Interim Decision #2748 

MATTER OF CANTU 

In Deportation Proceedings 

• A-20554647 

Decided by Board October 19, 1978 

Decided by Attorney General December 18, 1978 

(1) There is no basis in the legislative history or judicial construction of the Citizenship 

Clause of the Fourteenth Amendment to the United States Constitution for the view 

that territory of which the United States is the sovereign can be deemed removed from 

its jurisdiction for purpose of the Citizenship Clause. 

(2) It is the presence within and the personal relationship to the United States of a 

newborn child's parents that determines whether he was born "subject to the jurisdiction [of the United States]" and without more became a citizen. 

(3) Since the birth of the respondent occurred in territory of which the United States 

was then the sovereign, since the birth occurred prim to the territory being transferred to Mexico, and since the respondent's parents did not fall within any of the 

exceptions to the rule of jus soli noted in United States v. Wong Kim Ark, 169 U.S. 649 

(1898), the respondent became a citizen of this country at the moment of his birth. 

CHAR= 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained 

longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE 

Laurier B. McDonald, Esquire George Indelicate 

600 South Closner Avenue Appellate Trial Attorney 

P.O. Drawer 54 

Edinburg, Texas 78539 

BEFORE THE BOARD 

(October 19, 1978) 

Br: Milhollan, Chairman; Appleman, and Farb, Board Members. Dissenting Opinion, 

Maniatis, and Maguire, Board Members 

This case is before tie upon certification by an immigration judge, 

who found the respondent deportable under the above charge. 

The respondent is a 42-year-old male who was admitted to the 

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Interim Decision #2748 

United States at Hidalgo, Texas, on May 12, 1972, as a temporary 

visitor alien for 3 days. It is conceded that he has remained longer than 

authorized. If alienage has been established, then he is clearly deportable as charged. 

The pertinent facts are set forth in part in an oral stipulation made 

to the immigration judge.' The respondent was born in an area known 

as the "Horcon Tract," at the Texas-Mexico boundary, on August 25, 

1935, to parents who were both natives and citizens of Mexico.z That 

portion of the "Horcon Tract" in which he was born is now part of the 

township of Rio Rico, Tamaulipas, Mexico. Geographically the "Horcon Tract" is in the lower half of a reverse S curve of the Rio Grande 

River, the international boundary between the United States and 

Mexico. For purposes of this case the upper half of the S curve was 

always Mexican territory and the lower half originally was part of the 

United States (see Map, Ex. 2 Appendix I). In 1906, the Rio Grande 

Land and Irrigation Company, a private concern, unlawfully changed 

the course of the river by making a cut-off to prevent the river from 

changing its course naturally so as to adversely affect the company's 

irrigation activities. The diversion had the effect of cutting off the 

lower half - of the S curve, thus placing the "Horcon Tract" on the 

Mexican side of the river. (See Map Ex. 2 Appendix I). Thereafter, in 

the language of the stipulation, the United States "totally refrained 

from exercising jurisdiction over the aforesaid Sorcon Tract'." 

The International (Water) Boundary Commission found the company's action to be in violation of the Convention of 1884 between the 

United States and Mexico. It further found that the artificial diversion 

of the river did not change the preexisting boundary. In 1911, the 

United States, in combination with private Mexican citizens, insti -. 

tuted a suit in equity against the company, resulting in payment of 

penalty to the United States for its illegal action, and damages to the 

private parties for claims arising from the diversion. 

It has been stipulated that the "Horcon Tract," notwithstanding the 

diversion, continued to be United States territory until the signing of a 

treaty between the United States and Mexico on November 23, 1970, 

designed to resolve pending boundary differences. Under the treaty, 

which became effective in 1972, the United States ceded the "Horcon 

Tract" to Mexico. 

It has been further stipulated that the town of Rio Rico was founded 

' A more definitive stipulation would have been helpful. However, the record is 

supplemented by exhibits which give a clearer picture. 

He thus acquired Mexican citizenship at birth under Article 40 of the Political 

constitution of Mexico of 1917, Matter of Quintanilla-Montes,13 MN Dec. 508 (MA 1970). 

It is conceded by the Government that if he was a United States citizen at birth, he never 

expatriated. See Service Brief on Appeal, Page 4. He would thus be a dual national. 

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Interim Decision #2748 

in 1929 in Tamaulipas, Mexico, wholly within the upper half of the S 

curve, in Mexican territory_ Thereafter, as a result of floods that 

eroded the town, it gradually moved southward until by the 1940's it 

had crossed the abandoned bend of the Rio Grande and encroached 

into the "Horcon Tract" on the United States side of the river. Eventually about two-thirds of the town was in United States territory, and 

one-third still in Mexican territory. 

From the time that the town of Rio Rico was established in 1929, it 

has had Mexican policemen on duty, the public schools are maintained 

by the Republic of Mexico or some political subdivision of it, such roads 

as there are, are maintained by Mexican authorities, and "the residents of the area abide by Mexican conscription laws which were in 

effect in their area" (Tr. p. 13). Births and deaths in the township were 

recorded, as in the case of the respondent, at the office of the Civil 

Registry at Matamoros, Mexico. The respondent himself complied with 

the conscription laws of Mexico. However, at the time the respondent 

was born in the "Horcon Tract," the town of Rio Rico had not yet 

expanded into that area where he was born, although the township 

later included the place of his birth' 

Lastly, it was stipulated at the hearing that the International Bridge 

between Thayer, Texas, across the Rio Grande, to the original location 

of Rio Rico, was carried away by a flood in 1941 and since then there 

has been no practical means of direct access between that part of Texas 

north of the river and the "Horton Tract."' 

The stipulated facts are corroborated and supplemented by an appendix to Exhibit 3, respondent's Brief below. The appendix is a 

scholarly treatise which appeared in the Rocky Mountain Social Science Journal, entitled El Horcon: A United States-Mexican Boundary 

Anomaly, by James E. Hill, Jr.5From it we learn that the court action 

instituted in 1911, occurred after the matter was reported to the 

Mexican Secretary of Foreign Affairs, and that the suit was by the 

United States Department of Justice, at the instigation of the United 

States Department of State. The bridge at Thayer, Texas, was built in 

1929 and the town of Rio Rico was established at its south end. There 

was heavy traffic across the bridge during prohibition in the United 

See Tr. p. 23. This is according to a statement of counsel, made at the hearing during 

the oral stipulation, which was not opposed by the Immigration and Naturalization 

Service trial attorney, and which appears to be part of the stipulated facts. 

