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The Attack On The 14th Amendment And The Myth Of Anchor Babies

– Posted in: Citizenship And Naturalization
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At a recent green card interview, the officer asked my client, “Why did you return home in 1985 and 1988?”

“To give birth to my two children,” she responded.

“I couldn’t afford the health care here.”

The officer gave me a confused, dazed look.

I couldn’t bite my lip.

“Sort of kills the anchor baby rhetorical nonsense, doesn’t it?”

 

Political Hijacking The Constitution

The issue properly formulated is not about anchor babies, a mean-spririted term used by immigration opponents.

Rather, the issue is birthright citizenship under the 14th Amendment.

Stated simply, are children born in the United States entitle to U.S. citizenship?

As noted in The Anchor Baby Debate: U.S. Citizenship For Immigrant Children, the matter was deemed settled nearly 150 years ago.

Ratified in 1868, 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.”

Unfortunately, in politics, nothing is sacred.  Especially when it comes to immigration politics.

Now, a short-sighted effort to revise American history threanens to raise its ugly head again.

At a recent press conference, President Trump said that he was looking at ending the rule.  Of course, he sidestepped the unlikely legal prospect of prevailing in court.

(It’s not the first time he has hinted at such efforts.  Given his recent hard-line policy shifts, however, his comments should not be minimized,)

The rhetoric serves his primary political purpose.  To inflame the xenophobic passions of his support base.  Especially as the election season heats up.

For over two decdes, anti-immigration zealots, sensing an opportunity to influence voters based on fear-mongering, have seized upon the issue.  Over and over again, they present images of immigrants crossing the border in waves, sucking up our resources until there is nothing left for citizens born here.

They equate birthright citizenship anchor baby imagery.

Pregnant mothers come to the U.S., the disinformation stresses, to ensure their children are born on American soil.  Once that is accomplished, the children can turn around and sponsor their parents for lawful immigration status.

To an extent, the false story line has worked.

Much of the public does not understand the immense legal difficulties or far-reaching social consequences of eradicating the 14th amendment.

Moreover, like other anti-immigrant slogans, the anchor babies terminology heightens anxieties.

Yet, the panic is unfounded.

The Permanent Residence Process Is A Deterrent To Anchor Babies Citizenship

On the one hand, the anchor babies hyperbole is based on a flawed presentation of the permanent residence process.

I have served for over 20 years as a Riverside immigration lawyer. I’ve never met anyone who came here to obtain citizenship through an unborn child.

Even if that was a deliberate plan, the likelihood of success is thin.  To carry out such a far-fetched idea would take over 21 years.  In fact, 33 years or longer.

Allow me to explain.

To begin, the unborn child would have to turn 21 before he could petition his parent for a family-based visa.

Second, from the time the petition for the parent is filed, the parent has to wait several more years for their green card interview date.

Then, since the parent arrived here or lived in the U.S. all that time without permission, they would not be eligible to interview here.  Their paperwork would proceed under the rules for consular processing.

This means the parent would have to return home for their green card interview.  Last but not least, the parent would need to win a rarely-granted family unity I-601 waiver to be allowed back into the U.S.  (But only if they had a lawful resident or U.S. citizen parent or spouse meets the requirent of a qualifying relative.)

Maybe opponents’ rhetoric accurately portrays the motivation of some immigrants – but the true figures are far, far, far less than they suggest.

Anchor Babies Fact Versus Fiction

On the other hand, the anchor babies innuendos do not accurately reflect social realities.

According to a March 2019 report from the Urban Institute, covering immigration familes, over the decade from 2007 to 2017:

  • One quarter of children living in the U.S. have at least one immigrant parent.  This equals 18.6 million.  Of this amount, 16.8 million of the children are U.S. citizens.
  • Most of these children (61%) have at least one parent who is a U.S. citizen.  5 million have an immigrant-born parent and a United States-born parent.  6.4 million have two-immigrant parents but at least one has naturalized.  The other 7.2 million children have two immigrant parents.  (It is unknown how many of these parents are already lawful pemanent residents.)
  • The majority of children with immigrant parents are not new households.  Of all children living with immigrant parents, 77% (14 million) are with parents who have resided in the U.S. for 10 years or longer.   12% (2.4 million) are with parents who have lived here 5 – 9 years, and 11% (2 million) are with parents who have lived here less than five years.
  • And according to a recent Pew Research Center study, 250,000 babies were born to undocumented immigrant parents in 2016. And according to other studies, less than 1% of these children are born to parents who lived here less than two years before giving birth.  And as the other studies cited above show, many of these children have one parent who is either a U.S. citizen or a lawful permanent resident.

These statistics contradict the claims of immigration reform opponents who claim immigrants come to the United States simply to give birth to children here.

As a citizenship attorney, I know the reality for immigrants and citizens alike is love just happens.

Giving birth to a child born in the United States is normally a byproduct of living here.

Immigration opponents place the cart before the horse. They need to be honest.  Lying to constituents is no way to serve the public.

It also distorts the social realties of immigrant families upon which our immigration polices should be built.

By , Immigration Law, Policy, And Politics

 

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