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Is Ending Birthright Citizenship Anti-Latino? By Roger Algase

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In my May 12 post: Taking Away Birthright Citizenship: First Chinese, Now Latinos?, I raised some questions about the motivations behind the movement by restrictionist legislators and organizations to revisit and possibly revoke the guarantee of automatic US citizenship to virtually every child born in the United States contained in the 14th Amendment to the Constitution and upheld in the landmark Supreme Court decision of US v. Wong Kim Ark (1898).

I did so in the context of the hearings on this issue by a subcommittee of the House Committee on the Judiciary which began on April 29, and, particularly, in the opening statement by the Judiciary Committee Chairman, Bob Goodlatte (R-Va).

My May 12 comments focused primarily on the issue of whether there was any valid reason to question whether the 14th Amendment confers automatic birthright citizenship (which I will refer to as "ABC" below) on virtually every child born in the US regardless of the parents' status (also known as jus soli). My comments also questioned whether there was any reason to doubt the prevailing consensus of opinion that the leading 1898 Supree Court Case of US v. Wong Kim Ark upholds the above broad interpretation of the 14th Amendment.

My conclusion was that the language and clear purpose of both the 14th Amendment and the Wong decision was to eliminate any vestige of the racial discrimination which was declared to be part of our citizenship laws in the Supreme Court's notorious Dred Scott decision in 1857. Therefore, any movement to revisit or reinterpret the 14th Amendment and the Wong decision has to be looked at from the standpoint of asking whether the motive is to weaken existing legal protections against racial discrimination with regard to eligibility for American citizenship.

A legal scholar, Katherine Culliton Gonzalez, persuasively argues in a recent article in the Harvard Human Rights Journal that one of the major consequences of taking away ABC would be to discriminate against US- born children of Mexican and other Latin American parentage, as well as to violate their fundamental human rights under international law.

See: Born in the Americas: Birthright Citizenship and Human Rights, 25 Harvard Human Rights Journal 127 (2012)

http://harvardhrj.com/wp-content/upl...n-Gonzalez.pdf

This article is well worth reading for anyone who is in interested in the background and significance of the Wong Kim Ark case, as well as in gaining a fuller understanding of the 14th Amendment's guarantee of birthright citizenship.

It also refutes the argument being promoted by some anti-immigrant organizations that the US is somehow out of step with the rest of the world because we recognize automatic birthright citizenship for every child born in this country, regardless of parentage.

To the contrary, this article shows that the US, and almost all of the other nations in the Americas, are more in tune with international human rights standards with regard to birthright citizenship than the countries which do not recognize. or which restrict. this basic human right.

To be continued in a forthcoming post.
______________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been representing employment based and family based immigrants for more than 30 years. He believes that every immigration case requires not only a thorough mastery and understanding of the applicable law, but also a stong committment to upholding human rights.

Roger's email is algaselex@gmail.com

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Updated 05-18-2015 at 04:17 PM by ImmigrationLawBlogs

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Comments

  1. Retired INS's Avatar
    I read the article on birthright citizenship that you attached with a link. While it appears scholarly, it is written in a manner that will convince very few people. The problems with it are:
    1. It spends too much time talking about a Human Rights Court. Americans will never take an action, or fail to take an action, because of the opinion of a non American court. To be honest, they will do just the opposite out of distrust of such courts.
    2. The article begins the American legal argument with the Dred Scott decision. This was the reason for the 14th amendment, which was passed to strengthen the Civil Rights Act of 1866, but this is not where birthright citizenship began in America. Calvin's Case in Great Britain (about 1608) set the English standard of birthright citizenship which was brought to the American colonies. Until the Civil War, the states determined citizenship in America and birthright citizenship was the norm. When we were a British colony, birthright citizenship allowed children of French and German immigrants to have the same rights as the children of English immigrants. Robert E. Lee was opposed to succession, but felt his first duty was to the State of Virginia. The civil war changed this perspective. We are now Americans first and state citizenship has changed to state residence.
    3. The CIS report is flawed. I have a copy of it and and find they fudge on the facts. They fail to point out that very few of the immigrants who are sponsored by citizen children are related to the anchor baby problem. USCIS does not keep statistics on this, but I supervised INS and USCIS officers who conducted interviews for legal residence. I asked the supervisors of these officers what percent of the petitions for parents were from anchor babies and what percent were from naturalized citizens. Everyone agreed that between 80% and 90% of such petitions were from naturalized citizens.
    4. I have many friends who belong to FAIR. Many are former Border Patrol officers. They have valid concerns, but Border Patrol agents have not been trained in the intricacies of immigration regulations relating to family petitions since the early 1970s. It was once mandatory for Border Patrol agents to leave the Patrol and spend time with regular INS before being considered for a supervisory position. That ended about 40 years ago, when I began my INS career as an immigration inspector in El Paso (1972). FAIR raises money to represent conservative points of view. I respect their point of view, but I disagree most of the time.
    5. I am a strong supporter of birthright citizenship, but I believe the case can be better made in a non-scholarly essay, and by pointing out how it will adversely affect every American family, not just immigrant families (which includes illegal immigrants).
  2. ImmigrationLawBlogs's Avatar
    Retired INS contends that Americans are not likely to follow or trust in the decisions of a foreign court relating to human rights or any other issue. I would agree, and that is why it is so curious that anti-immigrant groups such as CIS and Numbers USA are promoting the idea that the US should use foreign laws as a guide in determining whether to continue with our Constitutionally system of automatic birthright citizenship for everyone, or to change our Constitution and revoke this right.

