Birthright Tourism 101
Trump wants to stop birthright citizenship through executive order. But this would almost immediately be challenged in court. Therefore he will likely turn to creating a rule that restricts non-immigrant visa issuance based on possible manipulation of birthright citizenship. I have my own strategy on how to curtail birthright tourism which will be explained in my forthcoming book #ProAmericanImmigration. I'll be interested to see how my strategy complements, or differs from, Trump's new rule.
The Trump administration plans to move forward with a new rule that helps prevents “birthright tourism.” This is when pregnant women travel to the U.S. under touristic pretenses to give birth to their baby and take advantage of birthright citizenship. The baby is automatically granted American citizen just by being born in America.
A State Department official said, "This change is intended to address the national security and law enforcement risks associated with birth tourism.” There is little doubt that this new rule will be heavily debated in the media in the coming weeks and probably challenged in court. So I will share some ideas on birthright citizenship to get you up to speed on the issue.
Where were you born?
When I was growing up I thought it was natural that you became a citizen where you were born. I was born in Egypt so I was an Egyptian citizen at birth. My brother was born in America so he was an American citizen at birth. I later learned there is a distinction.
I was born an Egyptian citizen because I was the child of Egyptian parents and not because I was born in Egypt. Being born in Egypt did not make me an Egyptian citizen. My brother was born an American citizen because he was born in the United States. Being born in America made him an American citizen.
America is a very special in offering birthright citizenship. There are only 30 countries in the world that offer this privilege. Of the top ten economies in the world only the United States, Brazil and Canada offer birthright citizenship. Children born to foreign parents in China, France, Germany, India, and the United Kingdom do not become citizens of those countries. If you were born in France or Germany and asked for birthright citizenship you would likely be laughed at.
There are only 30 countries in the world that offer birthright citizenship. If you were born in France or Germany and asked for birthright citizenship you would likely be laughed at.
Birthright Citizenship’s Legacy in Slavery
Birthright citizenship was introduced in 1868 under the 14th Amendment to the U.S Constitution. The 14th Amendment states that, “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.” This means that if a person is born in the U.S. and is governed by local U.S. laws then he or she is an American citizen at birth.
The intent of the 14th Amendment was to ensure full citizenship to former slaves and their children. It prevented individual states from writing new laws depriving them of their rights. It overrode the Dred Scott v. Sandford decision by the Supreme Court that forbade African-Americans from ever gaining citizenship.
The intent of the 14th Amendment was to ensure full citizenship to former slaves and their children.
Not everyone born in America is American
The phrase "subject to the jurisdiction thereof" is important. It was intended to exclude from automatic citizenship American-born people who did not have allegiance to the United States. For example, for decades Native American Indians were excluded from American citizenship. This was because of their tribal jurisdiction. Native American Indians were seen as governed by their tribal jurisdiction. They did not fall under United States jurisdiction. It took decades of legal battles to make citizenship a reality for them.
Babies born to foreign diplomats serving in America are excluded from birthright citizenship. This is because foreign diplomats have diplomatic immunity. Diplomatic immunity excludes diplomats from being subject to local jurisdiction. This means that foreign diplomats are not subject to lawsuit or prosecution under U.S. laws. So a British diplomat who has worked in the United States for years would not receive citizenship for their child. However a woman who illegally entered America for a few and gave birth would receive American citizenship for her child.
Babies born to foreign diplomats serving in America are excluded from birthright citizenship since foreign diplomats are not subject to lawsuit or prosecution under U.S. laws.
Today when we talk about women who want to come to America to give birth we usually think of illegal immigrants. We imagine mothers taking painful journeys. Coyotes smuggle them into the United States. They give birth in the U.S. under horrifying circumstances. The newborn child automatically becomes an American citizen. The parents use the babies to remain in the United States. This is why these kids are sometimes referred to as “anchor babies.”
The issue of American-born children of illegal immigrants is an important. It needs attention. But it is estimated that there are between 30,000 – 40,000 women who legally enter the United States to give birth to their children. They come through airports with legal documentation to enter the country.
These women enter America for tourism “purposes” and give birth. After having their child they leave the United States as required. They leave with their new American citizen child. Our current policy does not prohibit pregnant women from traveling to America. Our policy also does not prevent women from giving birth in America. Let’s look at how it is legally possible for women to travel to America to give birth.
These women enter America for tourism “purposes” and give birth. After having their child they leave the United States as required.
Most people that come to America on temporary visits do so on tourist visas (B visa). The tourist visa may be used for short-term visits to the U.S. for business, medical, and tourism purposes. These visas are issued at U.S. consulates abroad. A foreign woman may apply for a tourist visa to have medical treatment. The same visa can be used to give birth in America.
The applicant must provide a medical diagnosis from a local physician. It should explain the reason for the treatment in the United States. The applicant also needs a letter from a physician or medical facility in the United States. It should express a willingness to treat this specific ailment. This includes the projected length of time and cost of the treatment. The applicant also has to provide evidence of their ability to pay for the treatment. The consular officer will review all these items. It is up to the consular officer to determine if the applicant qualifies for the visa under U.S. law.
Some women can also travel to the U.S. without a visa. There are 38 nationalities around the world that qualify for the Visa Waiver Program (VWP). The program allows most citizens of VWP countries to travel to the United States for touristic visits for up to 90 days. They don't need a visa from a U.S. Consulate. Travelers must meet certain requirements. They must have an electronic passport and meet passport validity requirements. They must also not be associated with countries listed under the Terrorist Travel Prevention Act.
By meeting these requirements they can travel to the U.S. using the Electronic System for Travel Authorization (ESTA) system. The traveler only needs a valid passport and a valid credit card to pay the $14 fee. They can fill out the ESTA application online. There is no interview with a consular officer. With an approved ESTA they can travel to the U.S. for up to 90 days for business, tourism, or medical purposes. Once in the U.S. they can potentially give birth.
Stopping birthright citizenship
Trump has long wanted to end birthright citizenship in America. The most effective way to do this would be to amend the Constitution to end birthright citizenship. Another option is for the Supreme Court to clarify if foreign nationals, such as people here on visas or illegally, fall under U.S. jurisdiction. If they do not then their children born in America would not qualify for birthright citizenship – like the children of diplomats. I do not see either of these things happening in the near term for this administration.
As an alternative Trump has said that he wants to stop birthright citizenship through executive order. However this would almost immediately be challenged in court. Therefore he will likely turn to creating a rule that restricts non-immigrant visa issuance based on possible manipulation of birthright citizenship.
I have my own strategy on how to curtail birthright tourism which will be explained in my forthcoming book #ProAmericanImmigration. I'll be interested to see how my strategy complements, or differs from, Trump's new rule. But that is for another time.
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