• Explainer: ‘Anchor Babies’ and the Law

    August 26, 2015

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    Posted in: Iraq

    anchorbabies

    Thanks to brave presidential candidates Trump and Bush, et al, the term “anchor baby” is now the subject of interest and ignorance by a media preoccupied with whatever shiny object is held in front of it.

    Trump wants to tear up part of the Constitution he unilaterally proclaims is unconstitutional; no one is sure what the other Republicans plan to “do” about this issue, but they sure don’t support it somehow.



    Anchor Babies

    So what are “anchor babies” and which parts of American law affect them?

    An “anchor baby” (many find the term offensive, referring as it does to a child as an object) is a child born in the United States to a foreign citizen, legally or illegally present in the U.S., who, by virtue of the 14th Amendment to the Constitution, automatically and forever acquires American citizenship. The child need only prove s/he was born in the U.S.

    The term anchor comes into play because at the age of 21 the child can begin filing green card paperwork for his/her extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.

    Many conservatives feel conveying citizenship so freely cheapens the meaning of being an “American,” and especially object to the idea that a mother illegally in the United States can birth an American citizen. Others are troubled by a growing industry that sends foreign mothers to the U.S. specifically so that they can create such citizens, so-called “birth tourism.”


    The Law

    The concept that anyone born in the U.S. (one exception: those born not subject to U.S. law, which has been held to apply primarily to Native Americans and to children of certain accredited foreign diplomats exempt [immune] from U.S. laws, though there are loopholes even there) is automatically an American citizen is part of the 14th Amendment to the Constitution, the so-called Citizenship Clause.

    The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves forcibly brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford), which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

    The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld that a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong has been understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.

    It can get complicated, and there have been unsuccessful efforts to overturn or reinterpret Wong in light of contemporary concerns over immigration.

    For those who like their law in Latin, the idea that anyone born in a certain country automatically acquires citizenship there is called jus soli (right of soil.) The opposite, that citizenship is derived only via one’s parents, is called jus sanguinis (right of blood.) No European nation offers unrestricted jus soli, and very few other countries outside the Western Hemisphere do either.



    Foreigners, Visas and Babies

    While some foreigners who give birth in the U.S. enter illegally by walking across a land border, a significant number of moms enter the U.S. on visas or the rough equivalent, the visa waiver program, which provides less fettered access to citizens from certain countries, mostly Europeans. Some give birth in the U.S.; is this legal?

    It is. There is no law whatsoever that prohibits someone from coming to the United States specifically to give birth here and create an “anchor baby.”

    Many uninformed commentators point to two visa laws that they feel may prohibit such an act, the “public charge” provision and the fraud provision.

    Public charge is codified in Section 212(a)(4) of the Immigration and Naturalization Act. It says an individual who is likely at any time to become a public charge is inadmissible to the United States/can’t receive a visa. Some conservatives believe that moms coming to the U.S. to give birth, a country with the highest health care costs on the planet, should not be allowed in. They say many can’t, or won’t, pay, and are likely to have their maternity costs covered by American taxpayers.

    The problems in applying this law to so-called anchor baby moms are two-fold.

    First, the law is forward-looking; there needs to be information suggesting a mother plans to deliver at public cost. Proving the future is tricky business, even in regards to visas. In addition, the law states receiving public benefits does not automatically make an individual a public charge. In fact, many benefits are excluded from consideration, including Medicaid and other health insurance and health services, and specifically prenatal care. In short, a mom cannot be denied a visa or entry into the U.S. based upon public benefits she is legally eligible for. Immigration status — legal or illegal — generally is not considered when benefits are sought.

    The second visa law that comes up in conservative discourse is 212(a)(6)(C), fraud. The idea is that a women seeking a visa or to enter the U.S. may try and hide her pregnancy, or her intent to give birth in the U.S. She might say she intends only a short romp through Disneyland before returning home. So that’s lying, fraud, right?

    Well, it may be a lie, but it is not fraud as visas go. The fraud law requires a lie to be “material,” meaning if the truth were to be told, the visa would be denied. So, if someone says she is going to Disney but actually intends to rob a bank, that is a planned illegal act and the lie would be material. But since it is legal to give birth in the U.S., fibbing about it is not material.



