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Anti-Immigrant Agenda's Next Target: American Children. By Roger Algase

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There was a famous saying about wartime Germany:

"First they came for the Communists and I was silent, because I wasn't a Communist. Next they came for the Jews and I was silent, because I wasn't a Jew.

Then they came for me."

I must start by emphasizing emphatically and categorically that there is no comparison whatsoever between the goals of America's immigration opponents, which are merely to limit or reduce immigration, and the goals of the Nazi movement, one of the greatest evils, if not the greatest, in all of human history, which not only tried to exterminate at least two entire races of people from the face of the earth (Jews and Roma - "Gypsies") and engaged in inhuman persecution of millions of other people in occupied Europe, but wanted to put an end to human civilization as we know it.

But for those of us who support more, rather than less immigration, there may be a parallel in our reaction to the attacks against a fair and open immigration system coming from America's right wing, and the failure of opponents of Germany's rulers to speak out. As the above saying points out, it is all too easy to think that it is only someone else who is under attack, not oneself.

In the case of America's anti-immigrant movement, it has been common for many Americans and immigrants alike to think that the target is limited primarily to unauthorized immigrants, i.e. people who have entered the US without permission or who entered legally, but overstayed their visas.

See, for example, a powerful 25-page report by the Alliance For Citizenship dated May, 2015 entitled:

The 2015 GOP Mass Deportation Agenda: An Overview of Anti-Immigrant Attacks by the 114th Congress

(Sorry, I do not have a URL for this report; please use Google.)

Yet, despite all the indications in the above report and the articles mentioned below that support for mass deportation is only part of a larger anti-immigrant agenda, many immigrants who are in the US with legal visas tend to look at the "illegals" as merely a nuisance or a hindrance to reform, because, after all, they have broken the law, haven't they?

And besides, most "illegals" are regarded as uneducated and unskilled, so it is understandable that, say, a senior computer engineer seeking an H-1B job paying a six-figure annual salary (and, yes, many H-B jobs do pay high salaries) might not feel much in common with a Mexican restaurant worker who came across the Southern border without permission. But, as we are now finding out more and more, the same people who have built their political careers advocating for mass deportation of unauthorized, unskilled immigrants are now going after legal, skilled immigrants, especially with regard to H-1B visas.

A prime example, of course, is Senator Jeff Sessions (R-Alabama) one of America's fiercest advocates of mass deportation for unauthorized immigrants, who is now leading the charge against legal H-1B skilled workers as chairman of the Senate Judiciary Committee's Subcommittee on Immigration. One of POLITICO's top immigration reporters, Seung Min Kim, writes the following in her March, 2015 article The Senate's Anti-immigration Warrior:

"Sessions has long been a critic not just of legalizing undocumented immigrants but of allowing more immigrants into the United States at all - a view to which many in the GOP take exception."
...

"But the fourth term Senator is quickly moving on from defeat [in his attempt to block Obama's executive action for unauthorized immigrants] to his next crusade: attacking high skilled immigration."

http://www.politico.com/story2015/03...on-115777.html

For an even less charitable assessment of Senator Sessions, see Matt Hildreth in America's Voice, April 18, 2013, Anti-Immigrant Senator is leading the Gang of Hate. Who else will join him?

http://americasvoice.org/blog/anti-i...will-join-him/

But the anti-immigrant right (which does not by any means include all Republicans - there are many fair, moderate Republicans who genuinely care about immigration reform and want it for the good of their own party) is not only going after immigrants, whether illegal or legal. It is now targeting Americans too, at least American children. See Huffington Post, April 29,

House Republicans Go After Birthright Citizenship

http://huffingtonpost.com/2015/04/29...n_7174686.html

According to the above article, opponents of birthright citizenship are arguing that granting citizenship at birth to US-born children of unauthorized immigrants is based on a misunderstanding of the 14th Amendment to the Constitution.

