Citizen or illegal? Children of two worlds - East Valley Tribune: News

Citizen or illegal? Children of two worlds

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Posted: Saturday, February 9, 2008 9:01 pm | Updated: 11:40 pm, Fri Oct 7, 2011.

Kimberly was afraid about going to Guatemala. But the 9-year-old girl knew it was inevitable. Her parents were here illegally, and her mom had been caught.

GRAPHIC: Breakdown of births by mother's immigration status

GRAPHIC: Cost of care

GRAPHIC: Efforts at changing the law

When the Tribune interviewed Kimberly last month, she knew her mother was about to be deported. That happened a short time later. Ten days ago, Kimberly and her two younger brothers followed.

Guatemala is a place Kimberly had never been and knew almost nothing about.

She was born here. She went to school here. She learned English and adopted the American culture here.

In her heart, Kimberly said, she is American.

"It scares me a lot," Kimberly said of going to a nation she had never seen and has no ties to. "It's unfair to me. It's just unfair."

Kimberly and her siblings are Americans, all born and raised in the Valley.

The way things stand today, virtually anyone born in the United States is an American citizen, regardless of the immigration status of their parents.

But critics are pushing to change that.

An initiative has been launched in Arizona to challenge the presumption that American-born children of illegal immigrants are citizens. There is a separate effort being pushed in the Legislature to achieve that same goal. For years, legislation has been proposed in Congress that would strip automatic citizenship from American-born children whose parents are in the country illegally. So far, the federal effort has failed to gain traction.

There is no tougher issue in the debate over illegal immigration than what to do with U.S.-born children like Kimberly. Their parents are breaking the law and face deportation if caught. The children are American citizens as a birthright, and are entitled to the same rights and benefits as children born to American parents.

But as the numbers of these children continue to grow, so does the pressure to re-examine the issue of what is called "birthright citizenship."

Critics of automatic citizenship for children of illegal immigrants say that notion is based on a misinterpretation of the Constitution never resolved by the U.S. Supreme Court. Some use the term "anchor babies" to describe those children, arguing the kids allow illegal immigrants to tap into taxpayer-funded welfare and health programs while making it less likely the parents will be deported if they get caught.

No one can say for sure how many of these children are in the United States, or how much they cost. Last year, taxpayers picked up the tab for more than 18,000 babies born in Arizona to parents who could not prove they were in the country legally. Labor and delivery costs alone were almost $88 million for those children.

There are roughly 12 million illegal immigrants living in the United States, according to studies from various organizations. That figure does not count the estimated 3.5 million to 4million children born in the U.S. to parents here illegally. Theyare counted as Americans, not illegal immigrants.

Almost one in five children born annually in Maricopa County is the child of a mother who is an illegal immigrant, according to studies based on 2002 data by the Center for Immigration Studies. That percentage has almost certainly grown in the last six years, said Steven Camarota, the center's director of research.

Mothers who are illegal immigrants account for about 17.2 percent of the children born in Arizona and about 9.5 percent of those nationwide, according to Camarota's studies, based on Census data and records of all births compiled by the National Center for Health Statistics.

Separate studies by the Pew Hispanic Center estimate about two-thirds of the children living in U.S. families headed by illegal immigrants are American citizens by birth, according to Jeffrey Passel of the center.

Those numbers, and the costs associated with the taxpayer-financed benefits those children qualify for, are driving the effort to challenge the notion of automatic citizenship, said Della Montgomery, chairwoman of the committee circulating the initiative petition.

"I'm not saying 'starve them to death,'" Montgomery said. "I'm just saying they are not citizens. It's in such numbers now and it's costing us money. We just can't keep it up."

The initiative would prohibit the state from issuing a birth certificate to a child born to illegal immigrant parents. Montgomery said she knows that, if passed, the initiative would be the subject of a court battle. The ultimate goal is to force the U.S. Supreme Court to decide the issue, she said.

COST OF CARE

Figuring the cost of American children born to illegal immigrants is tough. For one thing, they're not counted as illegal immigrants. They're Americans by definition.

Schools and hospitals do not track the legal status of parents. Neither do state agencies in charge of government welfare and health care programs for the poor.

Generally, illegal immigrants do not qualify for public benefits such as medical coverage under the Arizona Health Care Cost Containment System (AHCCCS), or for general economic assistance programs. The children, as Americans, do.

Labor and delivery costs for illegal immigrants are paid under a federal program to provide emergency medical treatment. People in the program cannot prove they are citizens or legal U.S. residents, but AHCCCS does not take the extra step to confirm they are in the country illegally, said Rainey Daye Holloway, spokeswoman for the agency.

Taxpayers spent about $87.9million to pay for the 18,103 births to undocumented parents in Arizona covered under the program last fiscal year, which ended in June, according to an analysis run by the agency in response to a Tribune inquiry.

It cost an additional $101.7 million to provide one year of medical care to those American children through AHCCCS, according to agency estimates.

For normal medical coverage under AHCCCS, the child born in the U.S. qualifies for any benefits available to children of American citizens, Holloway said. The parents and their nonlegal children only qualify for emergency medical treatment, she said.

Liz Barker, spokeswoman for the Arizona Department of Economic Security, said there is no way to track how much the state pays out in economic assistance for American-born children of illegal immigrants. Only citizens and legal immigrants who meet certain qualifications can qualify for economic benefits, Barker said.

The legal status of the child is verified, Barker said. The legal status of the parents, who are not applying for benefits, is not, she said.

LIMITED BENEFIT

For Kimberly's father, Hector, it was not the lure of government benefits or the prospect of thwarting deportation that led to the decision to have three children in the United States.

