The Dynamics of U.S. Birthright

Immigration is the topic du jour yet again today and I wanted to share some thoughts.  This morning's Miami Herald blasts several Republicans who are proposing the elimination of the 14th Amendment to the U.S. Constitution, which grants U.S. citizenship to anyone born in the U.S.  Meanwhile, on the front page of today's Wall Street Journal, is an equally volatile headline: "Illegal Immigrants Estimated to Account for 1 in 12 U.S. Births".

Both articles make good points about each issue: the Herald points out that such a change would be radical departure from the American concept of inclusiveness.  The WSJ, in turn, tells us that undocumented immigrants make up slightly more than 4% of the U.S. adult
population. However, their babies represented twice that share, or 8%,
of all births on U.S. soil. Of these, 85% of births are to Hispanic parents illegally in the U.S.

As an immigration attorney, I am always wary of "reforms" which target specific groups within our population.  That being said, as a former U.S. consular officer who served in Ciudad Juarez when it was the busiest immigrant visa post in the world, I also have a difficult time ignoring realities I have experienced first hand.  Take me comments for what they are – one person's experienced-based observations – and no more:

  • The Herald editorial state "The immigrants who have babies here do not come to give birth. They come for jobs."  I just had a lively discussion on this very subject with Melissa, who agrees with that assertion.  Well, I disagree.  When I worked as both a visa officer and U.S. citizen services officer in Mexico, I personally interviewed thousands of Mexican nationals and their U.S. born children.  Virtually all of them volunteered, as I registered the child's U.S. birth or, more often, issued IR-5 immediate relative visas for the parents of a U.S. citizen, that the consular event in which they were participating was a planned event designed for the dual purposes of establishing a migration path for the family and to give the child the privileges associated with U.S. citizenship.  Except for a tiny percentage of affluent Mexicans working legally in the U.S., the vast majority of the births occurred in U.S. hospitals and the uninsured parents did not bear the costs associated with the delivery and aftercare.  So, no, they don't just "come for jobs", and if you think I'm wrong, go take a look at the Mexican wait times in the family preference categories and explain THAT to me.
  • The 14th Amendment and a U.S. birthright is and was another noble fine tuning of the best Constitution on earth and its purpose was laudable.  However, this notion that removing such birthright reverts the U.S. to the Dark Ages is historically wrong: many modern countries still have laws which convey the citizenship of the PARENTS to the child born in country; such has and is the case with persons in diplomatic status. Jus Sanguinis vs. Jus Soli is too complex for here but, basically, the notion that a child acquires the citizenship of her parents wherever she is born is very old and pragmatic.  (If you want to see more on this, go Wiki's Explanation of Jus Sanguinis and Jus Soli ).

So, you see, things aren't as simple as they seem.  When the child of foreign parents is born in the U.S., he or she acquires not one but TWO nationalities: U.S. (by virtue of the 14th amendment) and their parents' (by virtue of jus sanguinis, in every nationality I have ever encountered.  The implications of the Herald editorial is that the child would somehow be "stateless" if he or she is denied U.S. citizenship at birth.  In reality, he or she acquires the nationality of the parents…just not BOTH. And I can tell you from my deep love of the Constitution and the years I've poured over it, the 14th Amendment was not enacted for the purpose of insuring dual nationality.

One thing is for sure: the WSJ article and underlying study is going to create a huge public backlash, and I understand that.  In 1991, when my younger son Danny was born at Baptist Hospital right here in Miami, I nearly fainted when I was charged $20 for an extra box of Kleenex for Leah.  Unable to keep my big mouth shut, I complained loudly, and that in turn led to an extraordinary meeting with Baptist's financial folks. Back then, they explained to me that about half of the births at this beautiful maternity ward were the births of children of illegal aliens.  HOW? I asked.  The answer: the parents knew about Baptist's private maternity suites and top notch care and they would sit outside the emergency room until the baby's head was crowning.  When that happened, the ER HAD to admit the mother and the childbirth and aftercare was funded totally by Baptist, since neither federal nor state funds reimbursed them.

I'm not sure it's time to change the 14th Amendment but, unlike Melissa, I don't think the building of an impenetrable, Berlin-Wall-type southern border is even possible.  And from what I've seen in the last two and a half decades of this immigration business, I disagree with the Herald: people come to America for a LOT more reasons than to get a job.  Ellis Island wasn't a staffing agency, nor is our southern border.

And I'm STILL mad about the $20 box of Kleenex…(-;

Wall Street Journal Today on Illegal Immigrant Births in U.S.

Miami Herald Op Ed re 14th Amendment