Germany under fire over reform of Nazi citizenship rules

2020/02/01 Leave a comment

Ongoing:

Germany’s federal government has been criticised for taking a bureaucratic and contradictory approach towards restoring citizenship for Holocaust survivors and their descendants.

On Wednesday, Bundestag president Wolfgang Schäuble told a special parliamentary sitting, attended by Israeli president Reuven Rivlin, that Germany would never forget its historical responsibility to Holocaust victims and survivors – and their descendants.

Meanwhile, back at work a day later, the federal government used its parliamentary majority to block an opposition proposal to bed down in law liberalised procedures for people who either lost or were stripped of their German citizenship in the Nazi era.

Article 116 of the postwar Basic Law states that “former German citizens who between 30 January 1933 and 8 May 1945 were deprived of their German citizenship on political, racial, or religious grounds may have their citizenship restored. This generally also applies to their descendants.”

But some who have applied for German citizenship say a gap exists between theory and practice.

The issue has grown in significance since the 2016 Brexit vote in the UK. Where just 43 applications for citizenship restitution were filed in 2015, that had jumped to more than 1,500 annually in 2018. The growing number of applications mirrored a rise in complaints that restitution rules were problematic and applied narrowly.

Reasons for rejection

The UK’s Association of Jewish Refugees has a sizeable file of people denied citizenship, although family members fled Germany after persecution on political, racial and religious grounds. One common reason for rejection was a requirement that the person who fled – the relative of the applicant – is a man, reflecting rules on the transfer of citizenship by fathers only until postwar reform.

Other applicants tell of being refused citizenship because, though their Jewish grandparents saved their lives by fleeing Nazi Germany, they left too soon, in the eyes of today’s German authorities, to qualify as persecuted and thus eligible for restoration of citizenship.

Source: Germany under fire over reform of Nazi citizenship rules

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The risk of oversimplifying the birth tourism debate

2020/01/30 Leave a comment

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

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

2020/01/29 Leave a comment

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.

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Richmond councillor urges action on birth tourism

2020/01/28 Leave a comment

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.

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Administrative law just got a new ‘standard of review’

2020/01/27 Leave a comment

More on the Vavilov decision and possible implications for refugee claimants and others (a Citizenship Act amendment would be needed to prevent future Vavilov-type situations):

A Supreme Court of Canada judgment made headlines around the world in December by deciding that Alexander Vavilov, born in Canada to “deep cover” Russian spies, was entitled to Canadian citizenship. Lawyers and scholars took to Twitter to joke that reporters had missed the really exciting part: the Supreme Court of Canada had just redefined the “standard of review” in administrative law.

The terms confuse even lawyers in other fields, but the stakes are high: administrative law concerns how all levels of government — from a municipality granting construction permits to the governor general making someone a member of the Order of Canada — reach their decisions; the standard of review is how much scrutiny the courts will apply if someone challenges those decisions. The Court has given new directions in the Vavilov case on how the lower courts determine what makes a decision legal or reasonable — directions that will help vulnerable individuals who bear the brunt of government decision-making.

For years, courts have debated how much deference they owe. On the one hand, if Parliament or a legislature has delegated a decision to an official, board or tribunal, courts should be reluctant to interfere. On the other hand, the rule of law means the courts must ensure that government action is consistent with legal rules, including the Constitution, and is neither arbitrary nor unfair.

These issues mattered to Vavilov because just after his 20th birthday, the Canadian Registrar of Citizenship cancelled his citizenship certificate, based only on written submissions. The issue was his parents’ status when he was born: they were foreigners living under false identities and working for Russia as spies. He learned their story only just before his 16th birthday, when they were arrested in their Boston home. The family was sent to Russia in a “spy swap,” but for Alexander, it was a move to a country he had never known.

Canada grants citizenship to almost everyone born here, but the Registrar of Citizenship relied on a few words in the Citizenship Act that create an exception for the children of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government”; she argued that Alexander fell into this exception and was ineligible for citizenship.

The underlying issue — the kind that makes non-lawyers shake their heads — was whether the exception applies to any “employee of a foreign government” or whether those few words take their meaning from the larger context and apply only to foreign government employees with diplomatic status, which the Vavilovs were not. Alexander’s lawyers pointed out that restricting the exception to diplomatic employees was the only interpretation consistent with international treaties and with a generous view of citizenship; on their reading, Alexander’s parents were not diplomatic or similar employees, and he would be outside the exception and eligible for citizenship by birth.

