Posted on 10/11/2018 9:46:30 AM PDT by SeekAndFind
The idea of "birth tourism" — it's also known as "maternity tourism," and defined as travel to the U.S. for the purpose of having a child on American soil — is, to the growling anti-immigration crowd, utterly enraging. It's a back-door entry into U.S. citizenship, they say. It's happening too much. It's ruining the country.
But what really irks the tight-borders bunch, and has for years, is that birth tourism — maternity tourism, whatever you want to call it — is perfectly, Constitutionally protected, 100 percent legal.
Thousands and thousands of foreign nationals, many from China and Russia, come to the U.S. every year on travel visas in order to take advantage of the 14th Amendment to the Constitution, which states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."
That means that no matter where you're from or what your intentions are, no matter what you've done in the past, if you give birth in America, jus soli (or "law of the soil") applies. Your child is, with only a few exceptions, automatically a U.S. citizen.
The 14th Amendment was passed in 1868 to grant citizenship to former slaves, who had been denied the right in the Supreme Court's pre-Civil War Dred Scott decision. Later, the Supreme Court, in a landmark 1898 case involving a child born in the U.S. to Chinese parents, expanded that "birthright citizenship" to anyone born on American soil.
The whole idea of birthright citizenship is different here than in many other countries, where citizenship is based on lineage. Former Clinton-era assistant attorney general Walter Dellinger explained it this way to NPR in 2010:
The idea of "born here, citizen here" has been challenged countless times over the years — especially from those who object to someone who enters the country illegally having a baby who is automatically a citizen — including through a proposed amendment to the Constitution in 2011. Donald Trump made changing the 14th Amendment, or somehow addressing birthright citizenship through legislative means, a platform of his immigrant-targeted campaign.
"Every congressional term, some Republican in the House, probably also in the Senate, introduces a law intended to steal that birthright tradition," says Anna O. Law, a professor of political science at Brooklyn College (BC) and the author of "The Immigration Battle in American Courts." Law also holds the Herb Kurz Chair in Constitutional Rights at BC. "It's never prevailed. It's a popular talking point for anti-immigrant prescriptionists."
And so it is that birth tourism thrives. A non-American woman comes to the country legally, on a travel visa of some sort. She goes through customs. And here gives birth to a bouncing baby U.S. citizen.
Right now, the coast is almost clear for non-citizens to come to the U.S. to have a baby. First, of course, a tourist has to go through an interview at an American consulate in her home country before being granted a visa to enter the U.S. Lying in that interview is basis for denial of entry and is considered fraud.
"If the policymakers think this is a problem, 1), pass a law; in order to get a visa, you can't be coming here for the sole purpose of [having a baby]. Or 2), you deal with it at the interview," Law says. "There are other ways of handling it that don't require a constitutional amendment. When you use a constitutional amendment, it's using an elephant gun to kill a mosquito."
If a mother-to-be is granted a visa, she still has to make it through Customs here. Generally speaking, the U.S. does not bar pregnant tourists from entering the country as long as they can prove they have enough insurance or money for medical bills. But ...
"Although there are no specific regulations prohibiting pregnant foreign nationals from entering the U.S.," according to U.S. Customs and Border Protection website, "entry is allowed or denied at the discretion of the admitting U.S. Customs and Border Protection (CBP) Officer."
Scaring away non-native parents-to-be, as Law suggests, is one way that could deter birth tourism. The idea is to tell potential tourists the negatives involved in having a baby on American soil: The fact that, as a citizen, the baby is "subject to the jurisdiction" of the U.S., meaning (for example) taxes eventually will be gathered, social security wages must be paid, and the child will someday have to register with Selective Service and would be eligible to be conscripted into the U.S. armed forces if a draft is reinstituted.
Still, many birth tourists see a future in which their child is eligible to be raised in the American educational system, enjoy Western culture and apply for government benefits.
Birth tourists, by definition (unlike illegal aliens), take their newborn, complete with U.S. passport, back to their home country and wait for a time they can come to the U.S. legally. At 21, American citizens can bring family members to live in the U.S. with them in what is known (and decried by anti-immigration forces that have become increasingly vocal under the Trump administration) as "chain migration."
The plan sounds risky, but parents of hundreds of thousands of kids — the numbers differ — are willing to try.
"You're really telling me this is a strategy? That's a long, long game," Law says. "You're going to drop an anchor 21 years in advance and hope things work out?
"I think for many of these parents, it's an escape hatch. In case something goes wrong in their home country. This is a way for them to get out. But the thing is, a lot of things can happen in 21 years. ..."
This is illegitimate and should go away immediately!!!
