Immigration and firm news

Anchor Babies and the 14th Amendment – Immigration Myths Part I

1139432_nautical_stripes_and_anchors.jpgAnchor Babies – The Myth

“Anchor Baby” is a derogatory term and a figment of imagination. Anchor for what? Nativists believe that immigrants come to the US to “drop babies” so they can bestow an immigration benefit upon the parents. This is pure nonsense and not the law or fact! There are no immigration categories in our present system that allow a U.S. born child under 21 to sponsor his or her parents! Under current law, whether the parents entered legally or illegally, they will have to wait at least 21 years for a green card if sponsored by the U.S. citizen child. Similarly, a U.S. citizen cannot sponsor a sibling until the citizen is 21 years old.

How Many U.S. Citizen Babies are Born to Immigrants in the U.S.?

An August 11, 2010 Pew Hispanic Center study, “Unauthorized Immigrants and Their U.S.- Born Children”, reports that only 8% of children born in the U.S. in the year 2008, or 340,000 of 4.3 million babies, had at least one parent without documents, while 16% of U.S. citizen children born in the U.S. that year had one or more parents who are immigrants with legal documents. Overall, the Pew Hispanic Center estimates there are 4 million U.S. citizen children living in mixed status households out of 8.8 million mixed-status families in the United States.

According to a Pew Research Center for People and the Press article, “Obama’s Ratings Little Affected by Recent Turmoil”, Part 3, most of out-of-status mothers with U.S. born children have been here at least a year, and more than 50% have been here for five years or more without status. This means that most immigrants who have their babies in the U.S. do by so happenstance, not as the primary reason for coming to the U.S. The only exception may be people who live along the U.S.-Mexican border who have easier access to quality U.S. medical facilities for giving birth. A September 3, 2010 Boston Globe article, “‘Birth Tourism’ a Tiny Portion of Immigrant Babies”, mentions Demographer Douglas Massey of Princeton University who has researched Mexican immigration trends. He says he has never met anyone who came to the US specifically to have a baby here, which mirrors the experience of most immigration lawyers. This is certainly consistent with this author’s experience in immigration law.

The “anchor baby” argument, or the “birthright” movement, is intended, presumably, as a theory to reduce illegal immigration. But, if we repealed the 14th Amendment (see below) or otherwise prohibited U.S. born children from being American citizens at birth, according to a September 2010 Migration Policy Institute study, “The Demographic Impacts of Repealing Birthright Citizenship,” between 2010 and 2050, we would actually double the number of people without status from 10-12 million to 25 million because the children of those children born in the U.S. would create yet another generation of children growing up in America without status or rights.

Other Considerations of U.S. Born Children in Immigration Law

Even when the U.S. citizen child turns 21, the sponsored parent or sibling may have to wait years more to immigrate or might not be able to immigrate at all. This is because of two main factors – quota delays for siblings of U.S. citizens, and the three and ten-year bars that require many sponsored relatives who entered the U.S. illegally to complete processing of a green card at a U.S. Consulate abroad. The act of leaving the U.S. to visit the Consulate can trigger the bars to re-entry despite otherwise having a way to immigrate legally. Those who are subject to the bars must first obtain an “extreme hardship” waiver to avoid waiting the three or 10 years abroad. Waiver approvals are unpredictable. Quota delays and the three and 10-year bars are why most people without legal status in the U.S. cannot immigrate today despite having an employer or family sponsor.

Quota Delays
In the case of siblings of U.S. citizens for example, for September 2010, there is a nine-year wait for most immigrant relatives worldwide. But there is a 16-year wait for Mexicans and a 19- year wait for Filipinos. (See the 4th Preference Family Category in the September 2010 Visa Bulletin which tracks the quota every month.)

Let’s look at how the “anchor baby” theory really plays out. Suppose a 25 year-old Mexican woman comes to the U.S. illegally today in 2010 and gives birth to a U.S. citizen in a week or two (because, after all, that’s why moms have anchor babies here, right?). That baby cannot sponsor the mother (or father) until it turns 21 years old in 2031 when mom is 46. Let’s say that anchor baby has an older sibling (5 years old in 2010) who came to the U.S. illegally with mom from Mexico. Assuming 21 years from now we still don’t have immigration reform of our legal immigration system and the quota is the same for siblings, the sibling of that 21-year old U.S. born child will have to wait another 16 years to get a green card. Now the U.S.-born child is 37 years old (21+16) and the sister is 42 (5+21+16). For 21 or 37 years, can the parents and sibling get deported? Maybe yes, maybe no. Is there some “temporary” non-immigrant visa that would allow them to stay here all that time? No. Could they come and go as tourists? Maybe, maybe, not as the consulates and border patrol don’t typically trust tourists to go home if they have citizen or legal resident relatives in the U.S. Will they have any other rights to stay here while they wait 21- 37 years, or could they die first while waiting? If they don’t have papers, they will live like most people without papers today – in the shadows and possibly subject to abuses of various types. Or they can wait in Mexico for a few decades with or without the U.S. citizen child/sibling.

