Rose Cuison Villazor

Rose Cuison Villazor is assistant professor of law at Southern Methodist University. She teaches property, immigration and citizenship law. Her scholarship focuses on the intersection of property and race, immigration and citizenship, and American empire. Professor Villazor organized and coordinates the SMU Colloquium on Law and Citizenship, a speaker series that facilitates scholarly discussions about the meaning of citizenship. Prior to joining the SMU law faculty, Professor Villazor completed a human rights fellowship at Columbia University Law School. As a Human Rights Fellow, she worked with Columbia University Law School's Human Rights Institute in examining the domestic application of various human rights treaties.

Abstract:
Examining Birthright Citizenship in the U.S. Territories

Under the Citizenship Clause of the Fourteenth Amendment, "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States[.]" What does being born "in the United States" mean in the context of the Citizenship Clause of the Fourteenth Amendment, particularly for those individuals who were born in a U.S. territory? Two cases from the U.S. Court of Appeals for the Ninth Circuit provide a constructive point from which to understand the legal construction of citizenship by birth in a U.S. territory. In Rabang v. I.N.S., 35 F.3d 1449 (9th Cir. 1994), the Ninth Circuit held that those individuals born in the Philippines at the time when it was a U.S. territory did not acquire U.S. citizenship. Relying on the Insular Cases doctrine, the court held that the "Citizenship Clause has an express territorial limitation which prevents its extension to every place over which the government exercises sovereignty." Id. at 1453. By contrast, in Sabangan v. Powell, 375 F.3d 818 (9th Cir. 2004), the Ninth Circuit held that those persons who were born in the Northern Mariana Islands acquired birthright citizenship, despite the fact that during the period in which they were born, the Marianas had not yet attained U.S. territorial status. Critically, the Ninth Circuit did not rely on the Insular Cases to reach its conclusion and stated that the individuals acquired citizenship by the sheer force of the Fourteenth Amendment.

This paper compares and contrasts these two cases to explore the constitutional definition of birthright citizenship in places over which the U.S. has (or, in the case of the Philippines, had) sovereignty. As a descriptive matter, the juxtaposition of these two cases reveals the complexity of the American empire and the meaning of "United States" for purposes of the Citizenship Clause. From a normative standpoint, the two cases allow us to critique the prevailing legal understanding that the Citizenship Clause has territorial limitations. And, ultimately, the paper contends that the two cases facilitate promising avenues for recognizing birthright citizenship as a fundamental constitutional right in the U.S. territories.