    Birth Tourism

    The current issue of Rolling Stone contains a long article on “birth tourism.” Such “tourism” is a huge business in Asia, particularly in China where rising incomes coincide with existing interest in emigration. Companies arrange for everything; a mom need only provide money. The companies legally assist the mother in obtaining a visa, arrange for her to stay in the U.S. in an apartment complex (dubbed “maternity hotels”), usually in California for convenience for flights from Asia, full of other Chinese moms, and then give birth in a local hospital staffed with Chinese-speaking doctors.

    Such businesses have been around since at least the 1980s, and exist in most Asian countries. They are especially popular in China and Korea.

    Some birth tourism companies also offer VIP packages that include sightseeing and limousine service, and special accommodations for dads who want to fly in for the actual birth. The businesses operate openly, and advertise freely in Chinese-language media both here and abroad. It is big business: In 2012, according to Chinese state media, there were some 10,000 tourist births from China; more recent estimates have put the number as high as 60,000 a year.

    And since it is standard practice for the United States to grant a six month tourist stay for most visitors, the mother need not risk her or her baby’s health by traveling at the last minute. She can arrive around the end of the first trimester and stay on without incident. Once the baby is born, the birth tourism company helps mother obtain baby’s U.S. passport.

    There is absolutely nothing illegal about birth tourism under U.S. law.

    It is the active presence of such birth tourism out of China that lead candidate Bush to clarify that he was not speaking against Latinos, who are a huge voting block in America, but Asian anchor babies. “What I was talking about was the specific case of fraud being committed in organized efforts — and frankly, it’s more related to Asian people — coming into our country, having children in that organized effort, taking advantage of a noble concept, which is birthright citizenship.”



    Bottom Line

    Leaving aside the generally jingoistic and often racist arguments conservatives put forward against anchor babies and birth tourism, there is nothing illegal going on.

    Any desire to make such things illegal will require significant changes to the law, perhaps extending right up to re-amending the Constitution to reverse concepts that have been a part of America since the late 1800s. Despite all the rhetoric, in the end there is nothing really to see here.




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  • Recent Comments

    • John Poole said...

      1

      So you are implying nothing needs to be done about such folly? If changing the law is just too daunting then why don’t we ask the countries who exploit the folly reciprocate? I doubt many from Finland are staying at birth hotels but if there are shouldn’t Americans deserve reciprocal rights?

      08/26/15 8:30 AM | Comment Link

    • wemeantwell said...

      2

      The article is to explain the current state of the law, not to opine on what’s right or wrong.

      08/26/15 8:32 AM | Comment Link

    • Lafcadio said...

      3

      Great explanation PVB!

      08/26/15 9:12 AM | Comment Link

    • wemeantwell said...

      4

      Thanks. Hmmm… once upon a time I used to get paid for knowing this shit.

      08/26/15 9:18 AM | Comment Link

    • Kyzl Orda said...

      5

      Thank you, Peter. It’s a confusing issue, excellently clarified and laid out above

      08/26/15 9:55 AM | Comment Link

    • Bruce said...

      6

      “Nothing to see here”? Definitely blinding to be buried under burgeoning anchors (aren’t they so0O CUTE in red, white and blue bunting, RAYGUN?)!

      08/26/15 10:01 AM | Comment Link

    • wemeantwell said...

      7

      I am not being clear. I am not taking, for now here in this piece, a position on anchor babies and immigration. I am explaining, trying to explain, how the law works and why we have birth tourism in the US. Our govt has made a number of decisions, starting with a Constitutional amendment in the 19th century, that have ended us up where we are. The issue is not new. We had birth tourism going on from Taiwan in 1989 when I started my visa work there.

      I wrote this because both the candidates and especially the dumb ass media seem not to known the details of this whole thing.

      Any candidate who wants to change things has to change a lot of things. Those changes seem impossible to achieve, hence the “nothing” remark.

      08/26/15 10:07 AM | Comment Link

    • John Poole said...

      8

      Peter- you are free of bureaucratic protocol. Your pension cannot be recalled. Unless you are positioning to run for political office in the Chinatown section of Frisco you are free to express personal opinions. Ah, what the hell, let it ride.

      08/26/15 10:15 AM | Comment Link

    • wemeantwell said...

      9

      Who leaked that I am running for mayor of Chinatown, Jake? None the less, it’s information first, then maybe some opinion.