The procedural issue was just how much deference the courts had to show to the Registrar’s own interpretation of the Citizenship Act. Vavilov argued that she had to make a decision that was correct: that is, there could be only one valid interpretation of the statute, and the Registrar had to get it right. Government lawyers argued the opposite: officials need only render a decision that appears reasonable, even if the courts might disagree.

The Supreme Court of Canada announced that it would use the case to reconsider the standard of review for government decision-making in general. The judgment decided that the category of cases in which administrative decisions must be correct — where the courts have the final word on interpreting the law — will continue to be limited: where a formal appeal is provided for or where the issues are constitutional or of fundamental importance to the legal system. All other decisions are entitled to deference and must only be reasonable.

But all nine judges decided the decision to cancel Alexander Vavilov’s citizenship was notreasonable: his parents did not benefit from any diplomatic privilege or immunity, so the exception from citizenship by birth was not meant for Alexander; and the Registrar did not consider the harsh consequences that her decision would have for him.

The majority defined what reasonableness means. Among other things, for a decision to be reasonable, it must be consistent with Canada’s international law obligations. In addition, a decision’s impact matters: an individual whose “life, liberty, dignity or livelihood” will be affected deserves greater procedural protection.

This is good news for individuals like refugee claimants facing a return to danger or tenants facing evictions: “ordinary people, including the most vulnerable among us,” in the Supreme Court’s words. They can rely on Canada’s international promises to protect refugees from harm or to ensure the right to adequate housing, along with other economic and social rights. They can also demand that government decision-makers take into account the real-life consequences for them.

Source: Administrative law just got a new ‘standard of review’

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Trump’s New ‘Birth Tourism’ Policy Is A Way To Control Women

2020/01/25 Leave a comment

More negative commentary, particularly around the subjectiveness of determinations:

On Friday, a new policy to stop pregnant women from traveling to the U.S. for “birth tourism” will go into effect. Consular officers can now deny visitor visas to women who they have “reason to believe” will give birth in America in order to get their child U.S. citizenship.

The policy is already controversial because it gives officers, who are not medical experts, broad discretion to determine whether or not someone is pregnant. If an officer thinks a woman is likely to have a baby in the U.S., they can automatically conclude that a person’s “primary purpose” for travel is birth tourism, and prevent them from entering the country.

Women’s health advocates and experts said the rule is a blatant attempt to control women and that it could prevent expecting mothers from receiving life-saving medical care.

“It’s hugely discriminatory and also is putting women’s lives at risk,” said Nora Ellmann, a research associate for women’s health and rights at the Center for American Progress. “The rule is positioning pregnant women as a national security threat.”

The Trump administration has a history of stomping on reproductive rights, especially regarding women of color. While Immigration and Customs Enforcement (ICE) largely stopped detaining pregnant women under a President Barack Obama directive, Trump reversed that order and the number of expecting mothers in detention has jumped by 52% since he took office. Scott Lloyd, the former director of the Office of Refugee Resettlement (ORR), blocked pregnant immigrant teenagers in ORR custody from getting abortions, and allegedly tracked their menstrual cycles. And Trump has talked about using an executive order to end birthright citizenship, to stop immigrants from having what he calls “anchor babies.”

The rule is positioning pregnant women as a national security threat.Nora Ellmann, research associate for women’s health and rights at the Center for American Progress

The topic of “birth tourism” recently made headlines after a woman traveling from Hong Kong to Saipan, a United States territory in the Pacific, was forced to take a pregnancy test before boarding the flight. She had to sign a medical release form that said she had “a body size/shape resembling to a [sic] pregnant lady,” according to a blog post the woman wrote. Though there are no credible statistics on how widespread birth tourism is, media coverage usually focuses on women from China and Russia.

The new policy does not apply to the 39 countries whose citizens can travel to the U.S. without a visa — like France, Ireland and New Zealand — and it’s unclear how it will work for foreign travelers from other countries.

In an email to HuffPost, a State Department spokesperson said officers would only raise the topic of pregnancy if “they had a specific articulable reason to believe a visa applicant may be pregnant and planning to give birth in the United States.” The spokesperson did not answer HuffPost’s question about how an officer would determine whether or not someone is pregnant, how far along they are, and if a medical professional would be involved in a screening.

Women’s health advocates worry the dystopian process will involve an officer behind a glass window sizing up a woman’s body, which could result in discrimination based on gender, age and size.

