Lawmakers Move to Deny Citizenship to US-Born Children of Undocumented Immigrants

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If a small but vocal group of state and congressional lawmakers have their way, being born in the United States will no longer guarantee American citizenship. These legislators want to require that parents prove that they are in the US legally before their American-born children will be issued birth certificates. 

While proponents haven't been able to gain much support for their proposal nationally, they have re-opened an issue that hasn't been debated since the ratification of the 14th Amendment to the US Constitution after the Civil War. That amendment, which extended citizenship rights to former slaves and their progeny, reads, in part:

 "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Despite this unequivocal language, Rep. Elton Gallegly, (R-CA) a self-described "illegal immigration hawk," submitted a HR 126 in Jan. 2009.  If passed, citizenship by birth would be restricted to children whose mothers can prove legal residency. The measure has languished in committee and is likely to die there given the current leadership in Congress and the White House.

State legislators in Arizona, Texas and Oklahoma have proposed measures that would refuse to recognize the citizenship of American-born children of undocumented immigrants, known as "anchor babies." According to a story published this week by National Public Radio, Oklahoma's Randy Terrill and Leo Berman of Texas, hope their bills will touch off a federal court fight. 

Meanwhile, Russell Pearce, the man behind SB1070, Arizona's recently passed law authorizing police to demand proof of legal residency from anyone they think might be in the US illegally, is reportedly planning to introduce a bill revoking citizenship by birthright in his state. Writing about the proposal for Racewire, Seth Fred Wheeler said, "Few thought SB 1070 could actually become law. Now it has. Let it stop there." 

According to the NPR story, Berman said, "I believe we are giving away 350,000 citizens a year to children born to illegal aliens."  The anti-immigrant advocacy group FAIR (Federation for American Immigration Reform) puts the number closer to 425,000.Despite these estimates, hard numbers are scarce on just how many American-born children of undocumented immigrants are in the United States. A January, 2009 report from the US Office of Inspector General estimates that between 1998 and 2007, 108,434 undocumented immigrant parents were deported, out of more than 2,000,000 deportations of illegal immigrants for that period. However, a lack of uniformity in the data collection procedures, as well as outdated technology, make it impossible to know how many minor children were affected by these deportations. The report does say that there is no record of US-born minors being deported.

Children Attend Citizenship Ceremony In Virginia

Gallegly, Terrill and Berman have engendered a discussion that hearkens back to the late 19th century. The ratification of the 14th Amendment in 1868, and decades of case law and subsequent Congressional acts, affirm the principle that people born in the 50 United States, its territories, and over its airspace are American citizens, with few exceptions. The exceptions have to do with rare instances such as children born to foreign diplomats stationed in the US. FAIR contends that the phrase "subject to the jurisdiction thereof" in the 14th amendment supplies the constitutional basis for both those exceptions and the denial of birth certificates to the children of illegal immigrants. However, it's not even clear that Gallegly and his co-sponsor John Duncan (R-TN) are committed to their proposal. Gallegly's web page and this video from Duncan both include statements that new immigration laws are unnecessary. 

For Terrill and Berman, however, the battle against citizenship by birth is just another notch in careers built on opposition to illegal immigration. According to this  May 10 article in the Wall Street Journal, since 2006 Terrill has pushed laws to deny driver's licenses and most social service benefits to undocumented persons in the state, among other measures. Berman, similarly, has been proposing anti-immigrant measures in what Molly Ivins used to call the "Texas Lege" for years, including a bill barring US-born children of illegal immigrants from public schools, and a forthcoming proposal similar to Arizona's SB1070. As Eileen Smith at Texas Monthly mockingly noted in April,

I can only imagine that Leo was inspired by the weekend’s Glenn Beck event held in Tyler, where he told the crowd that Obama is “God’s punishment on us.” Wait a minute. I thought the immigrants were God’s punishment. WHY DOES GOD HATE US SO MUCH?

As a practical matter, if such a bill were to become law, what would it mean? India is an example of a country that limited citizenship by birth in response to illegal Muslim immigration. According to Indian law, children born in India after 2004 can be denied citizenship if one of the parents is considered an "illegal migrant." Where, then, do such children go? They are not necessarily children of their parents' countries. Do they become stateless? 

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Kim Pearson
BlogHer Contributing Editor|KimPearson.net|

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