House committee takes up birthright citizenship issue

Feere stated, ‘Some clarity from Congress would be helpful in resolving this ongoing debate’

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WASHINGTON – John Feere, legal policy analyst with the Center for Immigration Studies, testified before the U.S. House of Representatives Committee on the Judiciary Subcommittee on Immigration and Border Security last week on the issue of birthright citizenship.

The hearing was titled “Birthright Citizenship: Is it the Right Policy for America?”

illegal signHe stated 350,000 to 400,000 children are born to illegal immigrants in the United States every year. In other words, as many as one in 10 births in the United States are now to an illegal immigrant mother.

According to Feere, the executive branch automatically recognizes these children as U.S. citizens, regardless of the foreign citizenship and illegal status of the parent, and provides them with Social Security numbers and U.S. passports.

The executive branch also recognizes the children born to tourists and other aliens present in a legal but temporary status in the United States as U.S. citizens.

Feere said it is unlikely Congress intended such a broad application of the 14th Amendment’s Citizenship Clause and noted the U.S. Supreme Court has only held that children born to citizens or permanently domiciled immigrants must be considered U.S. citizens at birth.

Feere stated, “Some clarity from Congress would be helpful in resolving this ongoing debate.”

The practice of granting universal, automatic “birthright citizenship” without regard to the duration or legality of the mother’s presence has gained increased attention.

He said the mass influx of illegal immigration to this country over the past few decades has raised the question of whether Congress intended the 14th Amendment’s Citizenship Clause to turn children of illegal aliens into U.S. citizens at birth.

Although the population of U.S.-born children with illegal alien parents has expanded rapidly from 2.7 million in 2003 to 4.5 million by 2010, the immigration enforcement priorities of the Obama administration has deemed illegal aliens who give birth in the United States low priorities for deportation, while the president’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program provides them with benefits and allows them to “stay in the U.S. without fear of deportation.”

Feere stated it is the broad interpretation of the Citizenship Clause that forms the basis for these policies.

Then there is the issue of chain migration, whereas children born to illegal aliens in the United States, once they turn 18, can sponsor an overseas spouse and unmarried children.

Upon turning 21, they can sponsor their parents and siblings.

According to Feere, family-sponsored immigration accounts for the majority, approximately two thirds, of our immigration flow.

The number increases every year because of the ever-expanding migration chains that operate independently of any economic downturns or labor needs.

While birthright citizenship is not the only contributor to chain migration, Feere testified ending it would curtail some of that explosive growth.

Third, Feere testified that the phenomenon of affordable international travel and tourism has increased the opportunities for non-citizens to give birth in this country and pointed out in 2013 there were 173 million nonimmigrant admissions to the United States, including people entering for tourism, business travel and other reasons.

However there are also some who enter to engage in “birth tourism,” the practice of people around the world traveling to the United States to give birth for the sole purpose of adding a U.S. passport holder to the family, despite misrepresenting the true intention of their visit.

Feere also calls attention to the issue of taxpayer-subsidized benefits.

While illegal aliens are not eligible to obtain welfare benefits, they can obtain benefits such as Medicaid and food stamps on behalf of their U.S.-born children.

Feere said 71 percent of illegal-alien headed households with children currently make use of at least one major welfare program.

That number rises to 79 percent when the head of the household is from Mexico.

By contrast, households with children headed by a native-born American citizen, 38.7 percent use at least one major welfare program.

There has been much debate over the years as to who should be considered “subject to the jurisdiction” of the United States and even Sen. Harry Reid, D-Nev., introduced legislation in 1993 to limit birthright citizenship to children of U.S. citizens and legal resident aliens.

Numerous similar bills have been introduced by other legislators since that time.

Only 30 of the world’s 194 countries grant automatic citizenship to children born to illegal aliens and, of advance economies, only Canada and the United States continue to do so.

Feere said the global trend is moving away from automatic birthright citizenship and countries that once had such policies have ended them in recent decades, including the United Kingdom (1983), India (1987), Malta (1989), Ireland (2004), New Zealand (2006) and the Dominican Republic (2010).

Other countries considering ending the policy of birthright citizenship include Barbados, Antigua and Barbuda.

Mexico has a unique policy which grants automatic nationality, but not citizenship, to anyone born in Mexico, including children born to Mexican citizens.

Mexicans acquires citizenship once they attain the age of 18.

Even though Mexico may grant citizenship to children born to illegal aliens, Feere said, “[T]he nation’s constitution clearly imputes a second-class status on children of immigrants.”

Feere stated a constitutional amendment would probably be necessary if the 14th Amendment’s Citizenship Clause clearly directed citizenship be granted to children of temporary aliens.

However, he doubts Congress intended children of tourists or illegal aliens be included within the scope of the Citizenship Clause.

Because of the Obama administration’s immigration enforcement priorities, a person in the country illegally who has a U.S. citizen child is not a high priority for deportation unless he commits a violent crime.

So, illegal aliens who overstay their visas and give birth on American soil feel free to ignore the parameters of their original visa and have a high level of confidence they will not be deported.

Feere stated, “What irks Americans about this situation is that birth tourists are effectively taking control over U.S. immigration and citizenship policy by turning a grant of temporary admission into a permanent stay. The practice of granting automatic birthright citizenship allows a seemingly temporary admission of one foreign visitor to result in a permanent increase in immigration and grants of citizenship that were not necessarily contemplated or welcomed by the American public.”

He said the birth tourism industry illustrates how the executive branch’s broad application of the Citizenship Clause can effectively transfer control over the nation’s immigration policy from the American people to foreigners.

Feere pointed out there are statutes that could be used to go after birth tourists as he discussed the investigation into a birth tourism organization recently busted in California, which revealed evidence of tax evasion, false tax returns and willful failure to report foreign bank accounts.

Feere also raised the specter of children born in this country to foreign diplomats being specifically excluded from being granted automatic birthright citizenship.

Since 1995, the State Department’s guidelines stated: “Under international law, diplomatic agents are immune from the criminal jurisdiction of the receiving state. Diplomatic agents are also immune, with limited exception, from the civil and administrative jurisdiction of the state. The immunities of diplomatic agents extend to the members of their family forming part of their household. For this reason children born in the United States to diplomats to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it.”

However, Feere learned the government doesn’t seem to have any means of precluding those children from being issued a U.S. birth certificate and validly-issued Social Security number.

And, despite the clarity of this guideline, the Obama administration has been developing new rules on the issue of children born to foreign diplomats. The most recent Foreign Affairs Manual has eliminated the language above and replaced it with a promise of new guidelines.

Appendix J, which addresses “Children of Foreign Diplomats” states it is under development and will provide extensive guidance on the issue of children born in the United States to parents serving as foreign diplomats, consuls, or administrative and technical staff accredited to the United States, the United Nations, and specific international organizations, and whether such children are born “subject to the jurisdiction of the United States.”

The State Department indicated it planned to publish the changes by the end of 2011.

However, Feere stated, “[I]t appears as if the appendix was never created or at least never made available to the public.”

Southern Poverty Law Center President Richard Cohen, who also testified, said the Citizenship Clause of the 14th Amendment “was intended to put the issue of birthright citizenship beyond the reach of congressional legislation.”

Cohen stated, “Birthright citizenship is a core constitutional value enshrined in the first sentence of the Fourteenth Amendment. With the exception of children of diplomats, members of Indian tribes, and hostile enemy occupiers, the birthright citizenship clause provides that all children born in this country are citizens, entitled to the full blessings of our democracy. The immigration status of their parents is simply irrelevant.” 

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