' It will be noted that even prior to that, in the period between 1906 and 1941, to reach 

the Horcon Tract from the Unitid States, it was necessary to proceed across the Mexican 

territory in the northern loop and to reeruee the abandoned bed of the Rio Grande River 

at its middle bend. The international line would actually be crossed twice. 

The exact date of publication is not set forth, but judging from the footnotes it was 

subsequent to 1965. 

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Interim Decision #2748 

States, and a considerable influx of tourists was attracted by dog 

racing. As of the date of the article there was one official, a police 

inspector, and the police station, school, church, and plaza, all were 

located on United States soil, although the entire town was deemed 

within Tamaulipas, Mexico. Area residents had no knowledge of the 

presence of an international boundary line and only one monument 

marking the abandoned channel of the Rio Grande was still standing. 

The boundary was poorly delineated and even passed through some of 

the houses in Rio Rico. Officials in Hidalgo County, Texas, were not 

aware that the Horcon Tract was a part of the county. The county tax 

office taxed nothing south of the river, county law enforcement 

agencies had no jurisdiction in the area, and the county representative 

of the United States Department of Agriculture had no control over 

agricultural policies in the "Horcon Tract." A Mexican public road 

crossed the tract, one-quarter mile of it in United States territory. 

Appendix 3 to Exhibit 2 is the Senate Report on the Treaty signed on 

November 23, 1970.' The Letter of Submittal from the Department of 

State to the President notes that under the convention of 1884 the 

"Horcon Tract" belonged to the United States, that a wilful and illegal 

relocation of the river took place in 1906, and that "In view of the 

exceptional origin and situation of the detached tract, the United. 

States, at Federal, State, and local levels, has refrained from exercising jurisdiction over it." Article I F(2) of the treaty states that the 

"Horcon Tract" now under the sovereignty of the United States shall 

pass to and become part of the territory of Mexico." Article VI B states 

that the transfer "shall not affect in any way (1) the legal status with 

respect to citizenship laws, of those persons who are present or former 

residents of the portions of the territory transferred." 

It is clear that the respondent's citizenship status must be determined in light of the law, and possibly, the facts, existing at the time of 

his birth in 1935 in the "Horcon Tract." 

Respondent's claim to citizenship is founded on section 1 of the 

Fourteenth Amendment to the Constitution, "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," and section 1992 of the Revised Statutes, Act of April 9, 1866, 8 

U.S.C. 1, section 1, 14 Stat. 27, "All persons born in the United States 

and not subject to any foreign power, excluding Indians not taxed, are 

declared to be citizens of the United States." 

' It was ratified by the Senate on November 29, 1971, and entered in force on April 18, 

1972. 

Section 1992 was repealed by section 504 of the Act of October 14, 1940 (54 Stat. 1173), 

which deleted the language "and not subject to any foreign power," and substituted "and 

subject to the jurisdiction thereof." The latter language was carried over into the 

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Interim Decision #2748 

The Government concedes that the respondent was "born in the 

United States within the meaning of the Fourteenth Amendment." 

However, it challenges his assertion that he was also "subject to the 

jurisdiction thereof," the second prerequisite for United States citizenship at birth. 

Before examining the meaning of these words it might be well to 

establish the burden of proof. This is a deportation proceeding. The 

overall burden is on the Government.to prove its case by clear, convincing, and unequivocal evidence, Woodby v INS, 385 U.S. 276 (1966). 

Alienage is jurisdictional. The respondent has denied alienage and has 

clearly established that he was born in United States territory. The 

burden of proving a defense would normally be on the one asserting the 

defense. Here, however, the respondent has not merely denied 

alienage, and asserted citizenship, he has proved he was born in this 

country. Since, with rare exceptions, persons born in United States 

territory are United States citizens at birth, it is clear that the burden 

is on the Government to show that he is in fact an alien. Nishikawa v. 

Dulles, 356 U.S. 129, 133, 2 L.Ed. 2d 659, 663 (1958). 

As a corollary, the respondent does not have to establish that he is, 

beyond any challenge, a United States citizen. If the Government has 

not satisfactorily established alienage, that would end this deportation 

case. So far as this Board is concerned the task before us is solely to 

determine the outcome of this deportation proceeding. Either the 

Government has established, by the requisite burden of proof, that the 

respondent is an alien, or it has.not; if it has not, it is not incumbent 

upon this Board to go the additional step of determining whether he is 

also a citizen. That determination can be left to some future date and 

some other process. 

Section 1 of the Fourteenth Amendment, and more particularly the 

clause "subject to the jurisdiction thereof" has acquired some judicial 

gloss. In the Brief in Support of Respondent's Motion to Terminate the 

Proceedings, our attention has been directed to United States v. Wong 

Kim Ark, 169 U.S. 649 (1898) That case held that one born in San 

Francisco, of parents who were of Chinese descent and subject to the 

emperor of China although domiciled in the United States was a 

citizen of the United States and not excludable despite the fact that his 

employment would otherwise have brought him within the terms of 

the then existing Chinese exclusion laws. The Schooner Exchange v. 

Immigration and Nationality Act of 1952. (8 U.S.C. 1401). The language "and not subject 

to any foreign power," appearing in sectiot 1992 must be deemed to have the same 

meaning as "subject to the jurisdiction thereof" as it appears in the Fourteenth Amend 

ment and in the later statutes. No judicial interpretation has been cited giving a 

different meaning, nor would it appear that any statutory act could diminish, lawfully, 

the constitutional definition. 

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Interim Decision 112748 

M'Faddon, et al., 7 Cranch 116, (1812), a ease involving an attempted 

exercise of United States jurisdiction over a public vessel of a friendly 

sovereign power in a United States harbor. There Chief Justice Marshall enunciated the rule that territorial jurisdiction is exclusive in the 

sovereign. However, where another sovereign enters with consent and 

license, the dignity of the foreign sovereign and the object for which 

the license is granted may equally require that the one obtaining the 

license shall have full security, and an exemption may exist. 

In United States v. Rice, 4 Wheat. 246, 4 L.Ed. 562 (1819) the exemption was extended to United States territory occupied by hostile enemy 

forces. The children of occupying enemy aliens have been held not born 

"subject to the jurisdiction" of the United States during such occupation, since at the time of birth they did not derive protection from, and 

consequently did not owe obedience or allegiance to the United States. 

Inglis v. Sailor's Snug Harbor, 28 U.S. (3 Pet.), 99, 145-188 (1830). 

Similarly those born within the Indian. tribes in the United States, 

owing allegiance to their tribes rather than to the United States 

Government according to practices dating from the founding of this 

country, under which they were deemed citizens of the United States 

only under explicit provisions of a treaty or statute to that effect, were 

not born "subject to the jurisdiction" of this country within the meaning of the first section of the Fourteenth Amendment—any more than 

the children born within the United States of ambassadors or other 

public ministers of foreign nations, Elk v. Wilkins,112 U.S. 94, 28 L.Ed. 