"A lot of people think immigrants have children because they want to stay here forever," Hector said. "No. I love my wife."

Because of his fear of immigration authorities, the Tribune agreed to protect the identity of Hector's family as a condition of his agreeing to an interview.

Hector is a Guatemalan native who sneaked across the border at Nogales in 1993, he said. He has worked since he got here, most recently washing cars.

Though his wife has already been deported, Hector remains, at least for now, until pending legal issues related to his immigration status are resolved.

Hector said English is the primary language for all three of his children ranging in age from four to nine. They consider themselves Americans, not Guatemalans, he said, echoing Kimberly's sentiments about her heritage.

"They act more like Americans," Hector said. "They make the oath to the flag and really have their hearts in the United States more than Guatemala."

The three children were getting health care through AHCCCS, Hector said. Two have asthma and the youngest, four-year-old Emerson, recently needed emergency surgery after his appendix ruptured, Hector said.

The family has not received any other public assistance, he said.

Having three American children did nothing to help their immigration case, Hector said.

Nancy-Jo Merritt, an attorney handling immigration cases, said the situation Hector and his family are in is typical. Having American-born children carries no weight in deportation proceedings, Merritt said.

There are limited circumstances in which an immigration judge can block the deportation of illegal immigrants, such as having an American child with severe medical problems, she said, noting that exemption is rarely granted.

Economic hardship does not qualify, Merritt said. Neither does the argument the child would receive a better education here.

"The reason I hate the term 'anchor babies' is that it sounds as though the people that are here have done something sneaky," Merritt said. "They just live their lives. They have jobs. They get pregnant. They have children. And those children are of no benefit to them in terms of their status until the children turn 21."

When American-born children turn 21, they can sponsor their parents for legal status in the U.S.

"JURISDICTION" DISPUTE

The presumption that all children born in the U.S. are citizens, regardless of their parents' legal status, is rooted in the 14th Amendment to the Constitution, which was adopted in the post-Civil War era to ensure citizenship for blacks.

"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," is the language in the Amendment.

It is the phrase "subject to the jurisdiction" that is in dispute.

The Supreme Court has not directly ruled on whether the children of illegal immigrants are automatically American citizens if they are born in the U.S., said Peter Schuck, a Yale Law School professor who has researched the legislative history of the 14th Amendment.

The most recent guidance the court has given was 110 years ago, when it ruled the child of legal Chinese immigrants born in San Francisco was an American by birth.

But that ruling came decades before there was a modern-day concept of illegal immigration and a century before the latest surge of illegal immigrants crossed America's borders.

Illegal immigrant parents are the subjects of a foreign nation, Schuck said. Unless they are in the United States legally, they are under the "jurisdiction" of their native countries, he said.

That means their children are exempt from automatic citizenship, just as the American-born children of foreign diplomats are not considered Americans, Schuck said.

But Evelyn Haydee Cruz, an associate law professor at Arizona State University and director of the school's immigration clinic, said illegal immigrants are subject to the jurisdiction of the United States because they can be prosecuted for breaking the law. Diplomats cannot be prosecuted, and their American-born children are not citizens, she said.

Schuck acknowledges the Supreme Court would probably rule children of illegal immigrants born in the United States are entitled to birthright citizenship because it has been the accepted practice for so long. That means it would take an amendment to the U.S. Constitution to change the law.

That's unlikely, said Rep. John Shadegg, R-Ariz., who has co-sponsored bills challenging the notion of birthright citizenship for illegal immigrants since his first term in Congress in 1995.

Shadegg said federal legislation on the issue "is not going anywhere soon," despite pressure on Congress to clamp down on illegal immigration. It is tough enough to get a consensus in Congress to deal with adults who enter the country illegally, Shadegg said. The issue of what to do with their children, particularly those born in the United States, is even more volatile, he said.

If the legislation ever does pass, it would at least get the issue to the Supreme Court so the question of who is an American citizen could be resolved, Shadegg said.

"To leave this big of an ambiguity in such a fundamental provision of a nation's law is inappropriate," Shadegg said. "This is a huge issue that ought to be resolved. Right now, it's a muddle."

At the Legislature, Rep. Russell Pearce, R-Mesa, is pushing a proposal that would ask Arizona voters to weigh in on the issue. The measure, co-sponsored with Sen. Karen Johnson, R-Mesa, is similar to the initiative being circulated by Montgomery. If it clears the Legislature, the issue would be put directly to voters in November.

Pearce said he is confident the referendum would be approved. But he acknowledged the issue of birthright citizenship is tougher than other recent measures that targeted illegal immigrant adults.

"It always makes it more difficult when you involve children," Pearce said. "You have to separate that emotion from it being the right thing to do. It's not a matter of not loving these people. It's a matter of what's right."

WITHOUT A COUNTRY

Though the prospects are dim that the current interpretation of birthright citizenship will be overturned anytime soon, illegal immigrants fear the efforts to challenge the status of their American-born children.

Rosa, an illegal immigrant from Mexico, worries about what would happen to her three children - all American born - if their U.S. citizenship is called into question.

The children, all boys, range in age from eight to 13. They have lived in the Mesa area all their lives and consider themselves Americans.

Rosa and her husband, both Mexican nationals, have worked since they crossed the border illegally in 1993, she said. No one in the family has received any government welfare or health care benefits, she said.

If efforts to change the law are successful, Rosa says her kids would be left without a country.

"It's worrisome," Rosa said of her sons' heritage. "It's worse because they don't have a place in Mexico. Not from here. Not from there. Then from where?"

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