But the hoary old argument that the 14th Amendment can be interpreted to grant birthright citizenship only to the children of legal immigrants (or even just to children of lawful permanent residents or US citizens - as some of the most extreme immigration opponents are advocating) was thrown out 117 years ago by the US Supreme Court in US v. Wong Kim Ark, 169 US 649 (1898).

In that case, which was decided in one of the worst periods of anti-immigrant prejudice in all of US history, but still refused to make American-born children victims of that prejudice, the Court held that the US-born child of Chinese parents was an American citizen at birth, even though his parents were barred by law from ever becoming US citizens themselves.

While it is true that the concept of birthright citizenship for every child born in the US (except for children of foreign diplomats) is not spelled out in the 14th Amendment as clearly as it might have been, and that it depends almost entirely on this single US Supreme Court decision (from which two of the Justices dissented for openly racial reasons, according to their dissenting opinion), it should be virtually unthinkable that even today's right wing Supreme Court would overturn this decision and thereby take away citizenship retroactively from tens of millions of Americans over the last century and a quarter (or so one would hope - with today's reactionary Supreme Court majority, almost anything could be possible).

Yet, House Judiciary Committee Chairman Bob Goodlatte (R-Virginia), whose committee is reportedly considering, or has already approved, harsh bills against unauthorized immigrants, is quoted in the Huffington Post as saying:

"The question of whether our forefathers meant for birthright citizenship in all circumstances to be the law of the land is far from settled...In any event, we must still determine if it is the right policy for America today."

"Far from settled'"? Has Goodlatte, a former immigration lawyer, never heard of or read Wong Kim Ark?

It is easy to see why Nancy Pelosi, according to the Huffpost, accused those Republicans (who do not speak for all Republicans, by any means) who support taking birthright citizenship away from millions of American children of pandering "to the most radical, anti-immigrant corners of their party", with "one of the most loathsome, xenophobic proposals in recent memory." (Bold added.)

First, immigration opponents wanted to impose mass deportation on 11 million men, women and children without exception. Next, they wanted to end or drastically reduce skilled worker legal immigration. Now, they also want to take away citizenship from millions of American children. Which Americans will they go after next?

Hint: there is an answer to the last question: all Americans, or at least those who come into almost any contact with immigrants - see my forthcoming post.
______________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been helping employment-based and family-based immigrants overcome the obstacles of our complex immigration system and achieve their goals of living and working in America for more than 30 years.

Roger welcomes comments and questions at algaselex@gmail.com


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Updated 05-01-2015 at 04:46 AM by ImmigrationLawBlogs

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  1. Retired INS's Avatar
    Wong Kim Ark's parents were here legally as merchants, so your argument won't impress those stupid enough not to believe in birthright citizenship. The 14th Amendment was needed for two reasons: (1) to overturn the Dred Scott Supreme Court decision that said no Black person could ever be a citizen; and (2) to strengthen the Civil Rights Act of 1866 which granted citizenship to those born in the United States. Your argument should focus on reason #2. The Civil Rights Act of 1866 did not include children of foreign visitors. There were no illegal aliens in 1866, but there were temporary visitors, and their children did not gain U.S. citizenship if born in America. The 14th Amendment ended this provision in the 1866 law that excluded the children of temporary visitors. It included all person born in the U.S. except those not subject to the jurisdiction of the U.S. Those not subject to the jurisdiction of the U.S. in 1868 (when the 14th Amendment was adopted) were: (1) children of foreign royalty or diplomats; (2) children born on foreign military vessels in American waters or at an American port (including friendly foreign military); (3) children born to an invading army (Mexicans are not an invading army even though many Republicans would disagree); and (4) Native Americans not taxed - meaning Indians living on a reservation and not under the jurisdiction of the state or territory where the reservation was located (this changed in 1924).

    I am one of those few republicans who believe in birthright citizenship because I think I understand the Constitution and the 14th Amendment.
  2. ImmigrationLawBlogs's Avatar
    Retired INS's analysis of the 14th Amendment's birthright citizenship provision makes a great deal of sense and is one of the best and most straightforward that I have ever seen. The phrase "subject to the Jurisdiction" [of the United States] should have been given its plain meeting at the time the amendment was passed, as Retired INS suggests.

