At lunch today we were discussing the recent case of (IIRC) a Ugandan woman who gave birth in Canadian airspace and the child was deemed to be Canadian.
If someone is born in US airspace, are they American?
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does it matter if the aircraft is registered in the US?
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does it matter if the aircraft departed from a US or foreign airport?
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does it matter if the aircraft is headed to a US or foreign airport?
So lets say a Spanish plane flying from Spain to Mexico, is someone born over Florida a US citizen (assuming non-US parents)?
What is written on the birth certificate and who issues it?
Interesting question. Let me take a crack at it.
What you’re looking for is jus soli, the granting of citizenship to those born on the soil of the nation in question. Not many countries subscribe to jus soli, but the US is one of 'em that does. Title III of the Immigration and Nationality Act (INA) governs the granting of US citizenship. I can find nothing in the act about people born over US soil, and a brief search of cases doesn’t reveal anything, so we’ll have to synthesize a rule.
INA §301(a) states that “a person born in the United States, and subject to the jurisdiction thereof . . . shall be [a] citizen of the United States at birth.” So the question is whether someone flying over Key West is “subject to the jurisdiction” of the US. The case on point here is US v. Wong Kim Ark, 169 U.S. 649 (1898). The case held that birth in the territorial US, even to tourists and undocumented migrants, results in citizenship. However, the case laid out a couple of exceptions, including “children of foreign sovereigns or their ministers, or [those] born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory.” Aha, you say! Foreign public ships! But later cases have held that that language applies to foreign warships. Being born on a foreign commercial vessel in US territorial water will still get you citizenship. See C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure § 92.03(3)(e).
So being born on a commercial vessel in “U.S. territorial waters” will get you citizenship. We might end our analysis there, analogizing a commercial airliner with a commercial shipping vessel, and U.S. airspace with U.S. territorial water. But let’s just be sure that you’re “subject to jurisdiction” of a U.S. territory when flying over it. In the procedurally hilarious* case of Grace v. MacArthur, 170 F.Supp. 442 (E.D.Ark. 1959), the defendant was on a nonstop Braniff Airlines flight from Memphis to Dallas, and received service from plaintiff while over Arkansas. The Arkansas court found his time “in” Arkansas sufficient to grant the state jurisdiction over him.
As to how it would work practically, the baby would probably get a birth certificate from the destination country, and then later (probably years later) try to petition for American citizenship. No one is going to give him an American birth certificate on the spot.
IANAL, etc.
*Okay, maybe it’s only procedurally hilarious if you’re a lawyer or law student. Shut up.