Trump administration revives talk of action on birthright #citizenship | TheHill

Last gasps, supported by the usual groups. Executive orders can for the most part be easily undone by the Biden administration:

The Trump administration has revived discussions around taking executive action targeting birthright citizenship in its final weeks before leaving office, according to two people familiar with the discussions.

President Trump has spoken throughout his first term about ending birthright citizenship. Drafts of a possible order have been circulating for some time, and there is now internal discussion about finalizing it before the Biden administration takes over in January, sources said.

The administration is aware the order would be promptly challenged in court, but officials would hope to get a ruling on whether birthright citizenship is protected under the 14th Amendment, according to one source familiar with the plans. Many lawmakers and experts have argued it is protected, but the courts have not definitively ruled on the issue.

“Since taking office, President Trump has never shied away from using his lawful executive authority to advance bold policies and fulfill the promises he made to the American people, but I won’t speculate or comment on potential executive action,” White House deputy press secretary Judd Deere said in a statement.The Department of Justice has been consulted about a possible birthright citizenship order given it would deal with the legal implications of the new policy. A spokeswoman for the department did not immediately respond to a request for comment.

The birthright citizenship measure is being discussed as one of multiple executive actions the Trump administration could take on its way out the door. White House chief of staff Mark Meadows told aides following Election Day to come up with possible policy priorities to push through in the two months before Inauguration Day.

Others in the works include additional reforms to the H-1B visa program, regulatory reforms and measures targeting China. The president earlier Friday announced two major actions aimed at lowering the price of prescription drugs.

The wave of action reflects how many in the White House are attempting to cement their agenda before the Biden administration takes over in January, even as Trump refuses to concede the race and has pursued thus far unsuccessful legal challenges in key battleground states.

The president first proposed ending the practice that grants citizenship to those born in the United States during his 2016 presidential campaign. He revived the idea in 2018 during an Axios interview, saying he would sign an executive order to enact the change.

Trump in August 2019 again said his administration was “very seriously” considering a measure to end birthright citizenship.

In each instance, lawmakers and legal experts have pushed back on the idea and cast doubt on Trump’s ability to unilaterally end birthright citizenship. They have asserted that birthright citizenship is protected under the 14th Amendment, which states, in part, that “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.”

Some outside groups and allies of the administration have wondered why Trump has waited until his final weeks in office to follow through on a birthright citizenship order that he has talked about for years.

“The Citizenship Clause of the 14th Amendment was clearly intended to guarantee that emancipated slaves would properly be recognized as U.S. citizens,” said RJ Hauman, government relations director at the Federation for American Immigration Reform. “It is a fundamental misapplication of this clause that U.S.-born children of illegal aliens are granted automatic citizenship, much less the offspring of people who come here to simply give birth on American soil.”

“If the president finally issues a long-awaited executive order limiting birthright citizenship, it will be up to the Supreme Court to resolve this issue once and for all,” Hauman added.

Source: Trump administration revives talk of action on birthright citizenship | TheHill

Hearing on birthright citizenship in U.S. territories Wednesday

Decision and rationale will be interesting:

Arguments will be heard Wednesday in an ongoing birthright citizenship case being appealed in the U.S. Court of Appeals for the 10th Circuit.

Lawyers for the U.S. Department of Justice will argue in the appeals court to reverse a ruling in Fitisemanu v. United States, which recognized that individuals born in U.S. territories have the same right to citizenship as those born in the 50 states or the District of Columbia, a release from Equally American stated.

Lead plaintiff John Fitisemanu was born in American Samoa – a U.S. territory since 1900.  For the last 20 years he has been a taxpaying, U.S. passport holding resident of Utah. However, based on a discriminatory federal law, he is labeled a “national, but not a citizen, of the United States.”

In December, a district court recognized that he is a natural-born U.S. citizen. The next day, Fitisemanu registered to vote. But because the district court later stayed its ruling pending appeal, Fitisemanu will be unable to vote in November unless the district court’s ruling is affirmed by the 10th Circuit.

“With an important election around the corner, I am hopeful the 10th Circuit will act quickly so that I will finally be able to vote,” Fitisemanu said in advance of the argument. “All my life I’ve met my obligations as an American, it is time I’m able to exercise my rights as a citizen.”

