Birthright citizenship and anchor babies

Donald Trump, one of the Republican candidates in the 2016 presidential race, recently made news with his immigration plan which includes a provision regarding “birthright citizenship” or “anchor baby” status. Other Republican candidates have commented on birthright citizenship, including Jeb Bush, Ted Cruz, Bobby Jindal and Marco Rubio. At a rally, Jorge Ramos, anchorman for Univision and Fusion, was escorted out by security when he attempted to question Mr. Trump about his immigration proposals. Mr. Ramos, who has been called the “Hispanic Walter Cronkite,” was allowed back in later.

Mr. Trump’s plan could potentially affect as many as 300,000 babies a year born in the US to unauthorized immigrants (see report of Pew Hispanic Center) who are currently granted citizenship based upon their birth in the United States, despite the unauthorized status of their birth mothers.

The Citizenship Clause of the 14th Amendment to the U.S. Constitution provides: “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.” Based upon the current interpretation of that clause, any child born in the United States to almost anyone (primarily excluding children born to foreign ambassadors living in the US) is a natural born citizen of the United States.

The term “anchor baby” usually implies that unauthorized immigrant parents could use the citizenship status of a birthright citizen baby to improve their chances of establishing their own citizenship. However, under federal law, a child must be 21 years old to petition on behalf of a non-citizen parent, so a family would have to wait 21 years to use the child’s citizenships status to improve their own immigration status.

Though none of them would count as an “anchor baby,” at least three of the current presidential candidates did gain U.S. citizenship through “birthright citizenship.” Marco Rubio was born in the US to Cuban citizens who had immigrated to the US, and Bobby Jindal was born in the US to citizens of India who moved to the U.S. a few months before his birth and later became citizens. Ted Cruz was born in Canada to an American mother, which also qualified him for US citizenship.

Experts – from judges to think tanks scholars – hold differing opinions about what it would take to eliminate birthright citizenship. Many believe it would take a constitutional amendment to modify the provisions of the 14th Amendment – a long and somewhat complicated process. Others believe, based on various legislation defining citizenship rights, that Congress could enact legislation to do so. In fact, various bills have been introduced over the years to limit the application of the Citizenship Clause, but none of these bills were passed.

In addition to his plan to eliminate birthright citizenship, Mr. Trump’s immigration proposal includes plans to triple the number of border officers and to build a wall along the 2,000 mile long U.S./Mexico border to make unauthorized entry into the United States more difficult.

For more information about birthright citizenship and other immigration issues, please contact George Miller, the board certified immigration expert at Dozier Miller Law Group.

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