boytypetanma has the right of it. If a department adopts a policy of asking no one, not only do they flout the plain text of the law, which requires officers to ask if they have reasonable suspicion that a person they have detained for some other crime is illegal, but it allows any citizen to sue the department for failure to comply with the law.
So, as I said, asking everyone is the safest approach. Not only does it defeat claims of racial profiling, it allows everyone to get a little taste of how it might feel to be accused of being illegal.
However, the wife of the Third Secretary at the Fredonian Embassy in Washington might chose to have her baby at one of the fine hospitals in DC, where she would certainly be in the US. Nevertheless, since she has diplomatic immunity, she is not “subject to the jurisdiction” of the US, and her baby will be born as a Fredonian citizen only, and not a US citizen.
Why? Are holders of green cards required by law to carry them at all times? Or only to present them when applying for a job? (Not hand- or blow-, just a job.)
And also hostile invaders. If the Great Northern Menace ever decides to cross the 49th and occupies Seattle, any children born to the occupiers will not be U.S. citizens because their parents were under the jurisdiction of occupying army and not the U.S. government.
This diplomat from the former Soviet state of Georgia caused an accident while driving drunk that killed someone. He was not subject to the jurisdiction of the United States, meaning that he could not be prosecuted for and convicted of that crime unless his home nation agreed to allow him to be subject to US jurisdiction (ie, by waiving diplomatic immunity). As such, per the 14th Amendment, any child he had on US soil would not be a US citizen.
This illegal immigrant caused an accident while driving drunk that killed someone. He, however, was fully subject to the jurisdiction of the United States, with his home country having no say whatsoever in his being prosecuted and convicted by the judicial system of the US. As such, per the 14th Amendment, any child he had on US soil would be a US citizen.
Were Indians on reservations subject to the jurisdiction of the states? Perhaps this language was to prevent automatic citizenship for the children of Indians who were treated specially in the Constitution. Diplomats have already been mentioned. I’d expect endowing children of diplomats with US citizenship would stir up some problems.
I also fail to see how the children of immigrants, legal or otherwise, are under the jurisdiction of the states.
The whole American Indian thing is clouded in murk. Some tribes signed treaties that recognized them as sovereign nations within the borders of the US, with the reservations being recognized as such. Others simply surrendered and signed whatever was thrust in front of them.
Can immigrants (legal or otherwise) be sued or prosecuted in U.S. courts? If so, then they, unlike diplomats and foreign invaders, are under U.S. jurisdiction.
One gray area that I wonder about is if a POW in a prison camp in the U.S. gave birth, would the child be a citizen?
I think Arizona’s issue is this. The 14th 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I would imagine that they are approaching it from the point of view that these folks do not live in Arizona because they entered the country and the state illegally. They are, therefore, not citizens of Arizona and as such, Arizona is not obligated to provide them or their children with any kind of documentation stating that they are citizens.
