Posted on 07/27/2004 3:33:44 PM PDT by yankeedame
Posted on Mon, Jul. 26, 2004
Pregnant woman wants re-entry to U.S., lawyers say fetus is citizen
Associated Press
LOS ANGELES - Lawyers for a deported Mexican woman who is eight months pregnant are seeking her return to the United States to protect the unborn baby's health. They also say under federal law the fetus is a viable human being and thus may be eligible for citizenship rights.
That argument sounds like a long shot to some on both sides of the immigration debate. But in May, a U.S. District Court judge in Kansas City, Mo., approved a stay of deportation for a pregnant Mexican woman after raising, among other concerns, the question of whether her fetus could be considered a U.S. citizen. The judge is reviewing the issue.
That Missouri decision cannot set legal precedent, but immigration attorneys say it may offer them a new angle in deportation cases.
Last week immigration officials denied a request to grant 30-year-old Maria Christina Rubio, mother of two young U.S.-born daughters, a temporary humanitarian visa to return to the United States because of complications in her pregnancy. Rubio's attorney did not immediately return calls for comment. She was deported July 16.
Her husband's attorney, Luis Carrillo, said he is considering whether to file a lawsuit against Immigration and Customs Enforcement for unlawful deportation.
Carrillo said Rubio, who was hospitalized with complications in her fifth month and has suffered severe stomach pains throughout her pregnancy, needs to be back in the United States because the baby's health is at risk.
He also cited the Unborn Victims of Violence Act of 2004, in which unborn children are granted equal protection under criminal law. Carrillo said that since the fetus is 8 months and would be viable outside the womb, it should be treated as a child born in the United States.
"The child was conceived in the United States and would have been born in the United States except that the mother was deported. Through no part of his own, the unborn baby is in Mexico," Carrillo said.
Virginia Kice, a spokeswoman for Immigration and Customs Enforcement, said the U.S. Constitution's definition of citizen is very clear.
"All persons born or naturalized in the United States" are considered citizens under the 14th Amendment.
"It doesn't say all persons who were conceived in the United States," Kice said.
In the Missouri case, the court questioned whether the unborn child would be a U.S. citizen because its father was.
Lawyers for the U.S. Attorney's office in Missouri argued that while fetuses are protected under criminal law, the law does not restrict the government's immigration powers. Known as "Laci and Conner's Law," - the legislation was enacted after the bodies of Laci Peterson and her unborn son washed up along the San Francisco Bay in 2003. Peterson's husband, Scott, is charged with their murder.
Rubio was deported after she went to what her husband says was to be a status conference on her residency request. Immigration officials say the pregnant Rubio was immediately deported after it was discovered her residency request had been denied two years before and that she had previously entered the country illegally and been deported.
Kice said Rubio's lawyer at the time did not attend the hearing but was reached by telephone and did not raise any concerns about her health. She also said Rubio received an exam from public health services to ensure she was fit to travel.
Alan Diamante, an advising attorney in the case, said he believes it is important to bring the fetus citizenship argument to court, although he acknowledged it may be difficult argument to win.
"You can say this argument is a stretch, but these are the types of arguments that attorneys have to make to get into court," he said. "Laws are always changing and becoming harsher, and immigrant lawyers have to be creative to be heard."
I would hope this is true
. . . and thus may be eligible for citizenship rights.
No. According to the 14th Amendment, those *BORN* in the United States are citizens. While the fetus is a human being, it is not a citizen.
if her fetus is an American citizen... then its subject to our abortion laws... if its not subject to abortion law then ALL American fetuses are citizens and cant be aborted without their consent
You beat me to it.
Good grief! The ridiculous demands of illegal aliens in this country gets more clownish every day.
Let's see... if the woman's eggs are Mexican citizens and the father's sperm are American then who is to judge if the fetus is Mexican or American? Where are the feminists in this issue? I guess if the woman has true 'control over her body' the fetus is in the 'custody' of the Mexican citizen (it's mother) and therefore must be deported to Mexico.
TOUGH!!!! Everyone has to abide by this country's immigration laws. Let her do the same.
bump
The Supreme Court should have no problems with this one if it gets to them.
Isn't there a terrorism related citezenship issue before SCOTUS, where a terrorist captured in Afgan (?) claims to be a US citizen because he was born here on a diplomatic trip his parents made here? If he is ruled against, it could set our immigrant born citizen issue on its ear.
-----"Virginia Kice, a spokeswoman for Immigration and Customs Enforcement, said the U.S. Constitution's definition of citizen is very clear.
"All persons born or naturalized in the United States" are considered citizens under the 14th Amendment. "-----
Well the Amendment goes on to mention something about 'being subject to the jurisdiction thereof'; so one could make the argument that children born to illegal aliens shouldn't get automatic citizenship because as a child of a foreign national it is not subject to US jurisdiction. Of course no one is going to make that argument in this politically correct age, but it could be done.
And it should be done, or even better a new Amendement should be passed to make it clear that only children born to citizens and people here legally are automatic citizens. The framers of the 14th Amendment could never have foreseen the advent of massive illegal immigration and the perversion of the citizenship clause. It was never meant to reward illegal immigration.
That would not be a "claim" that would be a true statement. If he was born here, he is a citizen.
yep...nailed it
If the fetus is, indeed, aa American citizen - how can anyone ever again even hope to make pro-choice arguments? Yet, at the same time, you must literally be born in the United States in order to be an American citizen.
This one is going to be good.
I think that very concept or interpretation of the 14th amendment is being challenged.
There's no doubt in most here that she's carrying a 'viable human being', but I think that the law is clear that the child must be born here.
If she's allowed back into the US for her hearing, thanks to this judge, all her lawyers have to do is delay the hearing until the kid is born on US territory, and 'viola!', instant American -- followed shortly by the rest of the extended family from back home.
The implication that an non-resident alien's unborn child is an American citizen is horrifying to me. Merely flying through US airspace as an unborn fetus is enough to qualify for US citizenship now?
It's been said on Rush's show that there would be an abrupt turnaround in liberal's view of abortion once gene science is able to assist parents in detecting whether their child would be born gay or not --- Now I have to wonder if there would be an abrupt turnaround in social conservative's sentiments towards defining the unborn as a human-being when the US government declares the unborn fetus of an illegal alien an American citizen.
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