What if the immigrating sibling was Canadian? She would have to wait for “only” 21 years plus another 9 years to get her green card, again assuming we have the same immigration laws then. So, really, where is the “anchor” benefit here? Why would someone come here just to have a U.S. citizen child when they can’t sponsor a relative for decades? The “anchor baby” argument misses completely the myriad of reasons why people come to the U.S. and the many factors that cause illegal immigration.

Even Steven Colbert , in a satirical segment on “anchor babies”, got it right when he said the parents might be old enough for social security by the time they can lawfully immigrate through their U.S. born child. (And, they probably won’t be eligible for social security anyway.)

Bars to Reentry
Even with the 21-year wait for the “anchor baby” to become an adult, plus any quota delays for siblings, there are the bars to contend with if applicable. Many people have chosen not to be separated for three or 10 years, or have chosen not to take the risk of separation while waiting for the waiver because of the high denial rates. Consequently, the long quota and the three and 10-year bars are one of several reasons why we have such a large undocumented population who have lived in the U.S. for so many years. This segment of the population has a route to lawful immigration, but they cannot complete the processing of their cases because of the quota backlogs and/or the need for waiver applications. Extreme hardship waivers help to avoid remaining outside the U.S. for the full three or 10 years. But they are difficult to qualify for. There are also permanent bars where no waiver is available at all. In sum, these factors make the “anchor baby” idea a myth: the U.S. citizen child must be 21 years old to start the process to sponsor a relative; the quota can add more years to the initial 21 for some categories of family and immigration; the immigrating parent or sibling might need to spend another three or 10 years abroad or seek an unpredictable waiver of the bar. Lack of useful temporary visas for most people that would allow them to come and go and high denial rates of tourist visas/entry add to everyone’s troubles.

U.S. Citizen Children and Other Forms of Relief
It is true that the presence of U.S. citizen children can be a factor to consider among other factors during immigration court hearings for some grounds of relief from removal. One can only earn “cancellation of removal” upon showing “exceptional and extremely unusual hardship” to U.S. citizen or permanent resident children. This is the highest and hardest standard of proof in all of immigration law. The hardships must be severe. Even then, approved cancellation cases are capped each year to 4000. Any approvals above that turn into a quota or waiting list. Some of the waivers for grounds of inadmissibility or removal allow for consideration of the hardships to U.S. citizen children, and some waivers do not. Often the children have no bearing other than one factor to consider among other factors to show extreme hardship if the parent is deported. And, of those children that can be considered, most young U.S. citizen children are viewed by the courts to be easily adaptable to living abroad so they can be de facto deported with their immigrant parents. Otherwise, they are presumed to easily adjust to being separated from the deported parent. Every day of the week when parents are deported, their U.S. citizen children are forced to leave the only country they have known for countries they have never been to, while other children remain in the U.S. separated from their parents for years. Children who are in their teens or who have severe physical or mental disabilities are better able to “help” their parents’ cases than young children. However, other factors must also be shown besides the hardship to U.S.-born children. Again, the numbers of cancellation and waiver cases that are granted are minuscule compared to the number of people who really need the relief. And, even if the requirements are all met, they are only granted “in the exercise of discretion.”

Repealing The 14th Amendment to Prevent Anchor Baby Status

The U.S. is a “jus soli” nation, which means citizenship occurs by virtue of being born on U.S. soil or in a U.S. territory. Many countries bestow citizenship based on place of birth. Other countries bestow citizenship only by blood, race, ethnicity or religion or “jus sanguinis”. Some countries have variations of both. Our system is enshrined in the 14th Amendment to the U.S. Constitution since 1868. It states 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.” The balance of the 14th Amendment contains the due process and equal protection clauses.

Some politicians have suggested that we repeal the 14th Amendment to prevent immigrants from having “birthright” babies. But, if the child is born here with or without a visa, do we really want to add to the underclass of 10 million undocumented people we already have, who may live their entire lives from birth to death with no status or rights at all? And then have the next generation born here suffer the same fate? In fact, recent polling by the Pew Research Center shows most Americans are opposed to repealing the 14th Amendment, and most want immigration reform to include a path to citizenship for undocumented immigrants.

Besides the offensive nature of repealing the 14th Amendment, especially to blacks and others who have fought so hard for civil rights and equal protection, it would take an enormous amount of energy and expense by Congress and the States to repeal the Amendment. It requires approval of three-fourths of the states and two-thirds of both Houses of Congress. Clearly, xenophobia is behind this anti-“birthright” movement. In addition, repealing the 14th Amendment would not curb the reasons for illegal immigration, would not insure loyalty to the U.S, or encourage citizenship integration. It would instead create a host of other problems. See Immigration Policy Center Report on Birthright Citizenship.