“It’s clearly a huge violation of a woman’s privacy and dignity,” said Sung Yeon Choimorrow, the executive director of the National Asian Pacific American Women’s Forum. “There is so much room for subjectiveness in this. What types of questions are you going to ask? The whole thing is just so absurd.”

The rule also makes the false assumption that pregnant women only travel to give birth in another country, when they might be going overseas for business or vacation, Choimorrow added.

Even more concerning is that an officer with no medical background now has the power to decide if someone is pregnant and if they deserve medical treatment in the U.S., said Dr. Carolyn Sufrin, an obstetrician-gynecologist who teaches at Johns Hopkins University. “It’s just completely outside of the realm of what they can and should be doing.”

Though the rule specifies that pregnant women seeking medical treatment in the U.S. can be granted visas if they have the means to pay for their medical bills, the policy also states that pregnant women have to prove, “to the satisfaction of a consular officer,” that they have a “legitimate reason” for seeing an American doctor. This phrasing leaves serious, potentially life-saving decisions up to people with no medical background, according to Ellmann.

“They may say, ‘Well, we don’t think that’s a sufficient basis, because you can get the treatment, which may or may not be that good, right outside of the United States,’” said Jeffrey Gorsky, a lawyer who worked in the State Department’s visa office for 36 years.

Dr. Sufrin said that even if the State Department does plan to involve medical professionals, it would be highly unethical for any doctor to be involved in a process that denies medical care to someone based on factors such as their nationality, citizenship status, or for any other reason.

Gorsky said the rule seems extremely hard to implement, especially given the fact that women interested in “birth tourism” can apply for long-term travel visas years before they are pregnant. He thinks the new policy is more symbolic than practical ― a muscle flex for Trump’s anti-immigration base.

“I think the political motivations are what’s driving this,” he said. “This administration does not have a record of caring for the needs of people who are not U.S. citizens.”

Source: https://www.huffpost.com/entry/trump-birth-tourism-policy-women_n_5e2b407bc5b67d8874b16ccf

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The Laughable “Security” Justification for Cracking Down on Birth Tourism

2020/01/24 1 Comment

Good analysis by David Bier:

The U.S. Department of State announced a new rule for tourist visa applicants today: prove you’re not going to give birth in America. The rule will not protect national security, will create more fraud and crime, and will cost America people who will contribute productively to this nation.

The tourist visa statute allows noncitizens to visit the United States for “pleasure,” which State has always interpreted to mean “legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.” — in other words, most anything. But now, “The Department is revising the definition of ‘pleasure’” (p. 2) to exclude giving birth in the United States.

The State Department asserts that the “rule addresses concerns about the attendant risks of this activity to national security.”

The previous regulation failed to address the national security vulnerability that could allow foreign governments or entities to recruit or groom U.S. citizens who were born as the result of birth tourism and raised overseas, without attachment to the United States, in manners that threaten the security of the United States.

The State Department not only doesn’t present any evidence that this is occurring or has ever occurred, but it doesn’t even explain what the threatening “manners” might be that could somehow harm America. It can’t even imagine a hypothetical scenario to give flesh and bones to nightmare. The evidence that it does provide is that “Birth tourism companies advertise their businesses abroad by promoting the citizenship‐​related benefits of giving birth in the United States” (emphasis added). In other words, these are capitalist enterprises led by the market, not governmental efforts led by foreign security agencies.

I have dug through hundreds of national security and terrorism cases over a 30‐​year period to identify the origins of the offenders, and not a single case that I have reviewed followed this fact pattern.

The State Department lists the following reasons for people choosing to give birth in the United States:

obtaining a second citizenship for their child, the perceived low‐​cost medical services available to women in the United States, the lower cost of obtaining U.S. citizenship through birth tourism than through a U.S. investor visa, and the perceived guarantee of a better socioeconomic future for their child.

Not included on this list: developing stealth agents to (somehow) undermine America.

It’s also interesting that the State Department didn’t include the evasion of China’s 1‑child/​2‑child policy. One woman named Liou said in 2015 that she only came to the United States to “skirt China’s one‐​child policy” and will return to China after giving birth. The reason is that the child limit only applies to children born in mainland China. A Shanghai reporter assessed the situation this way in 2011:

American journalists continue to generate stories about birth tourists from China, most often explaining them as seekers of the American dream. They rarely touch on what the Chinese people, and their media, know is a leading cause of the phenomenon: an attempt to evade the Chinese government’s population controls.

