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."
Dang she pulled off this stunt twice before.
I didn't realize that. I thought if one parent was a citizen it automatically gave dual citizenship.
The amendment should be removed anyhow since it no longer fits it's original purpose. It is kind of silly --- if a fetus is 8 1/2 months but gets deported, it's a Mexican, if the baby gets born then it stays and the parents get welfare checks and a lot more, if the baby arrives here at any point after birth --- say an illegal makes it to one foot from the border and delivers one foot away, it's a Mexican baby even if she drags it over 5 minutes later, if she makes it just over the border, she's at a welfare check.
oh, lol. i thought you were directing it at another comment. :)
Im not completely up to date on this, but i believe dual-cit occurs when both parents are US citizens, and you are born on another countries soil (in US law anyway, the other nation's laws may provide otherwise)
that or the mother is a non-US citizen, and the father is a US citizen on US soil.
again, i may not be up to date, but i think thats the gist of it.
also, keep in mind what i said. even though my statement applies to my case, and thus "father makes you a citizen" does not ALWAYS apply, it may have also been part of "other nation's laws" that my mother had to have me on base.
the amendment need not be changed, otherwise the "born citizen" bit may waiver, and be undermined later (which would make me and my father natives of Germany and Scotland respectively.)
simply enforce what is there. if a child is born over here while the mother is visiting (or has been stuck due to health reasons, or any sordid excuse) then the child has citizenship here.
if a mother can climb past our border and have a baby, then we should keep the baby. we dont need to make the trip easy for her though, stop her with border patrols.
but i stand by it, if she gets here and has the child on the soil the instant it comes out of her, it is a US citizen. if the baby is born over there, it has citizenship over there!
But you would force Americans to pay for her free care which she is getting while at the same time is here for the purpose of getting a lifelong welfare check from that baby? Hospital workers obviously aren't working for nothing --- it's costing Americans some very big money to get these welfare mothers their checks.
This story proves once again that there is no ridiculous legal argument that some Federal district judge somewhere won't fail to buy.
in that case, welfare needs reform, not citizenship laws.
No, but the parents can apply for the baby's permanent resident visa and for him to be naturalized, as long as he's not yet 18 or 21 (I forgot which). For the minor children of a citizen, the PR visa applications probably get processed more quickly.
Probably not. They'll more likely have a turnaround in their sentiments towards defining a citizen as nearly anyone born here.
Interesting, the corner the libs keep backing themselves into, isn't it?
Unless she aborts after crossing the border.
I didn't realize the Sup Court had ruled on this. Thanks for the info.
Then I guess it would take an Amendment to correct a loophole that was never forseen by those who ratified the 14th.
If this logic works, my 11 month old would be an Ohio citizen here in Iowa.
Dual citizenship? :-)
I agree, although Congress has already fixed a part of the problem by repealing the "anchor baby" rule. A baby born in the U.S. to an illegal alien mother is a U.S. citizen under the Constitution, but he can no longer sponsor his mother for legal immigration until he reaches age 18. So the mother (if caught, that is) has the choice of leaving with the baby or putting it up for adoption. (If she leaves with the baby, the baby is still a U.S. citizen and can return when he grows up, but the mother can't apply to enter legally as a relative of a citizen until the child is 18).
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