Source: Hearing on birthright citizenship in U.S. territories Wednesday

‘Anchor babies’: the ‘ludicrous’ immigration myth that treats people as pawns

A different situation than that normally captured by the term “birth tourists” without the abuse implied by those visiting only to give birth for the purposes of obtaining citizenship for their child:

Daira García wakes up at 5.50am. She takes out her dog, then tries to eat some breakfast before boarding the bus that gets her to school by 7.26 in the morning.

After class, she heads back home, where her parents, Silvia and Jorge, watch Noticiero and sip mate (she sometimes tries the drink as well but admits she’s never quite gotten used to it). They eat something, talk. When Daira goes off to finish her homework, she forgoes the desk in her room to curl up in her parents’ bed.

“It’s more comfy,” she quips.

Daira, 17, has a fairly standard routine for an American teenager: school, homework, family time. But unlike most kids, the schedule she’s come to rely on each day could easily be disrupted at any point.

Silvia and Jorge traveled from Argentina to the United States as 2001 became 2002, and with a new year came their new life in an unknown country. Daira’s big brother was just an infant then; now a college student, he doesn’t even really remember the place where he was born. And yet he’s only shielded from deportation because of Deferred Action for Childhood Arrivals (Daca), an Obama-era program the Trump administration has been trying to end for years. Silvia and Jorge, meanwhile, have no protection and could be picked up by agents from Immigration and Customs Enforcement (Ice) at any time.

Daira begins to cry just thinking about it.

“We’ve never had a plan for it if it happened,” Silvia says in Spanish. “Maybe we don’t give much thought to that because we think it’s healthier.”

An estimated 4.1 million US-citizen children lived with at least one undocumented parent in recent years, according to the Migration Policy Institute. They’re kids who anti-immigrant groups disparage as “anchor babies”, a derogatory term that insinuates these children are little more than pawns used by their immigrant parents to get a foothold in the US and eventually become citizens themselves.

Source: ‘Anchor babies’: the ‘ludicrous’ immigration myth that treats people as pawns

Birth Tourism: Considering the Enhanced Drivers Licence Approach

When the then Conservative government considered limiting birthright citizenship to those born to Canadian citizens or permanent residents in 2011-12, two options were considered: the federal government citizenship certificates to those entitled or incorporating citizenship information in birth certificates.

The latter option was preferred given the prevalence of birth certificates for identification purposes. My earlier article outlines the opposition to this proposed change (What the previous government learned about birth tourism).

This somewhat in-the-weeds piece looks at the earlier successful experience the federal government had with respect to the incorporation of citizenship information in drivers licenses in Ontario, British Columbia, Manitoba and Quebec (which later ended issuing Enhanced Drivers Licences given low demand), and what lessons that might have should a future government decide on curtailing birthright citizenship to children born to citizens and permanent residents..

What intrigued me in researching the matter was that the EDL experience did not appear to inform the subsequent birth tourism consultation and policy processes, even if it was the same group, my former team at IRCC, that was responsible for both.

The other interesting aspect was that governments over-estimated the demand for EDLs and thus provincial governments are essentially subsidizing their EDL programs and yet only Quebec cancelled their program.

Birth Tourism – The Enhanced Drivers License Example

IRCC Minister commends Richmond council for tackling birth tourism

No signalling of change or new studies or initiatives as expected (need to await the results of the IRCC, CIHI, StatsCan analysis of those non-resident self-pay on visitor visas compared to other temporary residents):

Marco Mendicino, the Minister of Immigration, Refugees and Citizenship, told the Richmond News the federal government wants to “weed out” abuses of the immigration system, but he added the principle of “jus soli” – birthright citizenship – has served Canada well.

Birthright citizenship has been in existence in Canada since 1947 and it is also a common practise in other countries, like the U.S. and some Commonwealth countries, Mendicino pointed out.

“There are families who do come to Canada and do avail themselves of this principle and they’re able to bestow upon their children Canadian citizenship as a result of this principle – along with that a number of rights and privileges,” he said, adding “it’s a principle that has absolutely served the country well.”