643 (1884). Elk v. Wilkins recognizes the possibility that other exemptions might be implied from future facts. 

Unfortunately, none of the cases cited deal with the issue raised in 

this case. That the Fourteenth Amendment is a living organism which 

can accommodate itself to future courses of human behavior and 

embrace additional categories of exemption, as argued by the Government, is not unreasonable. Clearly, the United States can, under appropriate circumstances and by suitable means, expressly relinquish the 

exercise of sovereignty over a given area. Lastly, well established 

custom and usage, as in Inglis v. Sailor's Snug Harbor, and Elk v. 

Wilkins, supra, can also dictate recognition of an exemption. 

However, the question of an implied relinquishment is a far different matter. Our attention has been directed to no law that permits a 

foreign Government to exercise exclusive jurisdiction over United 

States territory—and certainly to none applicable to the "Horcon 

Tract" prior to 1972. The accepted constitutional method to convey 

territory and with it to surrender, or acquire, jurisdiction, is by treaty 

ratified by the Senate, as occurred here. Can either the Federal executive, or the inhibitants of a part of the United States, unilaterally 

divest themselves of the duties and obligations stemming from United 

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Interim Decision #2748 

States sovereignty over an entire arear Surely this nation fought a 

terrible and bloody Civil War to prove the contrary. 

The words "subject to the jurisdiction thereof," like the language 

"completely subject" and "owing allegiance" to the United States used 

in Elk v. Wilkins, supra, embody concepts which may exist independently of physical action. For example, it is conceivable that the United 

States Government may never have exercised jurisdiction over some 

remote area of the United States in Alaska, or in the Great . Smoky 

Mountains, perhaps for lack of knowledge of its existence, or perhaps 

just because of remoteness and difficulty of access. It could hardly be 

argued on that basis alone, that that area was not "subject to the 

jurisdiction" of this Government. A more reasonable interpretation of 

the phrase "subject to the jurisdiction" is that it connotes a duty or 

obligation on the part of both Government and those domiciled in 

United States territory. On the one hand the Government owes the 

duty of protection, or the grant of benefits and rights available to other 

citizens, and on the other the citizen owes the duties which every 

citizen owes to this Government if and when he is called upon to 

perform them. That the debt may not have been called in, does not 

mean it does not exist. In essence this case poses the question whether 

a non-exorcise of rights and duties on the part of either the Government or those domiciled in United States territory, if coupled with the 

performance of otherwise illegal acts by and for another sovereign, is 

enough in itself to bring about a change in citizenship. 

Even if, arguendo, the answer is in the affirmative, still another 

question must be answered. At what point in time would "non-action" 

lead to a change in citizenship status? From 1884 on, the Horcon Tract 

was clearly a part of the United States. Whatever lack of attention was 

paid to this small and remote area prior to 1906, there is little question 

that those born in it were citizens of the United States before that 

year. Why then is there an issue as to their citizenship thereafter? It 

arises because there was a gradual usurpation, or acceptance (depending on the point of view), of local Mexican jurisdiction as a result of 

various accidents of local geography. This continued in various degrees 

over some 60 odd years.. 

However, the Mexican town of Rio Rico did not even come into 

existence until 1929. It was created on Mexican land, at the Mexican 

end of the then existing international bridge. It did not expand over 

the abandoned bend of the Rio Grande River into the United States 

"Horcon Tract" until land erosion forced its southward migration. But 

the respondent was born in the "Horcon Tract" in 1325. As of some 

° One must distinguish here an individual's voluntary divestiture of citizenship after 

birth authorized by statute, see Afroyim v. Rusk, 387 U.S. 253 (1967). 

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Interim Decision #2748 

later date, the part of the present town where the respondent was born 

had a Mexican police official, church, birth records, Mexican Army 

conscription, and even one-quarter of a mile of Mexican road—but 

there is nothing to indicate when all this came about. 

As of the date that the respondent was born,. the town did not yet 

include the place of his birth. It is most unlikely that all of these 

"indicia" of Mexican sovereignty would have shown themselves in the 

brief period between 1929, when the town was founded, in Mexico, and 

1935, when the respondent was born. There is no showing that the 

United States Government even knew of these encroachments on its 

territory, or, if it did know, when it learned about them. It has not been 

shown that, having learned about them at a time prior to the respondent's birth, it acquiesced in them to the point of renouncing the right to 

assert its sovereignty. 

Thus, apart from the very formidable legal obstacle of whether a 

non-acquisition of citizenship can be based on a circumstantial "implication" of renunciation of sovereignty, there is a lack of evidence 

establishing by the requisite burden of proof that there was any such 

"implied" renunciation or consent by the United States Government. 

In summary, with respect to the crucial period in 1935 when this 

respondent was born, there had been neither a formal assumption of 

sovereignty by Mexico nor a formal renunciation of sovereignty by the 

United States. The Government case depends on an unauthorized 

assumption of authority by Mexico, allegedly impliedly recognized and 

acquiesced in by the United States Government, and constituting the 

equivalent of consent to exemption from sovereignty.' We have difficulty with this in the face of the clear assertion in the treaty that 

sovereignty was still in the United States. Nor does the language in the 

Department of State's Letter of Submittal of the treaty to the President, "in view of the exceptional origin and situation of the detached 

tract, the United States at Federal, State, and local levels, has 

refrained from exercising jurisdiction over it," dictate a contrary 

finding. The intimation is that jurisdiction was not exercised because 

of fear of causing an international incident or disturbing international 

harmony. One reading of this is that the United States, as late as 1970, 

felt that it could have exercised its rights of jurisdiction at any time 

had it chosen to, but that it was content to leave matters in status quo. 

To put the extreme—that this country would not have been disposed to 

go to war with Mexico because of encroachments within the "Horton 

Traet" —dnes not necessarily warrant the conclusion that the United 

' Somewhat paradoxically the Government is urging the loss of its sovereignty. One 

can readily envisage the United States taking a diametrically opposite position on a 

different set of facts. 

