Should Native-Born Children Get US Immigration / INS and Birthright Citizenship?
This hub poses an intellectual question for debate on the topic of US Immigration, namely: should there be any exceptions to the rule that a citizen is 1) born within US borders, or 2) naturalized?
Specifically, should there be any circumstances where someone is born within US borders but is NOT considered a citizen? Currently, one can only be stripped of US citizenship in two ways: a) renounce their US citizenship, usually by naturalization into another country's citizenship, or b) be convicted of immigration fraud, obtaining citizenship through fraud.
I am fully aware this was the way it always WAS done, but I am sure founding fathers did not have "illegal immigration" in mind when those rules were drafted.
Relevance to Today
I was watching some news coverage of the May Day parade, and some protesters claim that they are US citizens, but they have friends, parents, relatives, etc. who are illegal, and the new AZ law will break apart families and cause many undue hardships.
I wonder if they are aware of the 7-year rule, where the Attorney General can exempt certain illegal immigrants from being deported, if they have spent more than 7-years in the US and generally had been a good citizen?
And why should the US immigration system reward cheaters, who did not follow the law, got in illegally, and enjoy special consideration just because s/he has a child born here?
It is a tough subject to crack.
It also reminded me of the Nada Prouty case.
Who is Nada Prouty, you ask? Nada Prouty was on 60 Minutes a while back. She was originally from Lebanon, eventually joined the FBI and later, CIA, and was investigator on most terrorism cases, both domestic and aboard. She had served the US with distinction for over a decade both as investigator and interrogator, sometimes undercover in hostile countries, including Iraq and Afghanistan. Her life went crashing down when one of her brother-in-law was seen in the company of a radical Islamic cleric, and she was investigated by the FBI. Even though FBI was not able to convict her of any crime, they forced her to confess to minor charges, then took away her citizenship because it was obtained through a "sham marriage". Apparently all her years of service was for nothing. In fact, she was to be deported to Lebanon until a Federal judge blocked the deportation, with sharp criticism of FBI, who actually gave medals to the investigators of this case, even though there never was proof of any leak from Prouty.
Which got me thinking: if a veteran of the War on Terror, who had put her life (and life of her unborn child, really) on the line for our country can get her citizenship taken away for past sins, while children can earn citizenship simply by being born across an arbitrary line, and that can never been taken away (except through treason), is there something wrong with the system?
Are US-born children of illegal immigrants citizens?
It may be surprising to some, but the answer is: probably, NOT a definite yes.
The 14th Amendment, which defined citizenship, did not define any difference between children of legal or illegal immigrants. A later ruling, US vs. Wang Kim Ark, by the Supreme Court, stated that US born children of foreign citizens, but legal residents of the US, are indeed US citizens. Supreme Court had never stated that children of illegal immigrants are US citizens, but it is generally assumed to be so, based on INS v. Rios-Pineda
In INS v. Rios-Pineda, husband and wife entered US illegally, husband was caught, and was released after he volunteered to leave. However, he never left, so INS initiated deportation proceedings. He was able to file appeal after appeal, and during that time a child was born, and eventually they chose to appeal on the basis that INS should re-review their case because they have spent over 7-years in the US and thus is eligible for special consideration by attorney general, as deporting him would cause undue hardship on his child. Attorney general denied request because the case started long before the child was born. The case eventually reached the Supreme Court, who ruled for INS. In the decision, the court had basically assumed the child, born in the US to illegal immigrant parents, to be a US citizen. It is considered "dicta", or incidental "remark", not a ruling.
Citizenship by Birthright
The definition of citizenship is given in the 14th Amendment of the US Constitution, passed during the reformation after the Civil War. It granted citizenship to all African-Americans (most ex-slaves). It basically defined that with a few exceptions, all children born in the US are US citizens.
One significant clarification to 14th Amendment was the case US vs. Wong Kim Ark, where the Supreme Court ruled that native-born children of legal residents (but foreign citizens) of the US are US citizens.
What is interesting to note is that it was never clearly defined whether children born in the United States, to illegal immigrant parents, are US citizens or not. Supreme Court have NEVER ruled on this issue, and Congress have NEVER passed a law on this topic. However, it is simply "assumed" that they are.
There were a few cases where the court had simply remarked, but NOT RULED, that the Constitution had not made such a distinction, thus the normal definition is "inclusive", i.e. the legal immigration status of the parents at the time of birth is of no relevance. However, there were no formal rulings, so the issue is still up in the air. (see sidebar)
And it is debatable whether Congress have the right to pass laws defining any such exceptions. The Heritage Foundation maintains that Congress does have such authority to stop children of illegal immigrants from being citizens, but again, this is debatable, as it would depend on interpretation of the intent of the lawmakers who wrote the 14th Amendment, and how those interpretations would stand today.