      The short version is that our immigration system is fully out of control. It does nothing good. If we want more, smarter, immigrants, we don’t get them, except by accident. If we want fewer low-level immigrants, we don’t stop them. Our laws are a mish-mash of conflicting goals, extending back into the 1800s, with no attempt to reconcile them. We simply just add new layers on top of old.

      Meanwhile, the agencies charged with dealing with immigration cannot themselves decide what their job is. Prevent illegal immigration? Issue tons of visas no matter what to promote American tourism and flood in cheap labor? Stop terrorism with expensive and silly ineffectual programs?

      (Answer: None of the above)

      08/26/15 11:23 AM | Comment Link

    • Bruce said...

      10

      I’ll settle for effective federal Public SERVANTS devoted to their duty to PREVENT Illegal immigration, and to encourage the FREEDOM of LEGAL immigration. Repatriation for ALL the rest; particularly expatriation of US’ terrists Poppy Bush and his spawn, prexy Cheney and Company proxies Billary and DingleBarry to Paraguay, Qatar, Columbia and Kenya, respectively.

      08/26/15 3:17 PM | Comment Link

    • John Poole said...

      11

      Trump might be tapping into the anger and disgust at this government’s utter failure at keeping illegal immigrants from making a mockery of those who go through the legal channels. Add to this the government’s argument that undocumented workers should be allowed to apply for a driver’s license. So once you are driving as an UW do you register your car to your home country of say Guatemala to get an insurance break? I’d like to think it can’t get any goofier but I know better.

      08/26/15 6:21 PM | Comment Link

    • Victoria said...

      12

      Perhaps the detractors of “anchor babies” would be placated by the simple fact that these are future US TAXPAYERS.

      The US has a unique system of taxation that is citizenship-based (not residence-based). So when these “anchor babies” grown up in China or anywhere else in the world and they start working in China (or elsewhere) they will be required to file 1040s, Fincen 114 (and a host of other forms) and depending on how successful they are they will probably owe US taxes on the money they will earn anywhere outside the United States.

      Furthermore recent information exchange agreements with other countries around the world means that these US citizens will be automatically reported to the US IRS by their local banks in China (and elsewhere). And they will be very VERY easy to find because of their US birthplace.

      So.

      “Anchor babies” could be a pretty good deal for the US. These children go back to the home country with their parents where they are raised and educated at no cost to the United States. But once they begin to work ANYWHERE in the world – even if they never set one foot inside the US in their entire lives – they will still be subject to US taxation wherever they live and work.

      08/27/15 3:14 AM | Comment Link

    • John Poole said...

      13

      That little anchor baby girl with the flag looks so dear- no one could turn her away. Somehow I see her as contributing mightily to this goofy country.

      08/27/15 8:02 AM | Comment Link

    • Anchor babies, birth tourism and China | Phil Ebersole's Blog said...

      14

      […] ‘Anchor Babies’ and the Law by Peter Van Buren for We Meant Well. […]

      08/27/15 8:03 AM | Comment Link

    • Susanna said...

      15

      I’m guessing many of these wealthy mothers coming from countries such as China are also looking for a safe place to have their baby. Speaking from experience, our hospitals are known to be pretty good. And there is the added plus that their children can someday attend our pretty good secondary (boarding) schools and perhaps even go on to university here as US citizens, not expensive F-1 students.

      08/27/15 1:07 PM | Comment Link

    • Linda J said...

      16

      No human is illegal. Once you cross that red line, you end up with 71 desiccated bodies in a truck in Poland.

      Or hundreds of bodies strewn across a desert lying halfway between Mexico and U.S.

      08/29/15 12:40 AM | Comment Link

    • Jeff Tunis said...

      17

      hello and well explained peter. despite jeb bush’s lame attempt to deflect, i guess that public frustration is really more against anchor babies in the south american context. i suspect that many of their moms dont return home after the birth, they and more family members remain here without status, and seek many more public benefits for everyone. my experience is that asian moms are more akin to medical tourists, paying cash to seek a safe, healthy place to deliver, with a u.s. passport as a fringe benefit down the road when the child seeks to enter university. if any laws need to be changed, we should not permit out of status non citizen kids to attend school, and block welfare payments to all non citizens, non lprs (before 5 yrs lawful residency), even mothers of amcit anchor babies.

      09/9/15 11:27 AM | Comment Link

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