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Taiwan "Birth Tourist" Sent Back From US Without Newborn Baby. By Roger Algase

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The attacks against so called "birth tourism" by Chinese women on the part of Jeb Bush and other politicians in what even Donald Trump has called an example of anti-Asian prejudice* have led to severe consequences for one woman from Taiwan. CBS reports that the woman, known only as "Jian", gave birth in midair over Alaska on a China Airlines flight to the US after allegedly concealing her pregnancy from airline officials.

According to the report, she was denied admission to the US after the plane landed at Anchorage and was sent back to Taiwan without her baby, who appears to have been born in US airspace and is therefore an American citizen. See:

What was the legal authority for taking the drastic step of sending the mother back and separating her from her new-born child? She may have concealed her pregnancy from the airline, though one has to wonder how that could have been possible, but was there any evidence that she concealed it from US immigration officials?

When she arrived at the airport in Alaska, the baby had already been born, so it would have been impossible to lie about her pregnancy to the CBP. And suppose she had misrepresented her pregnancy, say, in order to receive a US tourist visa - though there is no indication in the CBS story that she actually did this - how would that have been material?

Whether certain demagogic American politicians like it or not, "birth tourism" is absolutely permitted under US law. The only legal grounds for denying a pregnant woman or new mother admission as a visitor would be if there were reason to believe that she was planning to remain in the US rather than return home after the baby was born.

There is no evidence from the CBS story that the mother had any such motive, which would have been the total antithesis of what is meant by the phrase "birth tourism". What law did the mother violate by seeking to give birth in the US before returning home with her child?

Thus it would appear that the real motive for denying the mother admission and sending her home without her child may have been nothing more than a political or ideological objection by a CBP officer to the 14th Amendment's guarantee of birthright citizenship all US-born children, as upheld 117 years ago by the US Supreme Court in US v. Wong Kim Ark (1898).

Under the First Amendment, US politicians have the free speech right to rant and rave against "birth tourism" as much as they want. They also have the right to advocate in favor of changing the US Constitution to take away US citizenship from the children involved.

But the Constitution has not been changed and Wong Kim Ark is still the law. The baby is a US citizen and the there is no evidence that the mother did anything illegal by seeking to come here with her newborn child until the baby was well enough to travel home with her.

This particular method of using anti-Asian prejudice to gain votes (yes, Donald Trump was right about Jeb Bush, though Trump has not exactly been free from appealing to prejudice against Asians himself) can also have destructive consequences on the lives of real people.

The CBS story states that there is no indication when or even if the mother and child will be reunited. What happens if, for example, this new mother never sees her child again, merely because some American politicians think they can attract anti-Asian votes by attacking the 14th Amendment?

As Lucretius wrote 2,000 years ago:

tantum religio potuit suadere malorum ("Myths can lead to so much evil".)

In this case the myth that there is something wrong or illegal about "birthright tourism" has separated an American baby from his or her mother and an innocent mother from her newborn child. tantum religio potuit suadere malorum indeed.

The administration should investigate this evident abuse by the CBP and should promptly arrange to bring the mother back to the US so that she can be with her American child until the child is able to return with her to Taiwan.

*For other examples of how prejudice against Asian immigrants and Asian-Americans is being used in this year's presidential campaign, see Kumar Rao: Why The GOP Is Going to Lose the Asian-American Vote Again...And Why It Matters

Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants obtain work visas, green cards and US citizenship for more than 30 years.

Roger's email address is

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Updated 10-23-2015 at 11:57 AM by ImmigrationLawBlogs

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  1. Unregistered222's Avatar
    Nothing illegal happened here, case closed. This child can sponsor his mother to come to US when he is 21 years old - for now and back to [deleted] for her
    Updated 10-23-2015 at 01:16 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    I have deleted Unregistered222's overtly racist term for the Taiwan woman's home country as not suitable for this site. I would also ask him (or her) to explain why the mother of this newborn American baby was inadmissible to the US.

    CBP has no authority to exclude someone who is admissible under our immigration laws. There has to be a valid reason.

    If a CBP officer doesn't happen to like the 14th Amendment, he or she has the right to visit a Senator or Congressional Representative and try to get the Constitution changed.

    But, absent any evidence that the mother lied to a US officer about her intention to return to Taiwan after a short visit to the US in order to get a visa or to seek admission to the US, that doesn't give the US government authority to kick the mother of a newborn American child out of the US or refuse to let her in, under current law.

    Roger Algase
    Attorney at Law
    Updated 10-23-2015 at 01:22 PM by ImmigrationLawBlogs
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