "The Meaning of ‘[B]orn ... in the United States,’" Allison Hartry wrote in her 2012 law review article that, "Although the definition at first may appear obvious, confusion over the last century suggests that this issue, left unaddressed by the Supreme Court in Wong Kim Ark, is at least as contentious as the definition of 'jurisdiction.'"  I agree, and already quoted some of those twentieth-century cases.

Looking back all the way to 1866, the Citizenship Clause was added by the U.S. Senate after the House had already approved the rest of the Fourteenth Amendment.  The person who first proposed the language that would become the Citizenship Clause was Senator Benjamin Wade, and his proposal was to replace the words "citizens of the United States" in the Privileges or Immunities Clause with the words "persons born in the United States or naturalized by the laws thereof…."  Sen. Jacob Howard then proposed a Citizenship Clause as a separate sentence at the beginning of the amendment, and Sen. William Fessenden finalized Howard’s language by inserting two words that Wade had already suggested: "or naturalized."

Wade was an interesting character.  Because of his seniority, he would have become President of the United States in 1868 if President Andrew Johnson had been convicted by the Senate (Johnson escaped that fate by a single vote in the Senate and so Wade came as close to the presidency one could imagine).  Anyway, Wade apparently believed in 1866 that the language he proposed relating to citizenship would exclude newborn children of ambassadors, because of the legal fiction that diplomats are located "near" the United States instead of "in" the United States.  Wade explained that "[i]t would make no difference in the result" if further language were added to his proposal, which he regarded as "beyond all doubt and all cavil."  Wade’s comments illustrate that his phrase "born in the United States" was not as simple a concept as it might initially seem, and his comments support the idea that this phrase referred to being legally in the United States, and not just physically in the United States.

As of 1866, the so-called "entry fiction" had not often been applied outside the diplomatic context.  But, there is evidence that imported goods were sometimes subjected to such treatment, when they were examined for admissibility at ports of entry.  One example of this was in Britain, where a provisional examination of goods was performed after those goods were unloaded from ships, but those goods were not "deemed to be landed, or delivered out of the ship" unless and until they passed the provisional examination.  This British practice was known and understood in the United States during the mid-nineteenth century, and was later replicated in United States immigration law once the federal government took over immigration regulation from the states in the 1870s and 1880s.  

If people who are being examined for eligibility to enter the United States are not yet "in" the United States, it is difficult to see how someone who has not yet been examined for eligibility could be "in" the United States.  But suppose that some states in 1866 treated immigrants as being lawfully “within” the state during proceedings to determine if they could continue to be lawfully within the state; that would still be consistent with the notion that “in the United States” meant being legally as well as physically in the United States.

Immigrants who have not yet been officially granted admission have typically been considered under U.S. law to be at the limit of U.S. jurisdiction, and likewise people who have immigrated illegally can reasonably be understood as subject to U.S. jurisdiction to the same extent as any other temporary visitor to the U.S., and also understood as being within a U.S. state’s jurisdictional reach, but nevertheless understood as not being legally inside either the U.S. or any state.  And that is exactly how they have usually been understood.