• Explainer: ‘Anchor Babies’ and the Law

    August 26, 2015 // 17 Comments »

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    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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