    Why all of the sudden interest in foreign law, something that nativist organizationS in the US have never paid much attention to up to now? And which foreign citizenship laws should we use as a guide?

    Burma's for example, which is now causing a humanitarian catastrophe in SE Asia by denying birthright citizenship to a Muslim minority group which has been living in that country for generations?

    And if foreign citizenship law is so important, why not follow the birthright citizenship laws of almost every country in our own Western Hemisphere, which according to CIS itself, are similar to those of the US?

    The answer is certainly not because the US has anything to learn from the legal systems of countries such as Burma, North Korea, Zimbabwe, Iran or scores of other countries around the world which might not recognize the basic human right to universal birthright citizenship.

    To the contrary, Gonzalez' HHRJ article is full of persuasive evidence that the movement to take away universal birthright citizenship in the US is inextricably tied up with anti-Latino prejudice.

    Why are the "foreign law scholars" over at CIS, NumbersUSA and on Goodlatte's House Judiciary Committee so reluctant to hide their willingness to pander to, or even promote, anti-immigrant bigotry behind the fig leaf of "research into foreign citizenship laws"?

    Roger Algase
    Attorney at Law
    Updated 05-19-2015 at 07:00 AM by ImmigrationLawBlogs
  3. Retired INS's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Retired INS contends that Americans are not likely to follow or trust in the decisions of a foreign court relating to human rights or any other issue. I would agree, and that is why it is so curious that anti-immigrant groups such as CIS and Numbers USA are promoting the idea that the US should use foreign laws as a guide in determining whether to continue with our Constitutionally system of automatic birthright citizenship for everyone, or to change our Constitution and revoke this right.

    Why all of the sudden interest in foreign law, something that nativist organizationS in the US have never paid much attention to up to now? And which foreign citizenship laws should we use as a guide?

    Burma's for example, which is now causing a humanitarian catastrophe in SE Asia by denying birthright citizenship to a Muslim minority group which has been living in that country for generations?

    And if foreign citizenship law is so important, why not follow the birthright citizenship laws of almost every country in our own Western Hemisphere, which according to CIS itself, are similar to those of the US?

    The answer is certainly not because the US has anything to learn from the legal systems of countries such as Burma, North Korea, Zimbabwe, Iran or scores of other countries around the world which might not recognize the basic human right to universal birthright citizenship.

    To the contrary, Gonzalez' HHRJ article is full of persuasive evidence that the movement to take away universal birthright citizenship in the US is inextricably tied up with anti-Latino prejudice.

    Why are the "foreign law scholars" over at CIS, NumbersUSA and on Goodlatte's House Judiciary Committee so reluctant to hide their willingness to pander to, or even promote, anti-immigrant bigotry behind the fig leaf of "research into foreign citizenship laws"?

    Roger Algase
    Attorney at Law

    Of course people like Congressman Lamar Smith of Texas are anti-Hispanic. Lots of Texans are anti-Hispanic, but not as much as they were a few decades ago. My concern is that the average voter, or even the average Congressional staffer, would have problems reading and understanding the scholarly article on this subject. I taught citizenship law at the INS academy and I have kept up to date with the citizenship debate, but I had a hard time staying focused on the article. It was much too scholarly for me.
  4. ImmigrationLawBlogs's Avatar
    As usual, Retired INS has a good point. It is not easy to write about complex legal issues in terms that the average person can understand, let alone the average Congressman, who, one would hope, is at least as intelligent as the average citizen (but one can never be sure about that).

    But it is worth trying. I will try to summarize this article and make it more intelligible in an upcoming post. I hope I don't wind up making it sound even more technical than it already is!

    I also appreciate Retired INS's honesty about a simple, plain fact. There are still many voters in the US who are just plain anti-Hispanic, just as many voters were anti-Semitic when I was growing up.

    Many voters have always been, and still are, anti-black, especially in the South. Why pretend that this isn't true? Why pretend that our immigration system is as color-blind in practice as it would appear to be on paper?

    Roger Algase
    Attorney at Law
    Updated 05-20-2015 at 02:11 PM by ImmigrationLawBlogs
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