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Wednesday, September 16, 2015

Birthright Citizenship: Anchor Babies and Accidental Americans

The concept of citizenship never fails to fascinate me.  There are so many ways to think about it and so many different angles from which to approach it.

Lately, the always simmering national debate over the finer details of birthright citizenship moved to a slow boil after one of the US presidential candidates chose to share his views about one kind of birthright citizenship, jus soli or citizenship by place of birth.

Donald Trump is not, as far as I can tell, in favor of completely overturning the 14th amendment to the US Constitution which says:

"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 has been  interpreted by the US courts to mean anyone born on US soil (with the exception of children of diplomats) is a US citizen.   Nothing more is required - not even the consent of the child or his parents.

What Trump is against is this unconditional granting of US citizenship to people he feels should not have it:  children of illegal immigrants and children whose mothers come to the US for the sole purpose, he says, of giving birth on US soil so that their children are US citizens.  He used a rather nasty term for the latter -  anchor babies - one that is also used in the Canadian national citizenship debates which have a distressingly similar tone.

Trump would put conditions on the transmission of US citizenship by jus soli and, frankly, he's not proposing anything that other countries (and there are many) haven't considered or implemented.  Jus soli is not unusual or uncommon in the world, but many countries do require a bit more than just an accident of geography before they call a person a citizen.  In France, for example, residency is required; a child born in France to a short-term foreign expatriate who takes the infant back to the home country is not a French citizen.

There are advantages and disadvantages to the unconditional nature of US jus soli laws.  One advantage is that it is very very practical.  It is easy to administer and absurdly simple to prove one's status. One document, a birth certificate which can be ordered on-line can be presented today and be accepted as an almost 100% positive proof of an individual's birthright citizenship status.

Let's consider what would happen if it was no longer true that a US birth certificate is proof of citizenship.  There would be a doubt attached to every child born in the US which could only be cleared by some agency charged with doing that detective work and issuing that certificate of citizenship after investigating the status of the parents (or even grandparents).

The disadvantages of unconditional jus soli go beyond the minor number of children born to "birth tourists" or even the larger number of children born to undocumented residents.  Every year the US, like many countries, welcomes short-term residents from all over the world:  students, businessmen/women, au pairs, entertainers, IT workers.

In 2014 alone the US State Department issued 467,370 immigrant visas, the majority of which were in two categories:  Immediate Relatives and Family Sponsored Preference.  That number is a mere fraction of the number of non-immigrant visas issued:  10 million.  While these short-term, non-immigrant residents are in the United States many will do a very human thing - they will have children.  When they leave the US they will take their offspring with them and the children  grow up as citizens of their parent's country.  It has been a huge surprise to many of these "Accidental Americans" to discover that they are US citizens by birth and that there are obligations as well as rights that come along with that status.

This is a consequence of the current interpretation of the 14th amendment that I would argue is a hundred times worse than the alleged "birth tourists" having "anchor babies" or undocumented aliens having children in the US.

Because by their actions the parents of these so called "anchor babies" are saying something positive about the United States that should warm every American's heart:  that American citizenship is valuable and desirable.  There are people in the world that want it so much that they are willing to travel thousands of miles and cross oceans to have their children be born in the US.  Others are willing to brave border guards and risk jail and deportation to stay in the US, raise a family there and live out their years celebrating Thanksgiving and the 4th of July with their American children and grandchildren .

But the parents of an "Accidental American" born on a short-term stay in the US who return permanently to their home country do not want to stay in the US and have little or no interest in becoming American citizens. I would not go so far as to say that they don't value US citizenship at all, but they don't want it for themselves  and at best, if it comes with no attachments or obligations, they are only mildly interested in the possibility some day in a distant future of a second passport for that child of he or she wants one.

And when that child reaches his majority and does not inquire at the US consulate, apply for a US passport, or show any interest whatsoever in spending any time in the US, what does that say?  That he doesn't value US citizenship and has no intention or desire to be an American.  A perfectly reasonable point of view for someone who already has another citizenship that he does value above and beyond the one he got by an accident of birth.  If confronted with some of the less desirable obligations of US citizenship, he may prefer to renounce it.  Though, for some reason  (one that defies all rationality)  the United States actually makes it difficult for him to do so:  two interviews at the nearest US consulate, a mass of paperwork, tax filings, and fee of 2,450 USD.

With all that in mind here is another way of looking at US  jus soli birthright citizenship.  On one hand Americans like Trump want to prevent people who think US citizenship is valuable and desirable, and who actually want to be US citizens (or for their children to be US citizens) from being eligible for it.   And on the other the US Constitution confers citizenship automatically on people who don't value it and who wish to get rid of it, and the US government holds them hostage until they jump through some significant bureaucratic hoops and cough up a few thousand dollars.

Does this situation make any sense whatsoever?  Of course it doesn't.

And yet, I don't really know of an ideal solution.  Fixing the 14th Amendment is unlikely and I suspect the motives of those in the US who wish to do so.  Look at the examples Trump and company give of people they feel are undesirable:  Mexicans or Asians.  It reeks of exclusion by race.  As a practical matter putting conditions on jus soli transmission citizenship will create a lot more government bureaucracy and make a simple matter more complicated.

As for those "Accidental Americans" who want to renounce US citizenship, how about we take a complicated matter and make it simple:

Just let them go.


Anonymous said...

Of course the United States of Greed is not just going to let them go; some of them might have some money. Letting the people go is one thing; letting the money go is quite another. Besides, the existence of someone who voluntarily choose to give up US citizenship challenges the central tenet of the American belief system, that the US is the most incredible and amazing, in every possible way, country the world has every known or ever will know. Americans are not going to let that insult pass lightly.

Anonymous said...

I held dual citizenship but have lived outside the USA. My parents were Canadian. I was never given a choice. I hold no US bank accounts or assets and had not lived in the US for over 32 years, so I decided to renounced US citizenship. Yes, the United States makes it difficult: I pay more tax in my country but still had to file 5 years of US tax returns. I had two interviews at the nearest US consulate which was 1000 km from my home, a mass of paperwork which they lost once and I had to refile, and fee of 2,450 US. They didn't recognize an education savings plan (RESP) for my 2 children, it was viewed as investment - although they can only be used for my childrens education. They wanted to know every single detail and my husbands details about what our home was worth - for capital gains, and all our wealth. It was expensive, abrasive, and an invasion of privacy.