Citizen by birth? Perhaps not
The Arizona Republic
Nov. 25, 2005

GOP out to alter law on migrants' babies

Daniel González

Cecilia and José Flores are awaiting the birth of their first baby any day now. They know it's a girl, but they haven't decided on a name. Cecilia favors Susana or Ana Belen. When she's born, their baby will be a U.S. citizen even though Cecilia and José, natives of Mexico, are both undocumented immigrants living in the country illegally.

The baby will be just one among about 15,000 babies born to undocumented mothers this year in Arizona and granted automatic citizenship.

Some Republican members of Congress want to end the long-standing policy of birthright citizenship, which is rooted in the 14th Amendment of the U.S. Constitution. They say birthright citizenship encourages illegal immigration and jeopardizes national security. For years, proposals in Congress to end birthright citizenship have gone nowhere, lacking both the votes and the political will to try to amend the constitution.

But lately, the idea is getting more attention as Congress grapples with ways to solve illegal immigration. Those who favor ending birthright citizenship believe they can use legislation to accomplish their goal without amending the Constitution. They say denying automatic citizenship can be accomplished because the 14th Amendment has been misinterpreted.

Gaining U.S. citizenship for their children is not really why undocumented immigrants such as Cecilia and José Flores come to the United States, though it's one of the main reasons they stay.

'Anchor' babies
Critics call children born to undocumented immigrants "anchor" babies because when they turn 21, they can sponsor their parents for legal permanent residency. Under U.S. immigration laws, neither José nor Cecilia is eligible to apply for legal residency. So when their daughter turns 21, she presumably will be able to sponsor them for legal permanent residence. But Cecilia and José said they crossed the border illegally to find work and join family, not to create one. They didn't know each other before coming to the United States. Their baby is due Dec. 10.

Nearly one in five babies in Arizona is born to a mother living in the country illegally, according to a study of 2002 birth records and other government data by the Center for Immigration Studies, a Washington, D.C., think tank that favors tighter restrictions on immigration.

Only California has a higher share of babies born to undocumented parents. The center estimates that in 2002, there were 383,388 babies born in the United States to undocumented mothers, or about one in 10 births.

 Cecilia and José are uneasy about the prospect of birthright citizenship coming to an end and worry citizenship could be stripped from their soon-to-be-born daughter, even though those trying to end birthright citizenship say the proposal would apply only to babies born after it would pass.

he couple, who asked that their full names not be used out of fear they could lose their jobs or face deportation, live in a small apartment in north Phoenix. The apartment is furnished with an entertainment center, a comfortable sofa and a small kitchen table with a doily on top. Cecilia, 28, is from Acayucan, a town in the Mexican state of Veracruz. She crossed the border illegally eight years ago near Nogales, and then came to Phoenix, joining two brothers already here.

She met José, 27, two years ago at a disco on Van Buren Street in Phoenix. He works as a cook in a restaurant. Originally from Salamanca, Guanajuato, in central Mexico, he first crossed the border illegally 12 years ago.

Cecilia said she didn't come to this country with the intention of starting a family. Her idea was to work for a year, save her money and then return to Mexico to complete her teaching degree. But the money she earned working two jobs, cleaning hotel rooms during the day and offices at night, was too good. Most recently, she was working as a food preparer at a restaurant but quit when she found out her pregnancy was delicate.

"There are people who think we come here to have a baby to receive help from the government, when in reality that's not true," Cecilia said.

The lack of good job opportunities in Mexico drove them to come to the United States, Cecilia and José said. Cecilia said she could make more money here cleaning hotel rooms or working at a restaurant than as a teacher in Mexico.

Even with so much time invested living and working in the United States, they still dream of returning to Mexico someday, despite the hardships.

 "We miss the culture and the customs," Cecilia said. But with a baby on the way, Cecilia and José seem unlikely to return to Mexico. The United States will be their daughter's country, not Mexico. And as a U.S. citizen, the baby will have far more opportunities here than in Mexico, they said.