This explains why — as I described in 2015—out‐​of‐​county births to mainland Chinese have spiked all around the world, not just in the United States. You would think that the State Department would want to treat people thwarting Chinese totalitarianism as potential allies, rather than threats. Obviously, these women choose to give birth in the United States rather than elsewhere because they believe their children could benefit from having the option to come and live here, but it takes a bizarre sort of nativist paranoia to see this aspiration for the American dream as a threat rather than an opportunity.

The State Department cites a few instances of birth tourism companies defrauding immigrants, hospitals, and property owners, but those actions are already illegal and this rule does nothing to stop fraud. Indeed, by banning this activity, this rule will inevitably push the industry underground and lead to more fraud. Far from protecting women seeking to give birth here, it will place them in much more vulnerable situations.

This rule has no justification other than a desire to keep out foreigners. Indeed, it repeatedly cites the fear that parents of the child could eventually receive green cards when their children reach adulthood. That’s not a fear any reasonable person would treat as a security threat. In fact, the State Department notes that the birth tourists are hoping their children will eventually return to contribute to America. How is this a problem?

The State Department is denying the public the ability to comment on the rule before it becomes finalized — as all other rules must do — because it wants to avoid having to “respond publicly to pointed questions regarding foreign policy decisions.” It must be nice to have the power to harm the lives of tens of thousands of peaceful people, all without the fear of having to answer any questions about it.

Source: https://www.cato.org/blog/laughable-security-justification-cracking-down-birth-tourism

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The Trump Administration’s Travel Ban Against Women of Child-bearing Age

2020/01/24 Leave a comment

One of the initial critiques. Should a future Canadian government decide to implement a comparable measure, many of these points would apply and would need to be considered before implementation.

And it will be interesting to see if the US action diverts birth tourists to Canada, that will take some time to show up in the CIHI data:

Without any new action by Congress, the Trump administration posted a new regulation, effective tomorrow, that bans women of child-bearing age from being issued a visitor visa simply because they could be pregnant. The bottom line: a vast group of women visitors to the U.S. could be barred simply because a consular officer thinks they are pregnant or could become pregnant.  Unless they are able to overcome a new obstacle — proving to a consular officer that, just because they could be pregnant, they do not have the intention to obtain U.S. citizenship for their child by giving birth in the U.S. — millions of women could be denied access to America.

There were approximately 7 million visitor visas issued in 2018, so this rule could apply to millions of women from around the world seeking to visit our country, but not men. The first barrier to entry starts with being a woman. The second: a consular officer’s subjective guess about a women’s reproductive cycle. Third: the fact of a woman’s pregnancy or her ability to become pregnant — which is not, in fact, a bar to visiting the U.S. under the law passed by Congress.

This new rule would apply to a pregnant woman traveling with her family to Disneyland, a pregnant woman coming to the United States for a business meeting, and a pregnant woman who needs specialized medical care to save her baby’s life and her own during birth. Worse yet, the language of the new regulation is so overly-broad, it conceivably could bar any woman in her child-bearing years just because she could possibly become pregnant and have a baby while visiting the U.S. within the ten years that a visitor visa is typically valid for many foreign nationals.

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Don’t be fooled by the rhetoric of this administration. This new rule is nothing more than a new roadblock for women just because their bodies can become pregnant. This new rule very specifically states that just because a consular officer ‘has reason to believe’ a woman ‘will give birth during her stay in the United States,’ she is automatically presumed to be coming to the United States ‘for the primary purpose of obtaining U.S. citizenship for the child.’ Because the language of the new regulations is so overly-broad, it would not only cause a consular officer to ‘have reason to believe’ an eight-month pregnant woman ‘will give birth during her stay in the United States,’ it could also mean that a consular officer might have ‘reason to believe’ that a woman of any child-bearing age — approximately 30-40 years of her life — ‘will give birth during her stay in the United States.’  That is because a B visa could be granted, and often is granted, for up to 10 years. Even if a woman of child-bearing age is not pregnant on the day of her visa interview, she could conceivably become pregnant, travel to the U.S. while pregnant within the 10 years of her valid B visa, and give birth while in the U.S. during one of those visits. Therefore, a consular officer in any U.S. embassy or consulate could conceivably be banning a woman from the U.S. just because she could one day within the next 10 years be pregnant and give birth during a visit in the U.S. This new regulation is more than absurd and a clear attack on women and their bodies just because they can have babies.”

