Birth tourism raids spark debate about citizenship, the 14th Amendment

March 29, 2015
Updated March 30, 2015 6:45 a.m.IEW SLIDESHO
Federal agents return to a command post after executing search warrants and interviews of pregnant Chinese nationals inside an Irvine upscale apartment complex on March 3 in hopes of finding witnesses to prosecute online birth tourism businesses.KEN STEINHARDT, FILE PHOTO

BY ROXANA KOPETMAN / STAFF WRITER

Landlords can't discriminate

In the aftermath of federal raids on residences in Orange, Los Angeles and San Bernardino counties, the California Apartment Association put out a news release stressing that landlords cannot legally deny tenancy based on someone's immigration status.

California Fair Housing laws make it illegal to ask about immigration status, nationality, pregnancy and medical issues related to pregnancy. Anti-discrimination laws ensure that management companies and landlords "do not snoop or spy on renters," the release said.

But if the tenants engage in illegal activities or are in violation of lease and house rules, such as creating a nuisance or being loud after a certain hour, then management companies can look into those complaints, said Tom Bannon, the association's chief executive.

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It didn’t take long. News of a federal raid in Irvine and other Southern California cities ignited stinging complaints against Chinese companies bringing expectant mothers to give birth on American soil.

There oughta be a law, Orange County readers said in calls and letters to the Register.

There is. It’s the 14th Amendment.

“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.”

That’s pretty clear to many. If you’re born in the United States, you’re a citizen of the United States.

But some argue the 14th Amendment has been misinterpreted and needs to be changed in ways that reflect the political and technical realities of the 21st century.

“It is time to scrap this poorly conceived piece of legislation, which continues to cause problems with visa fraud and with the ‘anchor babies’ of illegal immigrants,” wrote Irv Kettering of Anaheim.

Marti deMetropolis of Huntington Beach said: “Demand that the 14th Amendment be used as it was intended.”

Long before some 200 federal and local agents raided three dozen residences in Orange, Los Angeles and San Bernardino counties on March 3, the debate was raging in some quarters.

As recently as last week, Sen. David Vitter, R-La., offered an amendment to a resolution that would give birthright citizenship only to the children of at least one U.S. citizen or legal resident alien.

It was the second time he’s tried to attach an amendment since the crackdown in Southern California. Vitter has introduced similar laws since 2011.

HISTORY

The 14th Amendment was adopted in 1868 in the aftermath of the U.S. Civil War and aimed at conferring full citizenship to black Americans.

Among the cases that addressed citizenship was an 1898 case, where the U.S. Supreme Court considered the 14th Amendment in its ruling that a child born in the United States of Chinese parents was a U.S. citizen.

Then came the Indian Citizenship Act of 1927, which conferred citizenship to all of America’s indigenous peoples living in tribes.

“This is such a basic aspect of law,” said Erwin Chemerinsky, dean of the UC Irvine School of Law. “The plain language of the amendment makes it clear that anyone born in the United States is an American citizen.”

John C. Eastman, former dean of the Chapman University School of Law, argues that over the decades the law’s language has been misinterpreted and broadened.

“We don’t need to change the 14th Amendment. We just need to understand it properly,” said Eastman, director of the Center for Constitutional Jurisprudence with The Claremont Institute.

Some of the debate has circled around the clause “subject to the jurisdiction thereof,” which opponents of birthright citizenship say does not extend to the children of people who crossed into the country illegally.

There are some 11.5 million immigrants residing in the United States without legal authority. They are at the vortex of controversial presidential executive actions and congressional proposals.

Birthright citizenship is blamed by many as a magnet that attracts immigrants to cross the border illegally and put down roots in the United States.

There are about 4.5 million U.S.-born children whose parents are unauthorized, according to 2010 Pew Research Center figures.

The Center for Immigration Studies, a Washington, D.C.-based group that supports lower levels of immigration, estimates there are roughly 40,000 birth tourists each year from China, Nigeria, Turkey and other countries.

LEGISLATIVE FIXES

There have been numerous attempts in Congress to address birthright citizenship.

The latest came from Vitter and Rep. Steve King, R-Iowa, who introduced bills this year that would allow a child born on U.S. soil to become a citizen only if at least one parent is a citizen or a permanent legal resident or an immigrant serving in the U.S. military.