    Moreover, someone in the US illegally is subject to the jurisdiction of the US, as everyone who has ever been in removal proceedings has found out the hard way.

    Unfortunately, that was not the way that the Supreme Court approached this phrase in Wong Kim Ark. Instead, both the majority and the dissenting Justices went off into a lengthy discussion of the meaning of "jurisdiction" under English common law, often confusing it with the term "allegiance".

    This allowed opponents of birthright citizenship to argue that if the parents of a US-born child owed "allegiance" to a foreign nation, i.e. by being citizens of a foreign country, they could not be subject to the "jurisdiction" of the United States.

    This is an absurd argument. The word "jurisdiction" comes from ancient Roman times, and literally means "saying what the law is". Ancient Roman tribunals had no compunctions about telling non-Roman citizens what the law was and enforcing it accordingly.

    Nevertheless, the numerous English and early American decisions discussed in Wong Kim Ark injected the basically irrelevant concept of allegiance into the discussion, and the majority decision could have easily turned out the other way.

    I look at Wong Kim Ark as reaching the right result for the wrong reasons. The danger is that the current reactionary Supreme Court majority, if it wished, could decide to revisit Wong Kim Ark and revive the nonsensical argument about jurisdiction being dependent on "allegiance".

    Then, for example, Justice Scalia, who butchered the the Second Amendment by disconnecting the concept of "bearing arms" from that of being in a "militia" - something that would have amazed Julius Caesar, who clearly shows the connection between the two in his Gallic Wars - could proceed in a similarly ignorant and uneducated manner to rule, against 2,000 years of precedent, that jurisdiction does mean "allegiance" and thereby deprive millions of American children, past and present, of their birthright citizenship.

    Could something like this actually happen? I wouldn't put it past a court which has already thrown out gun control, campaign finance control and minority voting rights, and may do the some next month with the ACA, using similarly twisted logic in order to impose a purely political extreme right wing agenda.on this nation.

    Roger Algase
    Attorney at Law
    Updated 05-01-2015 at 04:27 AM by ImmigrationLawBlogs
  3. Retired INS's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Retired INS's analysis of the 14th Amendment's birthright citizenship provision makes a great deal of sense and is one of the best and most straightforward that I have ever seen. The phrase "subject to the Jurisdiction" [of the United States] should have been given its plain meeting at the time the amendment was passed, as Retired INS suggests.

    Moreover, someone in the US illegally is subject to the jurisdiction of the US, as everyone who has ever been in removal proceedings has found out the hard way.

    Unfortunately, that was not the way that the Supreme Court approached this phrase in Wong Kim Ark. Instead, both the majority and the dissenting Justices went off into a lengthy discussion of the meaning of "jurisdiction" under English common law, often confusing it with the term "allegiance".

    This allowed opponents of birthright citizenship to argue that if the parents of a US-born child owed "allegiance" to a foreign nation, i.e. by being citizens of a foreign country, they could not be subject to the "jurisdiction" of the United States.

    This is an absurd argument. The word "jurisdiction" comes from ancient Roman times, and literally means "saying what the law is". Ancient Roman tribunals had no compunctions about telling non-Roman citizens what the law was and enforcing it accordingly.

    Nevertheless, the numerous English and early American decisions discussed in Wong Kim Ark injected the basically irrelevant concept of allegiance into the discussion, and the majority decision could have easily turned out the other way.

    I look at Wong Kim Ark as reaching the right result for the wrong reasons. The danger is that the current reactionary Supreme Court majority, if it wished, could decide to revisit Wong Kim Ark and revive the nonsensical argument about jurisdiction being dependent on "allegiance".

    Then, for example, Justice Scalia, who butchered the the Second Amendment by disconnecting the concept of "bearing arms" from that of being in a "militia" - something that would have amazed Julius Caesar, who clearly shows the connection between the two in his Gallic Wars - could proceed in a similarly ignorant and uneducated manner to rule, against 2,000 years of precedent, that jurisdiction does mean "allegiance" and thereby deprive millions of American children, past and present, of their birthright citizenship.