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Interim Decision #2748 

States either deemed the encroachments legal, or had surrendered its 

rights of sovereignty. The question must be posed, if, as of 1935, the 

United States Government had demanded that those born and 

domiciled in the "Horcon Tract" pay taxes to this country, or otherwise 

perform the duties of citizenship, they could have legally and rightfully refused. By the same token, it has not been shown that if such a 

person had been conscripted into Mexico's army and refused to serve 

on the ground that he was a United States citizen, that he might not 

have been able to have this Government intervene in his behalf.'° 

It is not without significance in the overall consideration of this case 

that the renunciation of sovereignty, when it did occur, was part of a 

treaty between the United States and Mexico to resolve boundary 

differences and disputes, and further, that that treaty required the 

advice and consent, and, ultimately, the ratification of the Senate. All 

this was a futile exercise if our country had clearly relinquished, as far 

back as 1935, its rights of sovereignty. 

Lastly, we do not see any failure to act by the United States Government officials creating an estoppel on the facts of this case, as urged by 

the respondent, nor do we view the respondent as estopped by reason of 

his inaction in asserting a right to citizenship. As to the former, the 

United States did not affirmatively act to mislead the respondent into a 

misconception of his position —Hibi v. INS, 414 U.S. 5 (1973); as to the 

latter, it would appear that there is at least a possibility that until 

recent date he had no knowledge of what rights he might have had as a 

citizen. Even assuming an outward failure to exercise jurisdiction, a 

fact which was stipulated, this does not mean the area was not "subject 

to the jurisdiction" of the United States for the reasons stated. 

It is concluded that the Service has failed to establish alienage. 

ORDER: It is ordered that the proceeding be terminated. 

DISSENTING OPINION: Louis P. Maniatis, Board Member 

I must respectfully dissent as I find that the respondent's deportability has been established by clear, convincing, and unequivocal 

evidence. 

The sole issue before us is whether this respondent, by virtue of his 

birth in the Horcon Tract' on August 25, 1935, falls within the cate- 

" That this respondent did serve is not significant. His service occurred after the date 

of his birth in 1935 and was not expatriative in effect, as conceded. In any event there is 

serious question whether he was not obligated to serve as a Mexican citizen at birth. See 

Note 2. 

The circumstances underlying the creation of the Horcon Tract in 1906 are set forth 

by the majority and need not be restated here. The history of this tract of land 

subsequent to 1906, however, will be further developed infra. 

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Interim Decision #2748 

gory of persons declared to be citizens in section 1 of the Fourteenth 

Amendment to the Constitution of the United States. That section 

reads in relevant part: 

"Section 1. All persons born . in the United States, and subject to the zfuris' diction 

thefeof, are citizens of the United States and of the state wherein they reside." (Under 

scoring supplied.) 

If the respondent derived citizenship at birth under this section, then 

the deportation proceedings must clearly be terminated. If he did not, 

however, then it is equally clear (and the respondent so concedes) that 

he is deportable as charged. 

The immigration judge found that the grant of citizenship in this 

section of the Fourteenth Amendment attaches only to those persons 

who are both born within United States territory and born subject to 

its jurisdiction. He concluded that although this respondent was born 

within United States territory, he did not derive citizenship thereby 

because he was not subject to the jurisdiction of this country at the 

time of his birth. He, therefore, found the respondent deportable as 

charged. I must concur with the immigration judge's conclusion. 

The issue of the respondent's citizenship is most reasonably resolved 

by addressing three underlying questions. The first relates to the 

words "and subject to the jurisdiction thereof" in section 1 of the 

Fourteenth Amendment. Do these words of limitation refer only to the 

three categories of persons found not to acquire citizenship at common 

law even though born within the King's realm, as argued by the 

respondent, or are they sufficiently expansive to encompass other 

categories of persons not subject to the jurisdiction of this country at 

birth either because of the sovereign's choice or otherwise? Secondly, 

assuming the latter construction to be correct, are there circumstances 

under which the United States has the sovereign authority to remove 

from within its jurisdiction, expressly or impliedly, a particular tract 

of its own territory so as to defeat subsequent claims of citizenship by 

those born therein? Finally, assuming that the United States could do 

so, has it been established as a factual matter that prior to the 

respondent's birth, this country elected to waive its jurisdiction over 

the Horcon Tract. 

I. Construction of the words ".. . and subject to the jurisdiction 

thereof ..." in Section 1 of the Fourteenth Amendment 

The respondent admits that the specification of citizenship in section 

1 of the Fourteenth Amendment is founded on the dual requirement of 

This Constitutional declaration of citizenship is incorporated in the Immigration and 

Nationality Act of 1952 at section 301(a)(1), 8 U.S.C. 1401(a)(1). 

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Interim Decision #2748 

birth within United States territory and birth "subject to the jurisdiction thereof." He maintains, however, that these cited words of limitation were placed in the Fourteenth Amendment only so as to incorporate an exclusion of three fixed categories of persons who were 

denied jus soli citizenship at common law even though born within the 

territory of the sovereign (i.e., children born of diplomatic representatives of a foreign state; children born of alien enemies in hostile 

occupation; and, children born of aliens on foreign warships in the 

sovereign's domain). The respondent submits that the words "and 

subject to the jurisdiction thereof" were used simply as an abbreviated 

method of excluding from jus soli citizenship these three, and only 

these three, categories of persons. I .find this construction overly 

restrictive, however, in view of the common law origins of these words 

and their subsequent interpretation by judicial authorities. 

Justice Story ably summarized the common law principles underlying the acquisition of jus soli citizenship in his separate opinion in 

Inglis v. Sailor's Snug Harbor, 28 U.S. (3 Pet.) 99, 145-188 (1830), 

wherein he stated; 

The rule commonly laid down in the books is that every person who is born within the 

ligeanee of a sovereign is a subject; and, e converso, that every person born without 

such allegiance is an alien. This, however, is little more than a mere definition of 

terms, and affords no light to guide us in the inquiry what constitutes allegiance, and 

who shall be said to be born within, the allegiance of a particular sovereign; or, in other 

words, what are the facts and circumstances from which the law deduces the conclusion of citizenship or alienage. Now, allegiance is nothing more than the tie or duty of 

obedience of a subject to the sovereign under whose protection he is; and allegiance by 

birth is that which arises from being born within the dominions and under the 

protection of a particular sovereign. Two things usually concur to create citizenship; 

first, birth locally within the dominions of the sovereign; and second, birth within the 

protection and obedience, or in other words, within the ligeance of the sovereign. That 

is, the party must be born within a place where the sovereign is at the time in full 

possession and exercise of his power, and the party must also at his birth derive 

protection from, and, consequently, owe obedience or allegiance to, the sovereign, as 

such, de facto. 

Inglis at 155. Meeting the dual requirements of birth within the sovereign's dominions and birth subject to his jurisdiction was necessary 

for 

though at common-law nationality or allegiance in substance depended upon the place 

of a person's birth, it in theory at least depended, not upon the locality of a man's 

birth, but upon his being born within the jurisdiction and allegiance of the King of 

England ... 