But Richmond has become known as the “epicentre” of birth tourism, attracting people who come to give birth here in order to secure Canadian citizenship for their baby. In the past year, 23 per cent of babies born at Richmond Hospital were born to non-residents.

Several businesses advertise – exclusively in the Chinese language – for birth tourism services, saying they will provide accommodations for pregnant women and help with after-care and paperwork.

Richmond council passed a motion on Monday to push the minister to end automatic citizenship for babies born to non-residents.

Mendicino said he “commends” the mayor and council of Richmond for having a discussion about the birth tourism and he will reflect on the motion that was passed. The issue needs to be monitored and tracked “very closely,” he said.

“I think we should express some gratitude to the City of Richmond and the council for examining the issue and advocating what the issues are within the context of the concern,” he said. “It’s more about determining and finding where the abuses are within the system rather than getting rid of the principle.”

Mendicino said the federal government is taking “concrete steps” to strengthen the oversight of immigration consultants “to really hold accountable any individuals who are trying to backdoor or take advantage of the system.”

He added the federal government wants to work with provincial partners and municipalities like Richmond to “weed out any abuse of our immigration system.”

There was a level of frustration at Richmond council on Monday – directed somewhat at Vancouver Coastal Health, the provincial government and the federal government – as councillors debated the merits and wording of a letter to push the federal minister of immigration to tackle birth tourism.

Voting against the motion were Couns. Alexa Loo, Kelly Greene and Michael Wolfe.

While Greene said she’s 100 per cent against birth tourism, she felt the motion was worded so that it could cause “disproportionate harm” to “vulnerable people such as refugees and stateless people.”

She said the harm would be exclusively to people of colour and she didn’t want to see at-risk people further marginalized.

“The motion should be to stop birth tourism,” Greene said. “It’s not – it asks to stop birthright citizenship for a broad swath of people.”

Coun. Bill McNulty said he sees birth tourism in his neighbourhood and called on senior governments to take action.

“I think this is an issue that really has put us in a vulnerable position – the two levels of government are totally out of touch with what’s happening in the communities,” McNulty said.

He also suggested the city needs to push Vancouver Coastal Health into action, considering 66 per cent of non-resident births in B.C. take place at Richmond Hospital.

Au echoed the sentiment that VCH should look into the issue, saying the health authority is “not willing to touch this.”

However, VCH spokesperson Catherine Loiacono pointed out this is a federal issue and health care professionals have a duty to provide care to anyone who needs it.
“Care is always triaged according to the safety of the mother and baby – mothers needing immediate care are seen first,” she added.

Nursing baseline staffing is based on patient volumes – not on census data. A staffing review in 2019 found that Richmond Hospital is staffed “appropriately” for patient safety and quality care, Loiacono said. Because the nature of giving birth is unpredictable, if there are increased numbers of patients, more resources are brought in, she added.

Source: Minister commends Richmond council for tackling birth tourism

Richmond council asks feds to ban birth tourism

More from the epicentre. Good that they are also looking at possible local approaches:

Richmond city council wants the new federal minister of immigration to tackle the problem of birth tourism.

A motion by Coun. Carol Day to write to Marco Mendicino, the Minister of Immigration, Refugees and Citizenship, urging him to end birthright citizenship for non-Canadians was supported by almost all of council at Monday’s committee meeting.

In the meantime, city staff are fining birth tourism operators on any illegal activity they may be running – but because there is no business license for birth tourism, they can’t be shut down for advertising birth tourism services, explained Cecelia Achiam, general manager of community safety.

“We do not regulate something that we could not approve, so birth tourism is not something that we could regulate at this point,” Achiam said.

This was challenged by the mayor, Malcolm Brodie, however, at the meeting, and he asked staff to find out whether it is possible to shut them down based on the fact they are an illegal business.

“If they’re doing something that’s unlicensed and not allowed, you’re telling me you can’t do anything about it – surely it’s operating a business without a license,” Brodie said.

Currently, staff will fine any activity advertised by birth tourism services if they don’t have a license, explained Achiam, for example, if they advertise tutoring services, the city can fine them if they don’t have a business license for tutoring – or if they advertise food services and airport pickup/dropoff services without the correct licenses.