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:  “The Trump administration has effectively placed a travel ban on women of child-bearing age. Under the false pretext of national security and crime prevention, the administration has concocted a discriminatory rule which empowers overseas visa officers to deny a visitor visa to any woman the officer ‘has reason to believe’ will give birth in the U.S. Translated into plain English that means a consular officer can deny a visa to any woman of child-bearing age. So, with the stroke of a pen Trump has now given low level embassy bureaucrats effective control over women’s bodies. Clearly, any woman seeking to visit the U.S. will be placed in the humiliating position of having to convince a U.S. consular official that she’s not pregnant or going to get pregnant before she travels to the U.S. or while she’s visiting. This indefensible regulation will potentially impact millions of women who seek to travel to the U.S. for business or pleasure. Of course, like many other Trump immigration schemes, the impact of this regulation will be largely on women of color. The rule does not apply to citizens of most Western and industrialized nations who are eligible to travel to the U.S. without a visitor visa.”

The new regulation is deceptively short and simple:  

Any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child. 

But what it means is much more insidious.  

The regulation gives consular officers vast new power to establish a “reason to believe” that a woman seeking a visitor visa “will give birth during her stay in the United States.” Because there is no limit in the regulation as to what is considered a “reason to believe,” there are so many circumstances that could give rise to that “reason to believe.” Could it be that she appears pregnant during a visa interview? How would a consular officer determine that? Could it even be that any woman of child-bearing age could reasonably become pregnant and give birth in the United States during the 10 years that a typical tourist visa is valid?

As soon as that “reason to believe” is triggered, the presumption is triggered and women are then faced with the roadblock of proving that they do not have the “primary purpose of obtaining U.S. citizenship for the child.” But there is little in this regulation that explains how a woman can overcome this burden.

Moreover, this regulation is squarely aimed at women, banning women unless they overcome the presumption. But what about men who may be coming to support or accompany a woman for the birth of a child? Under the new regulation, there is no additional burden for men, just women, yet both could share the same purpose for the visit that this regulation claims to address.

Understanding the Visa Process

To understand the practical impact of this regulation it is necessary to understand how visa issuance works. After completing an online application the visa applicant is usually briefly interviewed while standing before a row of windows by a consular officer who appears behind a glass partition. During the interview, which is usually no more than a few minutes, the consular officer generally assesses the purpose of the trip to the U.S. and the applicant’s ties to her home country in an effort to determine whether or not she will return home after her temporary trip to the U.S. This regulation now permits the consular officer to legally deny a visa to any woman whom he “has reason to believe” will give birth during her stay in the U.S. because she will be presumed to be traveling to the U.S. to obtain U.S. citizenship for the child. Thus, a business executive, who is pregnant, could be denied a visa for a business meeting in the U.S., even though she has a close economic and family ties in her home country.

Furthermore, depending on the applicant’s country, visitor visas can be issued for up to 10 years. In evaluating visitor visa eligibility under this new regulation, a consular officer is now permitted to estimate whether or not there is reason to believe a woman may at some point during the validity period of a visa — up to 10 years — give birth in the U.S. If so, in addition to existing regulations that apply to both men and women seeking visitor visas, she must overcome the new presumption that she does not have the primary intention of obtaining U.S. citizenship for a child by giving birth in the U.S. to a child she may potentially have at some point in the next 10 years.

Racial Disparity

The State Department regulation specifically states that it “does not change Department of Homeland Security regulations regarding the admissibility of aliens, including Visa Waiver Program travelers.” The Visa Waiver Program allows foreign nationals to travel to the United States without first applying for a visitor visa and only foreign nationals from certain countries may use the VWP program, mainly Western and industrialized nations. Therefore, this new regulation does not apply to women who come from primarily Western and industrialized nations, but does apply to all other nations. The impact, therefore, is likely to fall squarely on women of color seeking to visit the U.S. for business or pleasure, requiring them to overcome the seemingly insurmountable burden of showing they do not intend to give birth in the U.S. for the purpose of obtaining U.S. citizenship for their child.  Women from industrialized countries face no such obstacles if they travel on the Visa Waiver Program.

Source: americasvoice.org/press_releases…

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Birth Tourism, Belts, and Braces

2020/01/23 Leave a comment

Interesting analysis of the visa screening proposal by the Trump administration and some of the implementation issues:

A news story about the likelihood of a crackdown on birth tourism by the current administration got me thinking about birth tourism as a challenge, in and of itself, and how its management is complicated by the number of migration screenings experienced by a pregnant alien woman.

