Citizen Hamdi?

The surreal, otherworldly condition of the U.S./Mexico border made the news again last week, when a woman with six pages ripped from her passport walked into Texas from Mexico and attempted to board a flight to New York.

The woman, Farida Goolam Mohamed Ahmed, had a South African passport, but authorities are trying to confirm her identity and nationality.

Perhaps Al Qaeda has realized that it is a lot easier to forgo entirely the visa application process and just walk into the U.S. from Mexico with the four million other individuals who do it each year.

Bucking the trend, 30-year-old Mexican national Maria Christina Rubio (search) is trying to enter the U.S. the legal way. After one prior illegal entry, an ignored prior order of deportation and a residency application that was denied two years ago, Rubio was removed from the United States on July 16 and returned to her home country.

But Rubio wants back into the United States. In the legal equivalent of using an unborn child as a human shield, she has commenced an action in the Federal District Court in Kansas City, Mo., arguing that her unborn fetus is a US citizen. This, she argues, means that her deportation has resulted in the deportation of a U.S. citizen. Her argument was based on the current custom of granting U.S. citizenship to anyone born in the U.S., even if that person’s parents happen to be in the U.S. in violation of its laws. 

The Fourteenth Amendment (search), on which the custom of "birthright citizenship" (search) is allegedly based, reads "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." 

However, the qualifying phrase, "subject to the jurisdiction" has been ignored for approximately 100 years, and has been given the force of law.

Incredibly, the judge bought it, but only in part, and Rubio’s deportation was temporarily stayed.  But, sources say, the stay expired some time before July 16, and Rubio was transported to Mexico. Despite the fact that Rubio was the subject of not just a prior order of deportation, which she chose to ignore and remain in the United States, but also a denied residency application, her husband promised a lawsuit against the Bureau of Immigration and Customs Enforcement based on what he called “unlawful deportation.”

Rubio’s lawsuit is just the latest attempt at dilution of the concept of U.S. citizenship. Across the country, cities with burgeoning immigrant populations are for the first time extending the right to vote in municipal elections to non-citizens (search), and individuals who have taken up arms against America are actually asserting their U.S. citizenship as a means of obtaining enhanced rights. 

Yaser Esam Hamdi (search) was apprehended in Afghanistan as an enemy combatant and taken into the custody of our armed forces. Hamdi was initially taken to Guantanamo Bay (search), but he was transferred to Norfolk, Va., after it was learned that he had been born in Louisiana. Shortly after birth, Hamdi was taken to Saudi Arabia, lived there and then joined a terror group bent on destroying America. Hamdi continues to be held in Norfolk, and in a triumph for common sense, continues to be classified as an enemy combatant.   

Hamdi commenced an action in federal court designed to win him access to a lawyer and other Constitutional rights, which he contended he was entitled to because he was a U.S. citizen at birth. He has the support of the longstanding custom that gives citizenship to all individuals born in the U.S. 

For the first time in nearly a century, there is division on the Supreme Court over whether or not the 14th Amendment dictates that citizenship adheres to all individuals in the U.S. at the time of their birth. A critical distinction is made by dissenters Justices John Paul Stevens and Antonin Scalia. Where Justice Sandra Day O’Connor, writing for the majority, terms Hamdi a “citizen by birth,” Stevens and Scalia refer to Hamdi as a “presumed U.S. citizen.” That Hamdi became a citizen at birth is not at all clear, Stevens and Scalia say.   

When the 14th Amendment became law, the U.S. simply did not have the kind of immigration it has today. Members of Congress, and the members of the Supreme Court who later reduced the 14th Amendment to its current, oversimplified meaning, probably could not conceive of an America with four million illegal immigrants per year, or in which people would be born only to leave and be schooled in madrasas (search) that urge the destruction of our way of life. 

In the Hamdi dissent, there is hope that America may finally be returning to a time when U.S. citizenship is not an entitlement, but a gift.  

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 is the author of The New Immigration Law and Practice, to be published in October.

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