Last week, Vitter offered an amendment to the fiscal budget resolution that would do away with birthright citizenship. On March 10, Vitter attached a similar amendment to an anti-human trafficking bill. Neither of those attempts came to a vote, but both came in response to the federal crackdown in Southern California against three companies that collect money from expectant mothers from China who travel here with the intent of giving birth to American babies.

Unlike other groups who cross illegally in search of a brighter, permanent future in the U.S., many of the Chinese women are wealthy and return home after giving birth. They want their children to have American citizenship for a variety of reasons, including college opportunities and the flexibility of living in the United States if they choose it down the road.

“It’s astounding that we’re allowing foreign citizens to exploit the loopholes of our immigration system in this manner, and Congress has the obligation to stop it,” Vitter said in a news release.

Dennis Parker, director of the American Civil Liberties Union Racial Justice Project, said most of periodic attempts to change the 14th Amendment are “directed at particular racial or ethnic groups.”

He argues that changes to the law could lead to a caste system in the United States.

“As a matter of fairness and equality, which is what the country is theoretically based on, the idea of creating a hierarchy, or having some people treated differently, is repugnant,” Parker said.

AROUND THE WORLD

American citizenship also is automatically granted to a child born to U.S. parents living abroad, and to children born in an American territory, such as Puerto Rico or Guam.

Texas Sen. Ted Cruz, who recently announced that he’s running for president, was born in Canada but is an American citizen because his mother was an American.

In U.S. territories like the Northern Mariana Islands, U.S. Rep. Gregorio Kilili Camacho Sablan and Gov. Eloy Inos have suggested to Homeland Security that officials consider airline pre-screening of in-bound passengers to be sure they are entering the Northern Marianas as tourists or for other legitimate purposes, and not to give birth.

It is cheaper and closer to China to travel to the island of Saipan, a U.S. commonwealth in the Pacific, than it is to pay for a birth in a popular destination like Southern California. The birth rate among Chinese tourists in Saipan grew from a handful to nearly 300 between 2010 and 2012, according to news reports.

Although it is not illegal for a foreigner to give birth in the United States, agents with U.S. Customs and Border Protection ask visibly pregnant tourists when they plan to deliver and how long they plan to stay in the U.S. Entry is allowed or denied at the discretion of the admitting officer, according to the Department of Homeland Security.

In other countries, the rules vary:

• In France, a child is French if at least one parent was also born in France, although there are exceptions.

• In Germany, a child born to a German citizen or long-term residents has birthright citizenship. Otherwise, newborns qualify if their parents have lived in the country for at least eight years and either have a legal permanent German resident permit or have citizenship in another European Union country. There are exceptions.

• In Britain, a child whose parents are not British citizens may register as a British citizen as a minor if either parent becomes a citizen during that time; if a parent becomes a member of the British armed forces; or if the child has lived in the U.K. for the first 10 years of his or her life with limited travel outside the country.

Some countries have laws or policies that prohibit or limit a mother – but not a father – from passing citizenship to a child.

There are 27 countries in which men and women do not have equal rights to pass citizenship to their children or a non-citizen spouse, according to a 2014 Pew Research Center report. The restrictions are most prevalent in the Middle East and North Africa.

THE MOMS

Back in Orange County, most of the women whose temporary homes were raided have left the Irvine apartment complex where they resided and moved to other locations nearby.

They are “fully cooperating” with a federal investigation, said Irvine attorney Ken Z. Liang, who represents seven of the women. Several of them, he said, have been interviewed by investigators and have turned over copies of contracts and other documents from the company they hired to arrange for their stay, food, maternity visits and special outings in Southern California.

Investigators are looking to build a case against three companies that brought the women to California, including charges of visa and tax fraud, money laundering and conspiracy. No charges have been filed.

The women, meanwhile, want to go back to China after they give birth, but they’re are stuck waiting to see what the government does next with its investigation.

Those designated as material witnesses cannot leave.

“It’s pretty rough for them,” Liang said Friday.

Since the raids, two of his clients have given birth to American babies.

Contact the writer: 714-796-7829, rkopetman@ocregister.com and @roxanakopetman

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