Birth tourism, as my colleagues and I have argued over the years, is a problem because it not only allows instant citizenship for the infant involved, it grants immigration benefits to that child’s parents 21 years later — all without any governmental control, and all beyond the numerical ceilings that control most legal immigration. CIS has estimated that there are about 33,000 such births a year.

The news story reports that the State Department has announced that it is contemplating issuing a new regulation that a tourist visa should not be used in connection with birth tourism, and that Customs and Border Protection (CBP) may being doing the same.

Were both State and CBP to come up with such policies, how would they be enforced? This leads to my comments about the varying number of screenings that a pregnant alien could experience on her way to becoming a birth tourism mother. The more processes, the more likely the pregnancy would be noticed.

The number of barriers that an expecting mother faces would vary, to some extent, by the likelihood of her giving birth in the United States. Women arriving from China, Russia, and Nigeria, often mentioned in this connection, would have a harder time bringing this off than, say, a Canadian, but it’s unlikely that a Canadian would be interested in birthright citizenship for her expected child. (Aliens from the first three countries need visas to enter the United States; Canadians do not.)

In some cases, to use a British metaphor, there would be a single barrier (or belt) to birth citizenship, and in others there could be as many as one belt and two pairs of braces; here are the variations:

  • One belt: The mother in question is from a visa-waiver country, so she would not need a visa, she simply has to get past the immigration officer at the U.S. airport where her plane lands.
  • One belt: The mother is Canadian and needs to be admitted at a port of entry; she might be a passenger in a car, at night, with her body shape hidden in clothing.
  • One belt plus one set of braces: The mother’s nation of origin is such, say Peru, that she needs a visa to come to the United States, so she is screened once at the embassy and again at the airport.
  • One belt plus two sets of braces: That visa-bearing Peruvian woman is in China when she finds out she is pregnant; she chooses to fly to Guam to see her sister, is inspected there, and inspected again in Hawaii on her way to California, another birth tourism hot spot.

The reader will note that the proposed control of birthright citizenship is confined to people with tourist visas. Other longer-term visas are not involved. Some tourist visas are issued for multiple years, and the visa-issuance process regarding birth tourists would not be effective in those cases.

My musing about the number of barriers erected by policymakers is not just a matter of immigration trivia because one of the prime centers of birth tourism is the Commonwealth of the Northern Mariana Islands, just north of Guam. Chinese nationals, while needing a visa to come to the Mainland or Hawaii do not need one to go to CNMI; so there is only the CBP officer at the Saipan airport between them and birth tourism.

Birth Tourism Is Not for Everyone. The baby’s parents have to be financially strong enough to pay the bills, young enough to be parents, and farsighted enough to go through this whole maneuver; though my colleagues may disagree, this is not a bad combination.

Birth tourism, like the movement of immigrant investors in the EB-5 program, attracts well-to-do migrants, as family migration, generally, does not. And both birth tourism and EB-5 are apparently very attractive to well-to-do, but nervous, people from China.

EB-5 is limited to 10,000 visas a year, but there are no limits to birth tourism.

Source: Birth Tourism, Belts, and Braces

Filed under Birth Tourism, Birthright Citizenship, Citizenship Tagged with ,

Richmond Hospital set to deliver over 500 possible ‘anchor babies’ in one year

2020/01/23 Leave a comment

From the epicentre of birth tourism, a good profile on Richmond and the associated issues:

Births to non-resident foreigners at Richmond Hospital and Vancouver’s St. Paul’s Hospital have risen significantly in 2019, according to the latest interim data released by the facilities’ respective health authorities.

Both hospitals are on pace to well exceed their prior annual records of non-resident foreigners who, based on available data, are likely to be nearly all Chinese nationals engaged in a birth tourism arrangement – although it is not known explicitly.

Since 2011, in Richmond, non-resident births have risen from a few dozen per year to the point where local residents and hospital staff are voicing concerns about healthcare delivery and immigration fairness.

Over the past five years, just over 2,000 so-called “passport babies” may have been delivered in Richmond from non-resident, non-Canadian parents.

Various services are provided to prospective parents via transnational maternity businesses utilizing local rental homes as so-called “baby houses” in Richmond.

The B.C. Ministry of Health claims it is now inspecting these houses and scrutinizing diversion rates from Richmond’s busy maternity ward.

Canada is one of two Western countries, along with the United States, to offer birthright citizenship – a concept also known as jus soli – meaning babies born to two foreign nationals on tourist visas are granted automatic citizenship.