It was generally true of course that one born within the sovereign's 

territory was concomitantly born subj ect to his jurisdiction. Certain 

exceptions (those cited by respondent) did arise. Those exceptions, 

'Dicey, Digest of the Law of England with Reference to the Conflict of Laws (1896), as 

cited in United States v. Wong Kim Ark, 169 U.S. 649, 658 (1897). 

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Interim Decision #2748 

however, served to "illustrate and confirm"' the general doctrine that 

birth within the King's realm did not by itself guarantee the acquisition of British citizenship. 

It was this general common-law doctrine that was incorporated into 

the Constitution by the framers of the Fourteenth Amendment. The 

fact that the Fourteenth Amendment incorporated the doctrine itself 

(rather than just the three common-law exceptions thereto) is readily 

apparent from an early Supreme Court interpretation of the language 

of that Amendment. In Elk v. Wilkins, 112 U.S. 94 (1884) the Court, 

applying the common-law doctrine that birth within the realm alone 

did not insure citizenship, found an additional category of persons 

who, though born within United States territory, did not acquire jus 

soli citizenship because they were not born "completely subject to (the) 

political jurisdiction (of the United States) and owing them direct and 

immediate allegiance." 5This decision clearly could not have been 

reached if only those three categories of persons denied jus soli citizenship at common law could be denied such citizenship under the 

Fourteenth Amendment. The Elk decision precludes a finding that the 

language of that Amendment is as restrictive as urged by respondent 

and directs instead an interpretation which incorporates into the 

Constitution the common-law doctrines underlying acquisition of jus 

soli citizenship. 

The respondent cites in support of his position a Supreme Court 

decision, occurring 14 years after Elk, namely, United States v. Wong 

Kim Ark, supra. In Wong Kim Ark,169 U.S. at 682, Justice Gray wrote 

for the majority: 

The real object of the 14th Amendment of the Constitution, in qualifying the words, 

'all persons born in the United States,' by the addition, 'and subject to the jurisdiction 

thereof,' would appear to have been to exclude, by the fewest and fittest words (besides 

children of members of the Indian tribes, standing in a peculiar relation to the 

national government, unknown to the common law), the two classes of cases —children 

born of alien enemies in hostile occupation, and children of diplomatic representatives 

of a foreign state—both of which, as has already been shown by the law of England, 

and by our own law, from the time of the first settlement of the English colonies in 

America, had been recognized exceptions to the fundamental rule of citizenship by 

birth within the country. 

This language, however, must be read in the context of the issue then 

before the Court wherein it was asserted that the limiting words of the 

Fourteenth Amendment should be interpreted to exclude from United 

States citizenship categories of persons who were born in a place where 

' Inglis v. Sailor's Snug Harbor, supra at 155. 

In Elk, the court rejected the citizenship claim of an American Indian who was born 

within the United States and subsequent to birth "surrendered" himself to its jurisdiction. Later events negated the effect of this decision but not its rationale. 

201 
Interim Decision #2748 

the United States was in full exercise of its jurisdiction and who would 

not have been denied citizenship under the general common-law doctrines discussed above.' The Court rejected this position. Within this 

context, Justice Story's opinion is appropriately read as affirming that 

the common law doctrines regarding the acquisition of jus soli citizenship were incorporated into the Constitution by the Fourteenth 

Amendment but that no expansion of those doctrines was intended by 

the framers of that Amendment. The Court's reference in Wong Kim 

Ark to Elk v. Wilkins, supra, supports a conclusion that the quoted 

words cannot be read as a statement that only those exceptions to the 

general doctrines arising at common law were incorporated into the 

Constitution. Instead, it was acknowledged that other circumstances 

"unknown to the common law" might arise where persons would be 

born within the territory of the United States without acquiring its 

citizenship. 

I conclude, therefore, that the words "and subject to the jurisdiction 

thereof" in the Fourteenth Amendment cannot be interpreted as 

restrictively as the respondent urges but must instead be read as 

incorporating into the Constitution the general doctrines under which 

one could acquire jus soli citizenship at common law. Thus, the question must be addressed of whether the United States has the sovereign 

power to remove an area of its territory from within its jurisdiction so 

as to defeat a claim of jus soli citizenship by one subsequently born 

'within that territory. 

II. Sovereign's Authority to Withhold the Exercise of Jurisdiction over an Area of its Territory 

The right of the United States to withhold its jurisdiction over a 

tract of its territory was initially raised in the respondent's brief 

before the immigration judge wherein he asserted that the United 

States engaged in "affirmative misconduct" when it refused to exercise 

jurisdiction over the Horcon Tract. "Indeed," it was submitted, "the 

failure of the Federal Government to exercise its functions of political 

jurisdiction within the 'forma Tract has been a serious breach of duty 

on the part of the government, and (the) Respondent ... certainly 

should not be penalized ... because of the government's refusal to 

exercise jurisdiction within the Horcon Tract since the year 1906." 

Such argument perforce assumes that the United States has no legitimate authority to restrict its jurisdiction over an area of its territory. I 

As Chief Justice Marshall noted in Cams v. Virginia, 19 U.S. (6 Wheat-) 264, 399 

(1821): 

It is a maxim not to be disregarded, that general expressions, in every opinion, are to 

be taken in connection with the case in which those expressions are used. 

202 
Interim Decision #2748 

cannot concur in this underlying assumption. 

The principles which control here were enunciated by Chief Justice 

Marshall in 1812 in what has been called "the great case of The 

Exch-ange."' He stated there in that: 

The jurisdiction of the nation within its own territory is necessarily exclusive and 

absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon 

it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the 

same extent in that power which could impose such restriction. 

All exceptions, therefore, to the full and complete power of a nation within its own 

territories, must be traced up to the consent of the nation itself. They can flow from no 

other legitimate source. 

This consent may be either express or implied. In the latter case, it is less 

determinate, exposed more to the uncertainties of construction; but, if understood, not 

less obligatory. 

The world being composed of distinct sovereignties, possessing equal rights and 

equal independence, whose mutual benefit is promoted by intercourse with each other, 

and by an interchange of those good offices which humanity dictates and its wants 

require, all soveteigus have consented to a relaxation in practice, in caeca under 

certain peculiar circumstances, of that absolute and complete jurisdiction within their 

respective territories which sovereignty confers. 