The motion passed by council was to write to the new minister to ask for “immediate permanent changes” to end automatic citizenship for babies born in Canada to non-resident, non-Canadian parents.

Greene pointed out that staffing at Richmond Hospital is based on census data, but this would not take into account the quarter of the total number of births that are to non-residents.

“We’re definitely seeing service impacts – I’ve personally been impacted,” Greene said.

Of the countries that have birthright citizenship, North America is a desirable destination, she said, but this is something the “ultra-rich” only can do.

“It feels really unfair and it doesn’t feel right to shop for your citizenship,” Greene said.

Greene also criticized MLA Jas Johal for praising the U.S. government move to ban pregnant women from getting tourist visas, something Greene called “policing women” by profiling them if they’re pregnant when applying for a tourist visa.

The U.S. State Department put in rules more than a week ago that banned women who were pregnant fromgetting tourist visas to the U.S.

Greene called this a “horrifying violation of human rights.”

She said she wants the letter to reflect that Richmond wants to end a practise where “people essentially buy their citizenship so that we’re never ever in a situation where we’re policing women’s bodies.”

Greene also called for an amendment that talked about changes not affecting vulnerable and stateless people but this didn’t pass.

Coun. Bill McNulty said the accommodation rules need to be revisited, because birth tourist stays don’t fall under short-term rentals, rather the provincially regulated long-term rentals.

“I think there are many loopholes to be closed and I think the city can close some of them within our community,” he said.

This was reiterated by Coun. Harold Steves who suggested long-term rentals for birth tourism are actually turning homes into hotels.

McNulty also suggested sending the letter to all MPs in Canada since it’s a federal issue.

“If you want something to be done at the federal level … I think we have to let everybody know,” he said.

Greene was the only councillor who voted against the motion.

Mendicino did not return repeated requests from the Richmond News for an interview.

Why Canada should end our unfair birth-tourism policies: Gary Mason

The latest commentary:

Last week, the U.S. State Department began enforcing new rules limiting the travel of women coming to the country for the primary reason of giving birth.

This is a response to President Donald Trump’s long-pledged promise to end the policy, which bestows automatic American citizenship on newborns. So-called birth tourism is also seen as a backdoor way of making it easier for the child’s parents to one day become U.S. citizens themselves.

Of course, this is not a phenomenon unique to the U.S. We have been experiencing the same issue here, and now B.C. politicians are worried that Mr. Trump’s new enforcement measures will mean an even greater number of foreigners will turn to Canada as an ever-accommodating alternative.

The city of Richmond, B.C., just outside of Vancouver, has become a prime destination, especially for visitors from China. An unsavoury industry has built up around the facilitation of those wanting to come here to give birth. These outfits offer a one-stop shopping experience, which includes a “guarantee” that pregnant women will get through customs with the proper paperwork. These women, and anyone travelling with them, are coached on what to say when interviewed by border agents.

In their advertisements, these companies outline a long list of benefits of giving birth in Canada including the fact the country provides free education before university, free health care and, that once the child reaches the age of 18, he or she can apply to sponsor their parents to immigrate to the country. The advantages to instant citizenship go on and on. All interested parties need is the tens of thousands of dollars that these shysters are charging.

“We’ve basically put a price on Canadian citizenship,” said Jas Johal, a provincial Liberal MLA from Richmond. “These individuals are paying $80,000 so their child is guaranteed a Canadian passport.

“This is an elite, global, moneyed class that has found a loophole and are working the system. These are not your typical hard-working immigrants who built this country.”

Recent numbers tell the story: Between April 1, 2018, and Feb. 7, 2019, there were 389 births to non-resident mothers at Richmond Hospital. The year before, there were 474 and the year before that, 383. “It’s a stark reminder that our hospital has turned into a passport mill,” Mr. Johal told me.

According to an investigation conducted for the Canadian Global Affairs Institute, a non-partisan research group, a few years ago, there were 3,223 births by non-residents in Canadian hospitals in 2016 – excluding Quebec. In 2018, the number had jumped to more than 4,000.

The head of Doctors of BC, Kathleen Ross, has spoken out about the issue, saying the practice is straining resources. Some hospitals have been put in a difficult situation in which they have no choice but to deliver the child of a foreign patient even when coverage for the procedure is in doubt. Some doctors have ended up being short-changed for their services.