It remains unclear exactly what the federal government is doing to enact policies to curb the growing industry. To date, no enforcement measures have been announced, unlike in the U.S.

Richmond Hospital is now on pace – for the year ending April 1 – to deliver 549 newborns to non-resident parents.

From April 2019, the start of the hospital’s fiscal year, to late August 2019, Richmond Hospital delivered 221 babies from non-resident patients not enrolled in the provincial healthcare system, according to Vancouver Coastal Health. The annual average over the previous five years is 390 babies from non-residents, or 18.6% of all births.

The interim 2019 numbers show a total of 863 newborns delivered in Richmond, meaning 25.6% of births at the hospital were to non-residents. Last year (2018-19), the percentage of newborns from non-residents was a record 23.1%.

Meanwhile, St.Paul’s Hospital – B.C.’s second most popular hospital for non-residents giving birth – is on pace to deliver 177 babies from foreigners, according to Providence Health Care data from April 2019 to August 2019. That would break a record of 139 new Canadians from foreign parents set the previous year.

Nationality isn’t routinely tracked but a tabulation by Richmond Hospital officials in 2016 showed Chinese nationals accounting for 98% of non-resident births. According to some birth house operators, Richmond is a popular location for Chinese nationals due to the city’s multilingual services and proximity to China as a Western country that allows such automatic citizenship.

Former Liberal MP Joe Peschisolido decried birth tourism as “an abusive and exploitative practice” in a July 2018 petition to Parliament. Peschisolido promised action from Immigration, Refugees and Citizenship Canada; however, its minister has made no announcements on policy reform. The ministry is now studying the matter.

Prior to the Liberal petition, Conservative MP for Richmond Centre Alice Wong asked for stronger action in 2016 via her own petition to end birthright citizenship.

The Conservatives still have ending jus soli in their official policy book (adopted in 2018); however, the party remained silent on the matter during the 2019 federal election. Wong and newly elected Conservative MP for Steveston-Richmond East Kenny Chiu (Peschisolido’s replacement) stated before the election that they oppose birth tourism but support birthright citizenship. Last week, when asked to clarify his position, Chiu said his pre-election response for a debate questionnaire should have been qualified. He said those on tourist visas should not have their babies granted citizenship and the government must tread carefully to ensure people in transition to residency are not labelled as birth tourists. He acknowledges concerns over establishing a bureaucratic process, but he says many Western nations, such as Australia, have made the transition in the past.

Among respondents to a March 2019 Angus Reid poll, 64% believe children born to parents who are here on tourist visas should not be granted Canadian citizenship and 24% said they should.

Ending birthright citizenship outright in the U.S. would be more difficult as it is enshrined in the Constitution. In the 1990s, it had bipartisan support but that has waned. U.S. President Donald Trump has voiced his opposition to the practice but has only chosen stricter enforcement measures to date.

The Trump administration cracked down on baby houses in Southern California as recently as January 2019 when authorities arrested 19 people with crimes such as immigration fraud, money laundering and identity theft. The charges stemmed from evidence baby house operators helped Chinese tourists lie to border agents.

As of last month, the State Department plans to amend its regulation on temporary visitors in the “B non-immigrant visa classification” to provide that a temporary visit “does not include birth tourism.”

This will allow U.S. border agents to deny entrants if a birth tourism arrangement is suspected. In Canada, a border agent has no such powers, particularly if the person entering is honest about the arrangement and can prove sufficient funds during their stay, according to Canada Border Services Agency.

Critics – such as Megan Gaucher, professor in the Department of Law and Legal Studies at Carleton University, and Lindsay Larios, a PhD candidate in the Department of Political Science at Concordia University studying reproductive justice – have recently likened birth tourism media reports as “dangerous discourse” that may be predicated on longstanding racist and sexist immigration legacies that “perpetuate the criminalization and surveillance of racialized pregnant non-resident women.”

They say the non-resident birth data is unclear as it doesn’t discern between a wealthy birth tourist and a vulnerable temporary resident whose motives may not be so explicit.

Indeed, while national numbers on non-resident births are on the rise, it is not known explicitly how many are due to birth tourism, since motives are not known.

Discharge data obtained from the Canadian Institute for Health Information by researcher Andrew Griffiths shows uninsured, self-paying non-residents accounted for 4,099 births in Canada in 2018, whereas they only accounted for 1,354 in 2010. Ontario accounted for 2,917 such births in 2018 whereas B.C. accounted for 712.