I’ve known people like this. They never lived in the US, nor intended to, but when things unraveled in their home country and they were forced to flee, they just got on a plane and went. Their friends were having to struggle with immigration lawyers and years of legal hassles, but for them it was seamless. It was the greatest gift their parents could have given them.
I don’t agree with the concept, but I totally understand why people want the blue passport in their safety deposit box.
One possible path to settle this:
Congress, using its enumerated authority to establish a uniform rule of naturalization,
1) Confers immediate US citizenship automatically to anyone born in the US, having two US citizen parents at the time of birth;
2) Confers conditional US citizenship to anyone born to a single US parent, regardless of location, US soil or otherwise. Full US citizenship conferred upon residing in the US for no less than 10 years prior to the 18th birthday or 5 years if residence is after 18th birthday
3) Confers NO US citizenship to those born on US soil that does not have at least one US citizen parent at the time of birth.
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.
14th Amendment
That “subject to the jurisdiction thereof” bars illegal aliens from claiming citizenship...
if you are breaking our laws to be here, and during the time you give birth, then you are NOT under the jurisdiction of our sovereign country, and cannot claim citizenship for your new child...
“Confers NO US citizenship to those born on US soil that does not have at least one US citizen parent at the time of birth”
Wong Kim Ark decision (1899) negated this by saying that the children of “sojourners”, a concept in English Common Law, were citizens as well.
Ark insisted he was a citizen having been born in San Francisco while his parents, subjects of the Chinese Emperor, were resident there.
This has been translated down the century as definitely applying to Lawful Permanent Residents, who we can regard Ark’s parents as being, and less definitely to illegal aliens, who are only euphemistically referred to as “residents”.
To restrict birthright citizenship to the children of citizens only certainly makes sense, but is a form of Jus Sanguinis that the 14th tried to do away with in favor of Jus Soli, since the children of Africans were the children of people that the Dred Scott decision clearly said could never be citizens.
The key point that needs to be made is that Ark was too sloppy of a decision, and needs to be either overturned or clarified: a legal sojourner would be a Lawful Permanent Resident in today’s parlance.
I have no problem with the children of LPR’s being citizens: if you are an LPR, you’re here on a citizenship path. We only grant such visas with that probability in mind.
What’s ridiculous is extending the definition to anyone who tripped over the fence or just got off an airplane on a tourist visa. No nation let’s illegal aliens or casual travelers decide who their citizenry will be, and that’s the current situation.
PS, some good info:
The Regulation - NOT law - that defines resident alien is here:
https://www.law.cornell.edu/cfr/text/26/1.871-2
A good discussion of how bad a decision the court made in Wong Kim Ark is here:
http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/
There is no real legal basis for either birth tourism or citizenship for the children of illegals. It’s just been tolerated, and the only legal basis for it are federal regulations, which were not written by Congress, but rather bureaucrats. They can be overturned by the Congress or the President overnight.
If one of the parents is not an American Citizen, the child should not be an American Citizen, no matter where it is born.
There is no “magic dirt” that makes someone an American Citizen.
My Cousin was a nurse in Tucson, Az - Non-US Parents & kids born at the Hospital were about 90% versus 10% kids born to American parents.
Needs to end NOW! One of the greatest threats to the Republic is its demographics.
The Ark decision is only relevant because US Congress has not exercised it’s authority under Article I section 8 clause 4 and established the rule for individuals born to foreign nationals on US soil.
The 14th Amendment says nothing about birthright citizenship, and Elk v. Wilkins refuted the concept that simply being born on U.S. soil makes you a citizen. Elk was a child of Indian Tribe members (Indians at that time were NOT U.S. citizens)—he claimed he became a U.S. citizen under the 14th Amendment by virtue of being born in the U.S. and the Supreme Court rejected that, saying that he was born to non U.S. citizen tribal members and was subject to the jurisdiction of the tribe, not the U.S.
The same is true with children on other non-citizens. Wong Ark muddied the waters because the parents were the then equivalent of today’s green card holders, so they were lawfully in the U.S. and subject to the jurisdiction of the U.S. to that extent. But the law needs to be clarified that children for foreign nationals in the U.S. only on a temporary basis, or here illegally, are NOT U.S. citizens.
I note that a number of rich Koreans come to give birth to sons in the U.S. partly so they can later claim their sons are not subject to the compulsory military draft in Korea. Korea takes the position that such “tourism births” are not sufficient to give Korean nationals rights as U.S. citizens and they do not recognize U.S. citizenship in those circumstances.
Agreed. I read an article a while back that said the USA and Canada are only two developed countries in the world that grant automatic citizenship to an infant born on our soil.
Then, we extend to that, chain migration.
That must stop.
Did she work at Kino?
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