    Could something like this actually happen? I wouldn't put it past a court which has already thrown out gun control, campaign finance control and minority voting rights, and may do the some next month with the ACA, using similarly twisted logic in order to impose a purely political extreme right wing agenda.on this nation.

    Roger Algase
    Attorney at Law

    I was not looking at a Supreme Court revisit of Wong Kim Ark, but a bill by Congress taking away birthright citizenship from children whose parents are not citizens or legal residents of the United States. I believe Wong Kim Ark was decided differently because: (1) there were no real illegal aliens in 1895 other than Chinese who were banned from immigrating; and (2) Wong Kim Ark was Chinese and Chinese were ineligible to naturalize and were banned from immigrating, although they could come as temporary visitors. Customs would not have detained Wong Kim Ark if he had been European.
  4. ImmigrationLawBlogs's Avatar
    As I understand Retired INS's point, Wong Kim Ark's protection of birthright citizenship does not extend to the children of people who are in the US illegally, because the plaintiff, Wong, was not the child of illegal immigrants himself (and, as Retired INS points out, there may have been no such thing as an "illegal" immigrant under US law at the time of Wong's birth).

    I respectfully suggest that even though Retired INS has obviously read the Wong case carefully, something which I doubt that Chairman Bob Goodlatte or many other opponents of birthright citizenship have ever done, he has misunderstood the extent of the Wong case's holding.

    Nowhere did the Wong Kim Ark decision say that it was limited to the particular facts of that case. (In that respect, it differed from a much more recent and better known decision on a different issue, handed down 102 years later, known as Bush v. Gore)!

    Bur few decisions in the Supreme Court, or any other court, are expressly limited to the exact facts of the case at hand. If that were the case, very few judicial decisions would have any value as precedents at all.

    To take some well known examples, Brown v. Board of Education (1954) would only have abolished racial segregation in the particular Kansas school district involved in that case, not the entire United States, if it had been limited to its facts.

    Justice Scalia's notorious decision abolishing gun control, which as I pointed out earlier, should have been laughed out of court by anyone who had read Julius Caesar in a first year Latin class, would have been limited to the District of Columbia only.

    That is not the way our system of legal precedent decisions works. Instead, we look to the actual language of the holding to see what it circumstances it applies to. In the Wong case, the holding was that birthright citizenship applies (except for the expressly mentioned exceptions) to all children born in the United States. Nothing in the decision limited this holding to children of parents who were in exactly the same circumstances as Wong's parents at the time he was born.

    Moreover, even though there may have been no such thing as an illegal immigrant at the time of Wong's birth, there were plenty of such people at the time that the Wong case was decided in 1898, thanks to the infamous Chinese exclusion laws which had been passed in the meantime.

    But nothing in the Wong decision stated that its holding of universal birthright citizenship for US-born was limited to children of UC citizens or of immigrants who were in the US legally.

    That is why simply passing a law restricting birthright citizenship to the children of US citizens or legal immigrants would be unconstitutional, unless Wong Kim Ark is expressly overturned by the Supreme Court, or even less likely, by a Constitutional amendment.

    I suspect that most, if not all, of the proponents of bills limiting birthright citizenship are aware of this (even if they have not actually read the Wong Kim Ark decision) and know that they are only making an empty political gesture.

    Roger Algase
    Attorney at Law
    Updated 05-01-2015 at 07:33 AM by ImmigrationLawBlogs
  5. Retired INS's Avatar
    I understand the decision in Wong Kim Ark protects birthright citizenship, but many members of Congress don't understand this. Some have put forth the argument that the author of the 14th Amendment never intended to grant birthright citizenship to those born in the U.S. whose parents are not citizens or residents. The Wong Kim Ark case does not address this issue and therefore I wanted to show that it doesn't matter what the author of the 14th Amendment intended. The wording was entirely different than the wording in the 1866 Civil Rights Act and leaves no doubt anyone subject to arrest in the United States can be the parent of a citizen child, regardless of immigration status.