In applying these general principles to the facts before it, the Court in 

The Exchange concluded that the United States had impliedly agreed 

that foreign armed vessels which entered its ports in peace would be 

"exempt from the jurisdiction of this country." The United States 

retained the ultimate sovereign power to destroy this exemption, but 

while it existed no jurisdiction over such vessels could be said to 

remain with the sovereign. From this exemption in turn arose the fact 

that children born abroad such vessels, even while within United 

States territory, are not considered to be born in a place subject to the 

jurisdiction of' this nation and, hence, acquire no jus soli citizenship. 

These underlying principles' apply with equal force where the 

United States desires for reasons of international relations' to 

withhold the exercise of its jurisdiction over a small area of its territory which through unusual circumstances no longer falls within its 

natural international border. Thus, contrary to the majority, I find 

' The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch.) 116, 136 (1812). 

These principles relate solely to the authority of a sovereign nation to withhold the 

exercise of complete and absolute jurisdiction within its territories. They are directly 

contra to the premise (and it is certainly not submitted by the immigration judge or 

herein) that any corresponding right exists with inhibitants of a territory to "unilaterally divest themselves of the duties and obligations (to the sovereign)." Majority at page S. 

' The respondent, through counsel, submits that the refusal to exercise jurisdiction by 

the United States resulted from the "fear of causing an international riff" and the "fear 

of disturbing the international harmony with Mexico." Brief before the immigration 

judge at 7. 

203 
Interim Decision #2748 

that the United States does not have the legitimate sovereign authority to restrict its jurisdiction in such a manner. The issue is not merely 

whether jurisdiction has in fact been exercised over a given place (e.g., 

a "remote area of the United States in Alaska . . . or in the Great 

Smoky Mountains.") as circumstances could arise where the failure 

to act was unintentional and no diminution of jurisdictional control 

was contemplated. Instead, the determinative question must be 

whether the United States (either expressly or impliedly) during the 

relevant time period intentionally elected to divest itself of its jurisdiction over a designated area. If such an election was made, then I would 

conclude that persons born therein (just as those born on foreign 

warships or born to foreign diplomats) could not be said to be born 

"subject to the jurisdiction (of the United States)" within the meaning 

of those words in section 1 of the Fourteenth Amendment. Thus, I find 

that the question must be addressed whether the United States intended to, and in fact did, divest itself of its jurisdictional control over 

the Horcon Tract prior to this respondent's birth in 1935. 

III. Exercise of Jurisdiction by the United States over the Horcon Tract 

I find that the evidence overwhelmingly establishes that the United 

States had elected to withhold its jurisdiction over the Horcon Tract at 

the time of this respondent's birth." In this regard, one need look no 

fUrther than the stipulations of the parties'' and the respondent's brief 

" Majority opinion at page 8. 

" The majority's discussion of the factual issues is premised on the erroneous conclusion that the Government case depends on a showing that the United States surrendered 

its "rights of sovereignty" over the Horcon Tract to Mexico prior to the respondent's 

birth. The majority finds that such a showing was not made because the 1970 treaty 

indicates that sovereignty was transferred therein and because that treaty would have 

been a "futile exercise" if.the "rights of sovereignty" had already been relinquished. 

They further pose the question: Could the United States have reaffirmed its jurisdictional control over the tract prior to the respondent's birth? 

This analysis confuses the 'ultimate power of a nation to exercise full and complete 

jurisdiction within its territory with its coexisting power to consent to a relaxation in 

practice of that absolute and complete jurisdiction. It is not submitted that the ultimate 

"right of sovereignty" was transferred to Mexico before the effective date of the 1970 

treaty. Until that treaty transferred sovereignty over the tract, the United States could 

have reasserted its jurisdiction control (just as this country retains the ultimate right to 

"destroy" the implied restriction on jurisdiction over foreign warships within its 

waters). See The Schooner Exchange, supra at 146. During the period when jurisdictional control is voluntarily relinquished, however, persons born within such an area 

(whether on a tract of land or onboard a foreign warship) cannot be found to bo born 

"subject to the jurisdiction" of the United States within the meaning of the Fourteenth 

Amendment. 

'=It is well settled that stipulations of fact fairly entered into are controlling and 

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Interim Decision #2748 

before the immigration judge. 

The stipulation reflects that the "United States of America ... has 

totally refrained from exercising jurisdiction over the... 'Horton 

Tract' since 1906." (Record at page 10) (underscoring supplied). This 

conclusion is well supported in the record. No United States official at 

Federal, State, or local level ever exercised any authority over the area; 

no laws of this country were ever enforced therein; no United States 

taxes were collected; no governmental services or benefits of any kind 

were provided; no obedience or allegiance to the United States by those 

born therein was demanded; and no "protection" by the United States 

Government was supplied. 

Conversely, the parties have stipulated that the deaths and births 

(including the respondent's) of persons living within the Horcon Tract 

have been recorded on the Mexican Civil Registry's; that the laws of 

Mexico, including the laws of conscription, have been exercised within 

that area (the respondent himself complied with Mexico's conscription 

laws); that the roads and schools have been maintained by Mexican 

authorities; and, that the only police protection and other governmental services ever provided came from the Mexican Government. 

It appears beyond question that since the transfer of the Horcon 

Tract to the southern side of the Rio Grande in 1906, no jurisdiction 

has been exercised therein by the United States. The respondent 

submits on appeal that the fact that this country maintained a port of 

entry only 300 yards from the Horcon Tract between 1929 and 1949 

shows that it "had not abandoned a section of its national soil that 

happened to be south of the Rio Grande." The purpose of building that 

bridge, however, appears to have been related more to providing access 

to "prohibition speakeasies," than to evidencing any intent to exercise 

control over the tract. For even while the bridge was in existence and 

access to the tract was readily available, respondent admits that the 

United States continued to refuse to exercise any jurisdiction over that 

area. 

This leads to the final question of why jurisdiction was withheld. 

Was it through mere neglect or was a conscious election made to waive 

jurisdiction because of the peculiar location of the tract? An answer to 

this question is found in the Secretary of State's Letter of Submittal to 

the President forwarding the "Boundary Treaty of 1970." After 

reviewing the origin of the Horcon Tract and the subsequent shifting 

conclusive of the matters stipulated to therein. See Fenix v. Finch, 436 F.2d 831, 837 (8 

Cir 1971), and the cases cited therein; Stipulations, sec. 13. 

"In this regard, it is noted that the respondent entered the United States in 1972 by 

presenting his "Nonresident Alien Mexican Border Crossing Card" (Form 1-186). At the 

time he applied for and used that card (when 37 years old), the respondent apparently 

considered himself to be only a citizen of Mexico (See Form 1-190). 

911c 
Interim Decision #2748 

of a Mexican village across the United States territorial line, the 

Secretary of State wrote: 

In view of the exceptional origin and situation of the detached (tract), the United 

States at Federal, State, and local levels, has refrained from exercising jurisdiction 

over it. 

