Rethinking Citizenship

I looked in my immigration law practice's scheduling book, and saw a blank space after Irma's name.  She did not leave a telephone number and had refused to tell our receptionist what the purpose of her appointment was, so we had to wait until she arrived to find out why she wished to see us.

When Irma arrived, she looked as if she could give birth at any moment.  After two of us helped her into a chair, she explained that she had no immigration status and that her husband was in Ecuador. She said that their baby was expected in a week, and she wanted to find out if any immigration benefits would be available to her and her husband when the baby was born.

Irma was one of the tens of thousands of women who enter the U.S. each year with a single purpose in mind.  It is not employment, or even a desperate effort to make out some claim for legal immigration status.  It is to give birth to a child within the borders of the United States.  Some run across borders at night, others enter on tourist visas and stay as long as it takes to give birth. 

The benefits reaped by each of these women, and their families, are enormous.  While it's true that none are eligible for federal public assistance, thanks to the 1996 Welfare Reform Act, the offspring of each is entitled to the full panoply of federal and state public assistance because they are citizens.  When those children reach age 21, they can petition their entire family into the U.S.  And during the time that child is reaching age 21, no immigration judge in the country will deport the mother, on the basis that doing so would cause hardship to the citizen child.  

As you might expect, the U.S. has some of the world's least restrictive citizenship rules.  With extremely rare exception, a person born in the U.S. is a U.S. citizen.  Compare this to a country like Japan, where a family's successive generations can live without ever being conferred citizenship.

Citizenship by birth in the U.S. is not just a function of immigration law, it's a right guaranteed by the Constitution's 14th Amendment.  Although the issue of citizenship for the children of noncitizens was litigated to conclusion in the 19th century, it's safe to say that never before in our history have so many people entered the U.S. illegally with the single-minded purpose of bearing a child on U.S. soil.  Though Great Britain and Australia once had citizenship rules similar to the U.S., they were scrapped in the 1980s in the face of mounting illegal immigration.   

"Anchor babies," as they are called, have probably always existed in the U.S.  But it's hard to imagine them existing in the huge numbers they do now.  The federal government, perhaps deliberately, does not track anchor baby births.  The Federation for American Immigration Reform put the figure at 165,000 births in 2001.  But other estimates put the number of children born to illegal aliens each year between 287,000 to 363,000. 

Though the lack of federal tracking makes it difficult to ascertain the costs of these births, the hard information that is available shows the degree to which state taxpayers support the lives of people who are not even allowed to be in the U.S.  In a recent year, California paid for 74,987 deliveries to illegal alien mothers, for a total cost of $215.2 million.  In the same year, 36 percent of all Medi-Cal paid births were those to illegal alien mothers.  In one Georgia county in 2001, taxpayers funded $650,000 in births to illegal alien mothers.  That equates to $7.8 million per year for one U.S. county.

Though direct federal public assistance to illegal aliens has been outlawed for the last seven years, it has not hindered its availability to them if they come to the U.S. to give birth.  Under a form of Medicaid called EMA, or "Emergency Medical Assistance," a doctor need only sign off on a form that states that harm might result to the illegal alien mother or child if money remains unavailable for treatment.  Medicaid is then available.  Medicaid administered on an EMA basis has been extended to pre- and postnatal care, surgeries having nothing to do with birth and even psychological treatment and foster care.                      

America's lax citizenship rules are now known throughout the world, and businessmen have found a way to profit.  Travel agencies in Taiwan, Hong Kong and South Korea openly cater to people who wish to travel to the U.S., legally, to give birth.  South Korean couples who want to avoid poor schools or compulsory military service for their sons travel to the U.S. on tourist visas that have been timed to coincide with the birth of their child.  When the child reaches school age, he can enter any U.S. public school district for which he can demonstrate residency. 

Even though many of America's seniors now struggle to pay for medicine, it has been almost four years since Congress mounted a serious effort to enact citizenship restrictions in these cases. It is unfortunate to be considering denying a baby born on American soil the privilege of citizenship that is his or her birthright, but until we come up with another solution, there must be a disincentive to stop women from entering the U.S. illegally just to give birth. Every year that America maintains its liberal citizenship rule is another year that U.S. taxpayers give millions of dollars in medical services to expectant mothers whose very presence in our country is illegal.         


Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He recently left the New York City law practice he founded in 1997 for the "more normal life" of insurance defense, and is author of The New Immigration Law and Practice, a textbook to be pubished by West Legal Publications in October, 2003.

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