Some people have suggested that the uproar over birth tourism is overblown, that the numbers aren’t overwhelming. Of course, that misses the point entirely. Whether it’s one person or 4,000, people shouldn’t be able to effectively buy citizenship in this country, shouldn’t be able to scam their way in front of those who have been waiting to get citizenship legally.

Federal politicians Liberal MP Joe Peschisolido and Conservative MP Alice Wong, who both represent ridings in Richmond, have tabled petitions in the House of Commons calling for action. So far, the federal Liberals have been reluctant to do much about the matter.

Mr. Johal believes the crackdown by the Trump administration is only going to make the situation here even more acute. He thinks the solution is simple: Enact a law that says anybody who comes to Canada on a tourist visa and gives birth, will not automatically be eligible for Canadian citizenship.

The federal Conservatives have proposed legislation that eliminates birthright citizenship unless one of the parents of the child born here is a Canadian citizen or a permanent resident. They’ve also suggested stricter visa requirements, in the first place, for people coming in from other countries in late stages of pregnancy.

Those proposals don’t seem radical to me. Nor do they seem racist or nativist. This is not about blocking foreigners from coming to Canada, or restricting immigrants from building a new life here. This is about fairness, plain and simple.

Several countries have changed their citizenship laws to end the practice of birth tourism, including Britain, New Zealand, France and Germany. It’s long past time that we, too, put an end to a practice that is both deceitful and unscrupulous.

Source: Why Canada should end our unfair birth-tourism policies

The risk of oversimplifying the birth tourism debate

My latest take on recent birth tourism debates (excerpt):

Did the CBC Fifth Estate really demonize pregnant migrant women in its investigative report into the number of non-resident births in Canada? That is the argument made by Megan Gaucher and Lindsay Larios, writing recently in Policy Options. A letter of complaint was also submitted about the report to the CBC Ombudsperson by 30 organizations, including groups representing migrant workers. Is discussion of birth tourism essentially a form of xenophobia given its focus on visible-minority foreigners? Or are the underlying concerns of the critics less about birth tourism and more about gaps in healthcare coverage for temporary residents?

Source: The risk of oversimplifying the birth tourism debate

Is Trump admitting defeat with his new U.S. visa rules?

Likely, a narrower administrative approach that will nevertheless be subject to legal challenges. But this analysis, essentially arguing that the measure is more virtue signalling to his base, given some of the implementation issues covered in earlier posts, is likely correct:

Last week, the State Department released regulations effective Jan. 24 that make it more difficult for pregnant women to get tourist visas to visit the United States. It’s part of the Trump administration’s attack on “birth tourism,” a term that implies that some women visit just to give birth to a U.S. citizen child. The changes attempt to do an end run around the 14th Amendment, which says that anyone born on U.S. soil is a citizen.

Throughout immigration history — both in the United States and in other countries — pregnant women’s motives have been scrutinized. This new regulation may be an acknowledgment that the Trump administration can’t get rid of birthright citizenship as easily as it may wish.

What’s the change?

The regulations instruct U.S. Embassy personnel around the world to explicitly deny applications for what are called B1/B2 visas (a temporary visa for business and tourism) for birth tourism. The provisions don’t apply to tourists from the 39 (mostly European) countries covered by the visa waiver program, which allows citizens of these countries to visit the United States without a visa.

Here’s the wording:

“This rule establishes that travel to the United States with the primary purpose of obtaining US citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa.”

(Department of State, Public notice 10930, pages 1-2)

While there are exemptions for women traveling to the United States for medical treatment, applicants must prove that treatment is necessary and that they can pay for it.

Birthright citizenship around the world

More than 30 countries around the world have some kind of birthright citizenship. But the terms vary widely. While some countries like the United States offer citizenship unconditionally to anyone born on their soil (with narrow exceptions for the children of diplomats), others condition citizenship on such factors as how long the parent or parents have lived in the country or their immigration status; where the child will live; or some combination of those.