CLARIFICATION: In my own opinion, citizenship by "birthright" is actually not a part of the birth itself, but is rather, inherited from one or both of child's parents. In fact, this inheritance is specifically recognized by current immigration laws. Thus, I believe if the parents are not legal immigrant or citizen, then the child should not be automatically granted citizenship, because there was nothing to be "inherited". I believe the 14th Amendment was a specific case granted to provide citizenship to emancipated slaves, and the part about "native born" was never meant to apply to children of illegal immigrants.
Read the 14th Amendment Closely
So what does the 14th Amendment actually say?
"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."
But what does "subject to the jurisdiction thereof" actually mean? Most arguers ignore this part. Yet consider what attorney general in 1873 said about it...
"The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."
In other words, aliens do NOT enjoy full rights, even those born here. How limited are their rights... would be defined by later courts and congress sessions.
Or put the question in another way... If you violated immigration laws, can you really be considered to have been "subject to jurisdiction" of the United States? And if you are NOT a legal resident of the US, are your children actually subject to 14th Amendment citizenship? That is very much in doubt.
What about Plyler vs. Doe (1982)?
Some have asked what about the case Plyler vs. Doe (1982) out of Texas? Doesn't it say that illegal immigrant children are also protected under 14th Amendment?
Not quite... while Plyler vs. Doe case is about the citizenship clause, but the reasoning behind it was actually more about equality. Plaintiff, the Texas Dept of Education, maintained that "education is not a fundamental right", and thus, illegal immigrant's children are not entitled to it. Chief justice, Warren Burger, ruled against the state because he believes that viewpoint is not rational.
In other words, the only thing you should take away from this decision is that education, even to illegal immigrant's children, is guaranteed. So it is actually more of an "equal rights" or "equal protection" ruling than "citizenship ruling".
Or in other words, if John can go to school, and Sally can go to school, it does NOT mean Sally is John. If children of legal resident can go to school, and children of illegal immigrants can go to school, it does NOT mean legal residents are illegal immigrants (or vice versa).
Furthermore, in INS. vs Rios-Pineda (1985), as cited earlier, the ruling is a 'dicta', or assumption. It did not explicitly rule that children of illegal immigrants are actually citizens, even if they are born in the US.
(For more legal thoughts on Plyler vs. Doe, see University of California Berkeley's Law School analysis)
As long as entering illegally is not penalized enough, people will opt for the illegal route instead of the legal route. It is a simple matter of relative risk.
On the other hand, illegal immigrants *do* contribute to the economy and can be good citizens.
And one of the fastest ways to citizenship is through military service. There is virtually no wait in line. The system recognizes that if you are willing to put your life on the line, you definitely deserve citizenship.
So what if we combine the aspects.... to a new system?
1) Establish system of "provisional residency", which essentially established five types of people in the US: visitors, provisional residents, permanent residents, citizens, and illegals. Provisional residency will last several years (5-7?) upon which they can be switched to permanent residency.
Why another class? The current system does not account for "part-time" or provisional residents. Essentially, provisional residents are "on parole". US has not decided whether to let you stay permanently or not, so a provisional stay is granted, subject to revocation.
EDIT: I was surprised when I read through the USCIS website that there is ALREADY a "conditional permanent residency" system. Basically, it is a 2-year provisional period, cannot be extended. The "green-card" is only valid for 2 years, and cannot be renewed. You either get converted to the full permanent residency, or it's bye-bye America. So apparently, the laws are already in the books, just rarely used or enforced.
2) Take away the automatic assumption that all native born children are citizens. As their parents are in the US illegally, they should not be citizens. However, they are given permanent resident status, with automatic citizenship upon turning 18. And their illegal immigrant parents are given PROVISIONAL RESIDENT status, provided they can prove they have been here and been good citizens. Else, the child can apply for their parents to come over upon turning 18.
While a children should not be punished for their parent's sins, the parents should not benefit from children's birthright either. By making the children permanent resident, with automatic citizenship upon turning 18, the parents cannot use the citizenship of their children as bargaining chip, while not taking away too many rights of the child.
3) There needs to be some sort of a penalty for provisional residents. Maybe extra 50% tax, or required to contribute to Social Security but contributions do NOT count toward their own social security eligibility, or not eligible for local aid, or something that is significant.
Why? It must be enough of the penalty to make sure they know they *are* being evaluated, but not so much that they feel it is completely unfair.The details can be worked out later. Social security and Medicare deduction may be a good idea. Most "illegals" already pay it if they are employed using false ID, but they don't enjoy the benefits any way.
4) Offer "fast track" to permanent residency and citizenship through civil or military service.
We already do this, but not for civil service, and we need to offer an alternative for those who want a more... peaceful pursuit. Government service, Peace Corp, and others are all possibilities.
This system is just an idea, not fleshed out. There are bound to be many holes, and logical discussions are welcome. Any rant comments will NOT be accepted.