    As a former INS agent, I find that birthright citizenship is much easier to prove than any of the proposals being suggested to change the 14th Amendment. A birth certificate is currently proof of citizenship. If a change were made requiring parents to be citizens or legal residents, the birth certificate would not be enough. Every child born in the U.S. (even the Congressman's children) would need to obtain a Certificate of Citizenship to prove citizenship. At a cost of $600 per child, this would be a burden on many families. Of course, poor families could get a fee waiver, but those above the poverty guidelines would have to pay. How ironic, many children of democrats would get fee waivers while the republican parents would have to pay the $600 for every child. I'm surprised President Obama has not endorsed the republican plan to raise revenue from republicans - it would be a brilliant move before leaving office.
  6. ImmigrationLawBlogs's Avatar
    While the Wong Kim Ark court did not specifically discuss the issue of US-born children of illegal immigrants, nothing in the decision excludes such children from the scope of its ruling that virtually all US.born children are automatically US citizens at birth under the 14th Amendment.

    Let us suppose for a moment that the facts had been different and that Wong's parents had actually been in the US illegally at the time of his birth. In that case, the Supreme Court would have had to decide the specific question whether someone in the US illegally was "subject to the jurisdiction" of the US.

    At the time Wong was decided, in 1898, hundreds, if not thousands, of Chinese citizens and citizens of many other countries were beig excluded or deported on the grounds that they had entered the US illegally, or were trying to do so.

    Angel Island was a busy place. How could our courts or immigration officials have kicked all these people out if they were not "subject to the jurisdiction" of the US?

    This is why I believe that overturning Wong Kim Ark would be a tough row to hoe, even for Justice Scalia.

    Roger Algase
    Attorney at Law
  7. Retired INS's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    While the Wong Kim Ark court did not specifically discuss the issue of US-born children of illegal immigrants, nothing in the decision excludes such children from the scope of its ruling that virtually all US.born children are automatically US citizens at birth under the 14th Amendment.

    Let us suppose for a moment that the facts had been different and that Wong's parents had actually been in the US illegally at the time of his birth. In that case, the Supreme Court would have had to decide the specific question whether someone in the US illegally was "subject to the jurisdiction" of the US.

    At the time Wong was decided, in 1898, hundreds, if not thousands, of Chinese citizens and citizens of many other countries were beig excluded or deported on the grounds that they had entered the US illegally, or were trying to do so.

    Angel Island was a busy place. How could our courts or immigration officials have kicked all these people out if they were not "subject to the jurisdiction" of the US?

    This is why I believe that overturning Wong Kim Ark would be a tough row to hoe, even for Justice Scalia.

    Roger Algase
    Attorney at Law
    I agree with you, however, that does not stop stupid Congressman from proposing laws to limit birthright citizenship. Birthright citizenship is what set America apart from the Spanish colonies. It dates back to the 1600s in England with Calvin's Case (or earlier with some English laws). Children of French and Dutch immigrants in places like New York were now British citizens and equal to anyone else born in the colonies. In Mexico, children of the Spanish, born in Mexico, were 2nd class citizens, and all other children born in Mexico were in an even lower class. Birthright citizenship is not the problem we face. Anchor babies are really very few in number. Of the 120,000 parents of U.S. citizens who immigrated in 2013, more than 100,000 were the parents of naturalized citizens, and were not the result of an anchor baby.
  8. ImmigrationLawBlogs's Avatar
    This is a good point. If America were to restrict birthright citizenship only to a certain class or classes of children, we would be abolishing one of our oldest and most vital traditions - one which truly makes America America.

    Let us hope that our nativist politicians will back away before trying to do something so Un-American!

    Roger Algase
    Attorney at Law
    Updated 05-01-2015 at 05:02 PM by ImmigrationLawBlogs
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