Stateless in the United States: current reality and a future prediction.

• Author: Price, Polly J.
• Position: III. Expanding Statelessness By Restrictions on Birthright Citizenship through V. Appendix, with footnotes, p. 484-514

3. EXPANDING STATELESSNESS BY RESTRICTIONS ON BIRTHRIGHT CITIZENSHIP

   1. The U.S. Political Landscape

      The preceding discussion of statelessness set the stage for analysis of current proposals to amend birthright citizenship in the United States. This Article demonstrates in the following sections how and why the United States would experience increased statelessness from limitation of its jus soli rules, over and above the statelessness that already exists in the country. This new statelessness would be a result of U.S. law, and therefore the U.S. government could no longer claim that "the laws of the United States do not contribute to the problem of statelessness." (250) The Article will also detail the harmful effects of this form of statelessness, both for affected children and for the nation.

      Illegal immigration is perceived by many to be a major problem in the United States. Recent estimates have indicated that as many as 12 million unauthorized aliens reside in the United States. (251) While some believe that all or most illegal immigrants should be deported, the reality is that, under the current configuration of the immigration control system, the United States is "at capacity" when it deports approximately 400,000 persons per year. (252) This accounts for less than 4 percent of the estimated illegal population. The cost to run this system of removal is enormous. (253)

      Because there are many more undocumented aliens than it is possible to both detect and deport, prosecutorial discretion and other tools allow immigration officials to target immigrants who have committed crimes, or who are otherwise undesirable, for deportation. The Obama administration, for example, announced that low-priority immigrant offenders who posed no threat to society would be allowed to stay and offered work permits. (254) More recently, the Obama administration offered "deferred action" for some illegal migrants brought here as children. If the migrants meet certain criteria (including arrival in the United States under the age of sixteen, and being enrolled in or having completed school in the United States), they will not be deported for the next two years, but they still have no legal status or path to citizenship. (255) The top priority for ICE continues to be any noncitizen who poses a national security or public safety threat. (256) The second priority is "recent illegal entrants," and the third priority is "aliens who are fugitives or otherwise obstruct immigration controls." (257)

      Thus, the reality is that most of the unauthorized migrants in the United States will continue to live here for the foreseeable future. Their undocumented status often means an underground existence. Among other impediments, with no lawful entry to the economy available, those persons cannot legally work and, as a result, often end up in exploitive situations.

      Life for their children--if they are born here--can be different. Under U.S. law, any child born in the United States is a citizen, regardless of the immigration status or citizenship of their parents. (258) This citizenship rests on the first sentence of the Fourteenth Amendment of the U.S. Constitution: "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." (259) For these children, citizenship means that they may be eligible for welfare benefits such as Medicaid and food stamps--benefits not available to unauthorized aliens. Any birth on U.S. soil qualifies, with very limited exceptions. (260) A birth certificate is the only proof needed for U.S. citizenship.

      The number of citizen children born to unauthorized migrants has been estimated to be between 300,000 and 400,000 every year. (261) One advocacy group claims that as many as one out of ten births in the United States is to an undocumented mother. (262) These children are sometimes referred to by the pejorative term anchor babies (the author prefers the term citizens) for the supposed immigration benefits that come with being the parent of a U.S. citizen. The children are said to create an improper foothold for their illegal families to stay in the United States, thereby circumventing the legal immigration process.

      But the "anchor baby" concept is largely a myth. The United States routinely deports parents of citizen children when they are in violation of immigration laws. (263) In the first six months of 2011 alone, the United States deported over 46,000 parents of citizen children. (264) Often the citizen children, if minors, go with the deported parents. The citizen children can return at any point, and at age twenty-one they have the right to petition the Attorney General for U.S. residency for a deported parent. (265) But if the parent had previously been deported for immigration violations, the petition is likely to be denied. If U.S. citizen children do not leave the country with the deported parent, they often end up in the foster care system. (266) A 2011 estimate claimed that there are currently at least 5,100 U.S.-born children in foster care whose parents have either been detained or removed. (267) Further, while the Pew Hispanic Center reported that 8 percent of all births in the United States from March 2009 to March 2010 were to illegal immigrant parents, very few of those parents were recent arrivals. (268) This fact at least tempers the view that pregnant women routinely enter the United States clandestinely in order to give birth.

      Nonetheless, the presence of such a large number of undocumented aliens, together with their children who are born here, poses a significant political and social problem. States as well as the federal government have enacted or proposed hundreds of measures designed to deal with unauthorized immigrants by making the United States unattractive, with the aim to create incentives for unauthorized migrants to "self-deport." (269) That effort has included proposals to restrict birthright citizenship in the United States. These proposals would change the automatic award of citizenship at birth to deny citizenship to children born to parents who entered the country illegally. They would also deny citizenship to immigrants who are in the United States on temporary visas, such as student or tourist visas. (270) A poll in 2010 showed that 49 percent of Americans favored restricting citizenship at birth to children of U.S. citizens. (271)

      The debate over how to change birthright citizenship has two camps: those who believe Congress has the authority to limit birthright citizenship by statute, and those who insist a constitutional amendment is required. The attraction of congressional authority over citizenship is obvious. It is extremely difficult to amend the Constitution, since this requires two-thirds approval of both congressional houses as well as ratification by three-fourths of the states. In the past, the Republican Party called for a constitutional amendment in its platform. (272) The view that Congress could accomplish the same thing by legislation is of more recent origin.

      Legal scholars have debated this issue at some length, so this Article will not discuss it here. (273) The author shares the view that Congress has no such authority because the language of the Fourteenth Amendment is clear. Any person--regardless of their parents--acquires citizenship at birth so long as he or she is "subject to the jurisdiction" of the United States. (274) Proponents of congressional authority, however, reason that because the parents are in the country illegally, they are not "subject to the jurisdiction" of the United States. (275)

      Without conceding the authority of Congress to change the rule of jus soli, this Article will use as an example the Birthright Citizenship Act of 2013 (H.R. 140)--the leading model for legislation to limit birthright citizenship in the United States, which is also equivalent in its terms to a proposed constitutional amendment. (276) H.R. 140, sponsored by Representative Steve King of Iowa and nineteen listed cosponsors, (277) would amend [section] 301 of the Immigration and Nationality Act. The same bill introduced in 2011 had ninety listed cosponsors, (278) with the marked drop in support no doubt a reflection of the 2012 elections. The official summary of H.R. 140 states that the proposed act

      [a]mends the Immigration and Nationality Act to consider a person born in the United States "subject to the jurisdiction" of the United States for citizenship at birth purposes if the person is born in the United States of parents, one of whom is: (1) a U.S. citizen or national, (2) a lawful permanent resident alien whose residence is in the United States, or (3) an alien performing active service in the U.S. Armed Forces. (279) Unlike limitations on jus soli in the United Kingdom and Australia, H.R. 140 and similar proposals do not provide a path to legal residency or citizenship for children born to undocumented aliens. A child born of undocumented aliens in the United Kingdom or Australia, and who continues to reside there, can elect citizenship in that country at the age of majority. (280) Instead, the working proposition of H.R. 140 and similar proposals (281) is that a child born in the United States to unauthorized migrants would retain the nationality of the parent or parents, and like the parent would remain deportable.

      H.R. 140 also does not provide U.S. citizenship for children who would otherwise be stateless. The award of nationality to prevent statelessness for children born within a nation is now an international standard, widely adhered to in jus sanguinis nations as well as in countries that have limited the reach of jus soli. As one example, in the 1990s, some politicians in Canada debated amending that country's rules of birthright citizenship to exclude the children of illegal migrants. (282) Notably, the proposal included the...