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The Anchor Baby Debate: Citizenship For Children Born In The United States

– Posted in: Immigration Law, Policy & Politics | Citizenship And Naturalization

immigrant-children-citizenship-anchor-baby-debateAlas, nothing is sacred in the world of politics.

Are immigrants’ offspring, who are born in the United States, entitled to U.S. citizenship?

For nearly 150 years, the matter was settled. The 14th Amendment, ratified in 1868, had resolved the debate.

“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.”

Over the past weekend, the bell was sounded for a new round of controversy on immigration reform.

George Will, the Washington Post columnist, rang the alarm.

How Immigrant Families Emerge

Child birth across cultural lines, like all child birth, is often unplanned.

Mike, a Japanese citizen, arrived in the U.S. on a tourist visa. One day,while visiting at a friend’s house, he met Jane. Jane, born and raised in Guatemala, entered the U.S. as a young child without legal documents. Over the course of the next few months, Mike and Jane became close friends and started dating. Soon they fell in love.

Just before Mike’s visa expired, Jane became pregnant. Mike returned to his home country, Jane stayed here. Soon afterward, she learned about her pregnancy. 8 1/2 months after Mike’s departure, she gave birth to a son in Riverside, California.

In “An argument to be made about immigrant babies and citizenship,” Will argues that Jane’s son should not be granted U.S. citizenship.

The 14th Amendment did not include children of illegal immigrants, Will asserts, because there were no laws restricting immigration in 1868.

A Simple Reform Or A Simplistic Argument?

Will writes this simple reform would reduce one of the incentives for illegal immigrants. He quotes University of Texas Law Professor Lino Gragli:

“A parent from a poor country . . . can hardly do more for a child than make him or her an American citizen, entitled to all the advantages of the American welfare state.”

As a Riverside immigration lawyer, I’m stunned by Will’s position.

First, the legal reform suggested is not simple.

It involves changing the 14th amendment of the constitution.

Some opponents to birthright citizenship claim three possible paths exist to change the 14th Amendment: a constitutional amendment, a congressional statute, or a city ordinance. None are easy.

In fact, none may be legal.

Elizabeth Wydra, writing for the American Constitutional Society, states the 14th amendment was written to guarantee the inalienable right to citizenship for all native-born children, whether members of an unpopular minority or descendants of privileged ancestors.

Second, the vast majority of immigrants do not enter the U.S. to give birth to children here.

Contrary to Gragli’s view, not all undocumented immigrant children born here are from poor countries.

Most likely, there are some immigrants who come to U.S. for the reason noted by Will. Yet, during 20+ years providing citizenship attorney services, I never met a client or potential client who came here to obtain U.S. citizenship for an unborn child.

Moreover, the attack on the 14th amendment does not make sense – given immigration regulations and studies.

Entering the U.S. to give birth to a child for the purpose of obtaining lawful residency 21+ years later defies real-world logic.

Push And Push Immigration

Immigration occurs due to various push and pull factors. They include poverty, persecution, economic opportunity, and religion freedom. These are the real reasons people enter the U.S. with or without permission.

Like Jane and other clients from my Riverside immigration lawyer office, having a child born here is a byproduct of living in the U.S. It is not the reason Jane or the others came here in the first place.

Those opposed to birthright citizenship overlook the very real possibility of creating a new underclass. Children would be born and raised here . . . but lack the legal right to live here . . . or anywhere else.

The children would not even qualify for permanent residence.  They, too, would become illegal immigrants – simply by being born here.

Most likely, removal and deportation defense cases would increase.

Punishing children for their parents’ actions is not the American way of administering justice.

Nor is it an immigration solution.

By Carlos Batara, Immigration Law, Policy, And Politics