Children of illegal immigrants are not entitled to US citizenship
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Children of illegal immigrants are not entitled to US citizenship

February 7, 2011, 6:17 pm
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Having wilfully evaded legal authority and broken the law,they are not within the category of persons the 14th Amendment was enacted to protect
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By Reynold N. Mason JD

 Anchor Babies Have No Constitutional Right to U.S Citizenship



            Atlanta, Feb. 7, 2011.  This case is before the court on the petition of Jane Doe a citizen of the country of Mexicali. When she was 8 months pregnant, Mrs. Doe, along with her husband, packed their bags and made their way to the border state of  Arizia.  The strain of the crossing, evidently caused Mrs. Doe to go into premature labor. The county of Maricupio, a locality in the state of Arizia dispatched its emergency services, which conveyed Mrs.  to  Maricupia Central, where she gave birth to a son.  Arizia recently enacted a law, SB 1303, which states, in part,  “A child born in the state of Arizia shall not be entitled to citizenship by virtue thereof, unless at least one of such child’s parents is a US citizen or legal resident thereof. Mrs. Doe now sues the state of Arizia and requests that the court direct its authorities to issue a birth certificate to her son, Innocentio Doe, with the appropriate  indicia of US citizenship.

The Petitioner is joined in this request by Mrs. Delta Chin-Asiania, a Chinese national. Mrs. Chin-Asiania arrived in Califon as a visitor on a B-2 Visa. She, like her co-petitioner was also an expectant mother at the time. Her stated purpose in entering the US was to afford  her child the benefits of  United States citizenship.  She, likeuncounted numbers of expectant mothers, have availed themselves of the services of a Mr. Robert Zhou, an  entrepreneur, who has built a thriving business facilitating  trips to the US on behalf of expectant Chinese mothers, traveling to Califia and other states on the West Coast to give birth to their children. For a fee of $15,000, Mr. Zhou’s company arranges with the hospital, the doctor, the house, the car rental and other extras. Beaming with pride, Mr. Zhou told NPR last month “What I’m trying to do is help Chinese mothers to realize their American dream, at a fair and reasonable price. We’re not encouraging pregnant women to go and get a U.S visa. We say that if you already have a U.S visa, and you’re pregnant, you can take the opportunity to give birth in the U.S. So yes, it is a gray area in U.S law” The petitioners are joined in this action by the Asiania  Civil Liberties Union (The ACLU), who have filed a brief in support of their request.

The petitioners, assert that their children are American citizens by virtue of their birth on US soil without  further qualifications. They cite the 14th Amendment to the constitution which states: “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.” They allege the suggestion that the states revise the 14th Amendment is a ploy by conservatives to further anger the American public.

Whether the drafters of the 14th Amendment intended to include the children of illegal aliens has been a matter of dispute. Petitioners claim that repeal of birthright citizenship would mean that children born in the Unites States would be deported to a country to which they feel no allegiance. Petitions have branded the effort to repeal birthright citizenship ‘racist”. They assert that fears of chain immigration, as a consequence of birthright citizenship are unfounded. The only benefits of giving birth here, they assert, are that legal children can help parents avoid deportation, can enroll in Medicaid and, some programs aid pregnant and nursing mothers regardless of immigration status. Counsel for petitioner States in his brief that   “The citizenship clause is a bedrock principle of civil rights and part of what makes us all Americans.  Never in our nation’s history have we amended the Constitution to take away someone’s rights, and we should not do so now.”

                                                  The Court’s Decision:

          The question this court is called upon to resolve has been debated for years in the public arena. Those who oppose birthright citizenship have, in the past, introduced bills in Congress to end the practice. Such bills have been introduced once again, this term, by Senators David Vitter and Rand Paul. The counterpart to this bill has been introduced in the house by representative Steven King. It has several Co-sponsors. The sponsors of the amendment to deny birthright citizenship to children of illegal immigrants claim such children are “anchor babies” used to provide their parents with a foothold in the country. They do not contend there is any immediate benefit to the parents but, they assert that these babies can provide a basis for parents to avoid deportation under Section 212(c) of the Immigration and Nationality Act, (INA) by alleging that their deportation would bring hardship on their citizen children. They argue that the law, as it now stands, invites abuse by granting citizenship to children of persons with no nexus to the country, and no allegiance thereto. The respondents note that few countries in the west allow this anachronistic right of citizenship by birth, or Jus Soli, as this concept is referred to in Latin.     England, Germany, Australia, South Africa, and scores of other developed countries have changed their laws to bring the practice in line with the realities of the global village. But this court is not constrained by the state of affairs in foreign jurisdictions. We must look to our Constitution for guidance in resolving the question now before the bench. The people of this country have expressed their sentiments on the question, and they did so resoundingly by removing from political power, their elected representatives opposed to their position. That, in fact, is the way our democracy works. The sentiments of the people, however, must be in accord with our constitution if they are to receive judicial recognition. Were it otherwise, the court would be powerless to strike down as unconstitutional enactments such as the Jim Crow laws enacted in the Southern States after the country’s bloody Civil War.

          The 14th amendment to the constitution says this: “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.” Reading, the 14th Amendment in historical context leaves little doubt concerning its true meaning. It must be borne in mind that the civil war was fought in large part, because of the institution of slavery. When the institution breathed its last breath at the end of the American Civil War, the first laws of the former Confederate States, imposed sundry disabilities on blacks. They were disqualified from jury service and in all the states former slaves were denied the right of suffrage. Countless burdens were heaped upon them so that their newly acquired freedom was rendered worthless. The Amendment in question was adopted with the purpose of lifting the burdens and disabilities imposed on freed slaves by pervasive and invidious legal restraints. In fact, the Dred Scott decision of the Supreme Court held that former slaves were not citizens of the United States.  The 14th Amendment therefore, was not intended as a means of conferring citizenship upon the children of illegal immigrants. They are not of the same general category as former African slaves who were brought to these shores kicking and screaming in protest. These petitioners are here of their own accord. Having willfully evaded legal authority and broken the law of the land to get here, they are not with the class of persons the law was intended to protect. The question can be asked whether the 14th Amendment should be applied to the children of an occupying  army? The drafters of the 14th Amendment could not have intended anything as self-defeating and irrational as that. To do otherwise would compel us to face the conundrum of making illegal entry in the country a crime and at the same time granting a desired benefit to the offender. While it is true Innocentio Doe is blameless, he is in his present predicament nonetheless, as a consequence of their parents’ choice. Were these parents to choose bank robbery to purchase necessaries, Innocentio would not be entitled to the fruits of their illegal endeavor. The Asian petitions owe no allegiance to this country and are not subject to its jurisdiction. Their U.S born children are therefore not entitled to birthright citizenship. Their case is no different from that of a member of the Diplomatic Corps. Their children, born in the U.S, do not acquire U.S citizenship, and that is because although present here, diplomats are not subject to the jurisdiction of the United States. It is the decision of this court that the children of illegal immigrants born in the any state or territory of the United States of America are not entitled to the benefit of birthright citizenship.

Note: The foregoing is a set of facts created  for the purpose of raising the issue of birthright citizenship  as a court is likely to hear it. Any similarities to real people are completely coincidental.

The author



Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
U.S. Immigration Lawyer
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