The tract did not escape the notice of the United States from 1912 

until 1970; instead, an intentional decision was made for political 

reasons not to exercise jurisdiction over the area. Although the 

majority appears troubled by this conclusion, it is not contested by the 

respondent as he submitted in his brief before the immigration judge 

that the "problem with jurisdiction in the Horcon Tract since 1906 has 

been the federal government's timidity in exercising its political jurisdiction over the ... Tract for fear of causing an international incident." The respondent also submitted below that: 

The United States has long known that the territory was American territory, but 

for fear of disturbing the international harmony with Mexico the federal government 

acquiesced to the entry of aliens and establishment of homes on the property and 

accepted the fact that a viable community existed on American soil. 

Thus, the inescapable conclusion is that the United States, for 

foreign policy reasons, intentionally elected to except from its jurisdiction those few hundred acres of its territory which through unique 

circumstances came to fall on the southern side of the Rio Grande. This 

it had the legitimate sovereign power to do effectively. Therefore, when 

this respondent was born within that tract in 1935, he received no 

protection from the United States Government, owed this nation no 

obedience or allegiance, and was not in any manner "subject to the 

jurisdiction thereof." 

In view of this final factual finding, I conclude that it has been 

established that the respondent acquired no jus soli citizenship by 

virtue of his birth in the Horcon Tract. Hence, I find that it has been 

established by clear, convincing, and unequivocal evidence that he is 

not a citizen of the United States and that he is deportable as charged. 

I would, therefore, dismiss theappeal. Moreover, as this is a matter of 

utmost importance, I believe the proceeding should be referred to the 

Attorney General for further review. 

DISSENTING OPINION: Mary P. Maguire, Board Member 

I concur in the foregoing dissenting opinion. 

2f1R 
Interim.Decision #2748 

BEFORE THE ATTORNEY GENERAL 

(December 18, 1979) 

This matter is before me for review pursuant to 8 C.F.R. section 

3.1(h)(iii) upon a referral by the Board of Immigration Appeals at the 

request of the Immigration and Naturalization Service. The Board has 

sustained respondent's appeal from the decision of the immigration 

judge ordering him deported. 

Respondent Homero Cantu-Trevino is an adult male who was admitted to the United States from Mexico in 1972 as an alien visitor. He has 

conceded remaining longer than authorized and, if an alien, is deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 

U.S.C. 1251(a)(2). 

Respondent was born on August 25, 1935, on a ranch in an area of 419 

acres known as the "Horcon Tract" (the Tract) near the United States 

boundary with Mexico. He claims United States citizenship by virtue 

of his birth in that area, which was then territory of this country. His 

parents were natives of Mexico.' 

The record in this matter is comprised principally of stipulations of 

fact presented by the Service and respondent, together with exhibits 

submitted by the latter. Following is a summary of the pertinent 

evidence. 

Until 1906 the Tractwas the southern half of a reverse-S meander of 

the Rio Grande River, the international boundary between the United 

States and Mexico, and was a contiguous part of Hidalgo County, 

Texas. The land within the northern part of the meander was then and 

has at all times remained Mexican territory. In 1906 an American 

irrigation company, acting for its own benefit, illegally changed the 

course of the Rio Grande by cutting a diversionary channel along a line 

that positioned the Tract on the Mexican side of the new course and 

ended the contiguity of the Tract with rest of Hidalgo County. 

Although the American company's action violated a convention 

entered into by the United States and Mexico in 1884, it did not have 

the effect of changing the international boundary. The Tract continued 

to be American territory until the United States ceded it to Mexico in 

1972, receiving in return an equal amount of acreage owned by Mexico 

north of the Rio Grande. This exchange and others were made in 

accordance with a treaty signed by the two countries on November 23, 

1970, to resolve various pending boundary differences and 

' Respondent acquired Mexican citizenship at birth, Matter of Quintanilla-Montes, 13 

I&N Dec. 508 (BIA 1970). His possession of Mexican nationality does not affect his claim 

to nationality of the United States. See Perkins v. Elg, 307 U.S. 325, 329 (1939). 

207 
Interim Decision #2748 

uncertainties? 

The parties to this matter stipulated that the United States "totally 

refrained from exercising jurisdiction" over the Tract after the diversion of the Rio Grande_ Respondent's birth in 1935 was recorded in a 

Mexican civil registry office. When the time came, he complied with the 

Mexican conscription laws. 

The town of Rio Rico, Tamaulipas, was established in 1929 in the 

northern or Mexican part of the original reverse S-curve of the river 

and from its founding was administered by Mexican officials. Because 

of erosion at its northern edge, Rio Rico gradually shifted southward 

and beginning October 1941, 6 years after respondent was born, 

crossed the former river bed so as to encroach on the Tract. A scholarly 

work written sometime after 1965 2stated that the persons residing 

there in that year did not know of the true international boundary and 

that officials of Hidalgo County, Texas, were not aware the Tract 

belonged to the United States. 

In a letter forwarding the Treaty of November 23, 1970, to the 

President for relay to the Senate, the Secretary of State informed him 

of the unlawful transfer of the Tract to the Mexican side of the Rio 

Grande and went on to say, "In view of the exceptional origin and 

situation of the detached tract, the United States, at Federal, State, 

and local levels, has refrained from exercising jurisdiction over it." 4 

Article VI(B) of the Treaty provides that its transfers of the Tract and 

other areas "shall not affect in any way ... Nile legal status with 

respect to the citizenship laws of those persons who are present or 

former residents of the portions of territory transferred." 

Finally, the record in this proceeding contains no evidence that the 

United States expressly renounced or formally decided not to exercise 

jurisdiction of any kind over the Tract at any time before the respondent's birth. 

The respondent's assertion of American nationality is based on the 

Citizenship Clause of the Fourteenth Amendment, which provides: 

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.' 

The Service concedes that respondent was born in the United States 

for purposes of this clause. It denies, however, that he was born 

"subject to the jurisdiction" of the United States because this country 

Senate Ex. B, 92d Cong., 1st Sess., April 21, 1971; ratified November 29, 1971, 117 

Cong. Rec. 43249. 

' James A. Hill, "El Horcon", the United States-Mexican Boundary Anomaly, Rocky 

Mountain Social Science Journal. 

4Senate Ex. B, supra, n. 2. 

The words "subject to the jurisdiction thereof" relate to the date of birth or natural. 

ization. Elk v. Wilkins, 112 U.S. 94, 102 (1884). 