At least one country that used to grant birthright citizenship, Ireland, repealed it by referendum in 2004 because many people thought that pregnant foreign women were using a child’s birth on Irish soil to secure residency and circumvent Irish asylum laws. Gender and women’s studies professor Eithne Lubehéld‘s book “Pregnant on Arrival: Making the Immigrant Illegal” observes that the Irish drew inspiration and information from U.S. debates about birth tourism.

In the United States, birthright citizenship dates to Reconstruction

The 14th Amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside.” The Amendment, ratified in 1868 during Reconstruction, clarified the citizenship status of free black Americans and overturned the 1857 Supreme Court case Dred Scott v. Sanford that stated that black people could not be citizens.

While the amendment was being debated, some members of Congress worried that birthright citizenship would enable the Chinese to become citizens. But concern for children born to European immigrants overrode the anti-Asian prejudice. The Supreme Court clarified that the birthright citizenship clause covers children born to immigrants — not just formerly enslaved and free African Americans — in U.S. v. Wong Kim Ark (1898), writing:

“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”

U.S. v. Wong Kim Ark (1898)

Historically, the United States has scrutinized pregnant immigrant women — sometimes excluding or deporting them — under the provisions “likely to become a public charge” and “moral turpitude,” dating back to the early 20th century. The public-charge regulation grew from fear that pregnant immigrant women would use public resources like hospitals, burdening American communities both economically and socially. Moral turpitude was supposed to exclude immigrants who had committed certain crimes or offenses — although it has never been clear which ones, exactly, would get someone excluded or deported. Consular officers sometimes used theseagainst women and others who violate social norms, such as unwed pregnant women or single women traveling alone.

In his recent book “Almost Citizens: Puerto Rico, the U.S. Constitution, and U.S. Empire,” legal scholar Sam Erman wrote that in the early 20th century, the commissioner of immigration told Ellis Island immigration inspectors to aggressively enforce the public-charge provisions. Under these instructions, Erman writes, “Ellis Island policy dictated that women who were pregnant and not married had to be held for additional investigation.”

Rutgers student Alyzette Consoli wrote about Minnie Langford, a pregnant black woman traveling from Nova Scotia to New York City in 1920. When she was hospitalized at Bellevue because of pregnancy complications, immigration officials were notified and she was deported. Consoli noted, “It was common practice at this time to exclude a woman on the basis of being ‘Likely to become a Public Charge’ (LPC) when they were actually being targeted for moral turpitude offenses.”

What does all this mean for the Trump administration’s new regulations?

Consular officers already enjoy wide discretion in granting and denying visas, and they do not have to explain their denials. An applicant has no right to appeal, and the decision is not subject to judicial review.

President Trump has often railed against the United States’ generous birthright citizenship policy. In a 2018 interview with Axios, he stated, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits. … It’s ridiculous. It’s ridiculous. And it has to end.”

Changing the regulations may be the administration’s concession to those who insist that the only way to get rid of birthright citizenship would be by amending the Constitution, even though Trump has argued that a law or an executive order would be enough.

Richmond councillor urges action on birth tourism

Might be more productive for municipal councillors to have staff review possible zoning and other local regulatory options to help reduce the practice and the supporting “cottage industry” of consultants and residences than “virtue signalling” for a federal government policy change:

Birth tourism will be on the agenda for Richmond city council again.

Coun. Carol Day has brought forward a motion for the next general purposes committee meeting (Feb. 3) asking council to write to the new federal minister of immigration, Marco Mendicino, to urge changes to immigration laws in order to stop birth tourism.

About a quarter of the women giving birth at Richmond Hospital are non-residents, and in the last fiscal year, this translated to 458 babies being eligible for Canadian citizenship even though their parents weren’t Canadian.

Day’s motion suggests writing to the federal government to ask for permanent changes to Canadian immigration laws to end automatic citizenship for babies born to non-residents.

On Friday, the U.S. State Department implemented a new rule banning tourists if their intention is to give birth in the U.S. The new regulation allows consular officials to deny visas to pregnant women whose primary purpose is to give birth in the U.S. to obtain citizenship for their baby.

Ads are prolific on the Internet for birth tourism services in Richmond, and they are all in Chinese. However, anyone coming from China to Canada as a tourist must obtain a tourist visa before arriving.