The Foreign Service Journal, September 2013

THE FOREIGN SERVICE JOURNAL | SEPTEMBER 2013 39 and the idea that American customs and values should be a factor in determining who becomes a citizen, will practically be abolished. But why? And what role has the State Department played in the process of redefining 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 The 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. This 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-profile cases, some of those children who broke the law were deported as resident alien offenders back to their “home” country—a place they had never lived. The CCA fixed 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 parents. 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. The reason for this was to definition of what an American is as the basis for the legal definition 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 definition 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 Affairs 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). That 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 five 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 five 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 five-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 definition of what an American is as the basis for the legal definition of who an American is.