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Interim Decision #2748 

did not exercise governmental authority in the Tract after 1906 and, so 

far as the record shows, did not resist the Mexican Government's 

exercise of such authority. In short, the Service contends there was a 

de facto waiver of jurisdiction before the respondent's birth. The 

immigration judge agreed and found that the respondent is not a 

citizen of the United States. 

The Board of Immigration Appeals reversed the judge's decision. It 

pointed out that in a deportation proceeding the Service has the overall 

burden of proving its case by clear, unequivocal, and convincing 

evidence, Woodby v. INS, 385 U.S. 276 (1966), and is also required to 

provide the same measure of proof to establish the alienage of a 

citizenship claimant born in this country. Nishikawa v. Dees, 356 

U.S. 129, 133 (1958). Then the Board assumed for the purpose of 

argument that the United States could by "non-action" relinquish 

Fourteenth Amendment jurisdiction over a portion of its territory. It 

went on to find, however, that the Service had not produced the 

required quantum of proof that such jurisdiction in relation to the 

Tract had in fact passed from the United States to Mexico before the 

birth of the respondent. The Board accordingly terminated the deportation proceeding against him_ It left "to some future date and 

some other process" a decision whether he is a United States citizen. 

I concur in the Board's factual conclusion that the evidence on the 

issue it framed does not provide sufficient support for a holding that 

the United States by implication renounced or gave up its Fourteenth 

Amendment jurisdiction at a time fatal to the respondent's citizenship. However, I cannot join in the view of the Service and the assumption arguendo of the Board that this is a valid issue. More particularly, 

I cannot read the Citizenship Clause to permit in a case like this the 

severance of Fourteenth Amendment jurisdiction from territory in 

which the United States is the sovereign. Accordingly, I have concluded that respondent acquired citizenship of the United States at 

birth. 

The starting point for the ascertainment of the correct approach in 

this matter is the landmark case of United States v. Wang Kim Ark,169 

U.S. 649 (1898), which held that the Fourteenth Amendment conferred 

citizenship on a child born in the United States to parents of Chinese 

descent who were resident aliens. The Court stated that the common 

law rule in this country both before and after it gained its independence was the English rule that any person born within the 

territory of a sovereign nation thereby acquired its citizenship. The 

purpose and effect of the Citizenship Clause, according to the Court, 

was in part to affirm this principle of jus soli in the Constitution. As it 

209 
Interim Decision #2748 

stated, 169 U.S. at 693: 

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the 

country, including all children here born of resident aliens, with the exceptions or 

qualifications (as old as the rule itself) of children of foreign sovereigns or their 

ministers, or born on foreign public ships, or of enemies within and during a hostile 

occupation of part of our territory, and with the single additional exception of children 

of members of the Indian tribes owing direct allegiance to their several tribes_ The 

Amendment, in clear words and in manifest intent, includes the children born, within 

the territory of the United States, of all other persons, of whatever race or color, 

domiciled within the United States. Every citizen or subject of another country, while 

domiciled here, is within the allegiance and the protection, and consequently subject 

to the jurisdiction, of the United States. His allegiance to the United States is direct 

and immediate, and, although but local and temporary, continuing only so long as he 

remains within our territory, is yet, in the words of Lord Coke, in Calvin's Case, 7 Rep. 

6a, 'strong enough to make a natural subject, for if he bath issue here, that issue is a 

natural born subject.' 

The Court had earlier in its opinion, id. at 682, related the words 

"and subject to the Jurisdiction thereof" to the "exceptions or qualifications" referred to in the above passage: 

The real object of the Fourteenth Amendment of the Constitution, in qualifying the 

words. 'All persons born in the United States,' by the addition, 'and subject to the 

jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest 

words, (besides children of members of the Indian tribes, standing in a peculiar 

relation to the National Government, unknown to the common law,) the two classes of 

cases—children born of alien enemies in hostile occupation, and children of diplomatic 

representatives of a foreign State—both of which, as has already been shown, by the 

law of England, and by our own law, from the time of the first settlement of the 

English colonies in America, had been recognized exceptions to the fundamental rule 

of citizenship by birth within the country. 

These excerpts from Wong Kim Ark are consistent with the understanding of 'the draftsman of the Citizenship Clause, Senator Howard. 

He explained to the Senate: 

[It] is simply declaratory of what I regard as the law of the land already, that every 

person born within the limits of the United States, and subject to their jurisdiction, is 

by virtue of natural law and national law a citizen of the United Staten. This will not, 

of course, include persons born in the United States who are foreigners, aliens, who 

belong to the families of ambassadors [sic] or foreign ministers accredited to the 

Government of the United States, but will include every other class of persons.' 

' Gong. Globe, 39th Gong., 1st Sen., 2890, May SO, 1866. 'The words "subject to the 

jurisdiction thereof" were obviously the basis for Senator Howard's remarks concerning 

the exclusion of families of ambassadors and foreign ministers. In later remarks he 

assured the Senate that these words were also a means of sAcluding tribal Indiana from 

citizenship by birth. Id, 2890; 2895. Elk v. Wilkins, 112 U.S. 94 (1884), vindicated these 

assurances by holding that children born to such Indians did not acquire citizenship 

under the Fourteenth Amendment. 

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Interim Decision #2748 

Judicial interpretation of the Citizenship Clause has uniformly adhered to Wong Kim Ark. See for example, Perkins v. Elg, 307 U.S. 325, 

328-29 (1939); Acosta v. Gaffney, 413 F.Supp. 827, 830-831 (D. N.J. 1976), 

rev'd on other grounds, 558 F.2d 1153 (C.A. 3,1977); Regan v. King 49 

F.Supp. 222 (N.D. Calif. S.D., 1942), aff'd, 134 F:2d 413 (CA. 9, 1943), 

cert. den., 319 U.S. 753 (1943); and see Gordon and Ropiffield, Immigration Law and Procedure, section 12.5 (1979). 

Thus there is no basis in the legislative history or judicial construction of the Citizenship Clause for the view that territory of which the 

United States is the sovereign can be deemed removed from its jurisdiction for purposes of the Citizenship Clause. Instead, it is the 

presence within and the personal relationship to the United States of a 

newborn child's parents that determines whether he was born "subject 

to the jurisdiction thereof" and without more became a citizen. Accordingly, since the birth of the respondent hi this matter took place in 

the Horcon Tract before the United States transferred it to Mexico and 

since his parents did not fall within any of the exceptions to the rule of 

jus soli noted in Wong Kim Ark, he became a citizen at the moment of 

birth. 

The Service has stated that if respondent acquired American nationality, he has never lost it The immigration judge also found no basis 

for expatriation. The order of the Board terminating the deportation 

proceeding against the respondent is affirmed. 

211