"I would like to give her the best education possible," Cecilia said.

14th Amendment
The 14th Amendment makes no mention of illegal immigration, so whether it applies to children of undocumented immigrants such as the Floreses is up for debate. Congress and the states approved the amendment in 1868, primarily to give citizenship to freed slaves following the Civil War.

It states in part, "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States." For over 100 years, that sentence has been interpreted by the courts to mean that all children born on U.S. soil are automatically citizens, except the children of foreign diplomats.

 As a result, most lawmakers and legal experts have believed ending birthright citizenship would require amending the Constitution, a nearly impossible task because it would require a two-thirds vote by both the Senate and House and then approval by three-fourths of the states.

But some House Republicans say amending the Constitution may not be necessary to end birthright citizenship. They suggest the 14th Amendment was never intended to apply to the children of undocumented immigrants and, therefore, birthright citizenship could be ended through legislation.

"I'm all in favor of people from other countries becoming U.S. citizens, but I don't know that it is appropriate to become a citizen automatically just by having the parents come into this country illegally and then be born here," U.S. Rep. John Shadegg said. Shadegg is one of 69 co-sponsors of legislation to deny citizenship to children of undocumented immigrants. The proposal is gaining favor with those who want to clamp down on illegal immigration through stricter enforcement and even with those who favor a large-scale guest-worker program, two sides that don't usually agree on the issue.

If babies born to immigrants working in the United States on temporary visas were not afforded automatic citizenship, some members of Congress might be more inclined to support a guest-worker program.

To boost their cause, Shadegg and others point to the work of John Eastman, a law professor at Chapman University School of Law in Southern California. In September, Eastman testified in front of the House Immigration, Border Security and Claims Subcommittee that the 14th Amendment has been misinterpreted and warned that in the post 9/11 world, giving citizenship to everyone born in the country could be dangerous. In Eastman's view, the words "subject to the jurisdiction thereof" suggest the 14th Amendment does not apply to children of undocumented immigrants because their parents are living in the United States illegally.

"It's that second clause we have forgotten about," Eastman said.

It's an interesting argument, said Paul Bender, who teaches constitutional law at Arizona State University. But in his view, it doesn't hold water. Though the amendment was ratified primarily to give citizenship to freed slaves, the framers included a broad definition of national citizenship because the nation was expanding and needed immigrants to help build the country, Bender said.

"It seems to me quite clear (ending birthright citizenship) would require an amendment to the Constitution. You can't do it by legislation," Bender said. Even if it could, "there isn't a single Democrat in Congress who would support it," said Mark Krikorian, executive director of the Center for Immigration Studies. Without tighter enforcement, ending birthright citizenship could make illegal immigration worse by adding 400,000 undocumented babies to the population each year.

Tough choices
Cecilia and José Flores doubt ending birthright citizenship will keep undocumented immigrants from coming to the United States because most come for jobs, not to have babies. For the same reason, they doubt ending birthright citizenship will motivate those already here to leave.

In their case, the possibility exists that one day they could be deported, even though their daughter will automatically become a U.S. citizenship when she is born. Should that happen, the Floreses would face a choice, taking their U.S.-born daughter with them back to Mexico or leaving her here with relatives. José said the choice would be easy.

"A child should be with her parents," he said. They hope undocumented immigrants will never have to make decisions based on whether their children are citizens.

From their point of view, their baby deserves to be a U.S. citizen, even though they are living in the country illegally.

"We work hard and contribute to the economy," José said. "It's because of us, the immigrants, that this country is growing. Every day we are building more houses, more buildings, more golf courses."

Added Cecilia, "This is a country that is always promoting human rights. To deny citizenship to a defenseless child who had no say in being born here would be absurd. It would be unjust."

In the meantime, they are preparing for the arrival of their baby, buying baby clothes and stocking up on diapers. And picking a name.

Reach the reporter at or (602) 444-8312.