Other than Ontario’s large population, the high number of such births there could be because a non-insured, non-resident could be a temporary foreign worker before being enrolled in public healthcare or an international student. But in B.C., international students are included in the Medical Services Plan, unlike in Ontario, meaning non-resident birth stats in B.C. are likely more reflective of explicit instances of birth tourism than in Ontario.

B.C. Minister of Health Adrian Dix says he’s been asked a number of times what he is doing about the increased number of foreigners into maternity wards in Metro Vancouver.

Dix says he’s opposed to the practice but is mindful the numbers remain relatively small – about 2% of all births in the province are to non-residents.

“Primarily, the birth tourism question is an immigration question,” Dix said.

“People get frustrated when I say that.”

He said his role as health minister is to ensure healthcare is delivered properly.

The Ministry of Health told Glacier Media, that it has investigated baby houses in Richmond, only to find no violations.

“Vancouver Coastal Health Authority inspectors have inspected presumed birth houses and found that there was no licensable care being provided, as defined under the Community Care and Assisted Living Act,” said ministry spokesperson Jean-Marc Prevost.

Dix said, “On the birth house question, if they were providing healthcare services there and not just accommodation services … they need to comply with the Community Care and Assisted Living Act – but they’re basically not” providing such services, asserted Dix.

Another concern raised by healthcare workers, such as nurses in the maternity ward, is the non-payment by non-residents.

The health authority says recovery rates are getting better – now at 92% of $5.4 million collected in the 2018-19 fiscal year at Richmond Hospital, for instance.

Richmond-Queensborough MLA Jas Johal has suggested the health authority charge a prohibitive fee for non-resident births; however, according to Prevost, this would be contrary to Section 10 of the Hospital Insurance Act, which “only allows health authorities to recover the costs of providing non-beneficiaries medical services; it provides no mechanism for charging for profit.”

That said, while fees are set on a direct cost-recovery basis, according to a ministry spokesperson in March 2018, such fees do not account for things such as the capital costs to build new hospitals (Richmond needs a new acute care tower) or the countless hours public officials and communities have put in over the decades to build a safe and regulated healthcare system.

As it stands, Vancouver Coastal Health charges $8,200 for a normal vaginal delivery and $13,300 for a C-section surgical delivery to uninsured patients.

Dix said charging above cost recovery, if it were permitted by law, would have unintended consequences, such as overcharging a person awaiting residency status and healthcare coverage or a non-resident Canadian citizen (which is rare since only one or two Canadians pay to give birth in Richmond as non-residents each year, on average).

“What you want to do is charge the cost of the care across the board and ensure that you collect the cost of care,” Dix said. “If you impose special taxes and fees, that has implications for the whole healthcare system.”

The minister also voiced concern about calls by some, such as Vancouver immigration lawyer Richard Kurland, to license and regulate the industry.

“The problem you have if you want to regulate that sector is effectively you’re officialising the role of these places, which we absolutely are not going to do – I am against this, birth tourism, and we’re dealing with it because we have to and we’re an open society and people come here – but if we want to deal with these questions you have to deal with it at the federal level.”

Nurses in Richmond have told Glacier Media, and more recently the CBC’s Fifth Estate, that non-resident patients are receiving better care. One stated to CBC this month that scheduled C-sections for non-residents are never re-scheduled, whereas local residents’ are.

Dix dismissed the allegations as well as concerns over diversions due to an overbooked maternity ward in Richmond.

“On diversion, in general this is not a significant issue” in Richmond, he said. “The biggest diversion issues I’m dealing with are in Fort Nelson or in First Nations communities.”

Vancouver Coastal Health says between April 2018 and September 2019 there were 16 diversions from Richmond Hospital and 15 diversions to it. In 2019, the authority conducted a staffing review that found the Richmond Hospital maternity ward is “staffed appropriately,” said Prevost. “They have had no capacity issues for labour or delivery in recent years.”

The health authority, via freedom of information requests, disclosed that in a six-month period in 2019, hospitals received $514,476 in cash from $3.25 million worth of maternity related charges. The health authority has been asked whether it reports to FINTRAC when receiving sums of cash over $10,000. Glacier Media has not received a response.

Source: https://www.vancourier.com/richmond-hospital-set-to-deliver-over-500-possible-anchor-babies-in-one-year-1.24058984 

Filed under Birth Tourism, Birthright Citizenship, Citizenship Tagged with ,

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