The Fourteenth Amendment to the U.S. Constitution, quoted in the box on this page, was ratified in 1868 as a measure to grant citizenship to recently freed black slaves. However, it has been interpreted by the Congress as extending citizenship to anyone born within the geographic limits of the United States, even if the individual's parents are not citizens or legal residents.
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.
- The U.S. Constitution
Section 1 Popularly known as the "citizen-child loophole," this curious provision of U.S. law is used every year by tens of thousands of illegal aliens to obtain instant U.S. citizenship for their newborns. By mid-1995, the number of citizen-children who had been born to illegal alien parents was conservatively estimated at over one million.1 The citizen-children are automatically entitled to all of the benefits available to Americans, and, upon reaching the age of 21 years, can legally sponsor their parents and siblings for citizenship. This is why they are known as "anchor babies" - a child making it possible for an entire family to gain entry into the United States and its social welfare programs.
As illegal aliens, the parents of such children could be reported to federal authorities and potentially face deportation. However, deportations rarely occur. Indeed, being the parent of a new citizen-child is often cited as a legal argument to avoid such action. "In the last 10 to 15 years, I can't remember a case (of deportation of parents)," observed Peter Nuņez, U.S. Attorney for San Diego during the Bush administration.2
Along the Texas-Mexican border, pregnant Mexican women frequently use the services of midwives (parteras) on the U.S. side who, for anywhere from $200 to over a $1000, provide women with delivery care, as well as U.S. citizenship forms and supporting documentation for their infants. From Matamoros, Mexico, pregnant women often simply take a taxi across the international bridge to deliver their children in Brownsville, Texas. One popular midwife, 48-year-old Trini Saldivar, freely conceded to a Los Angeles Times reporter that "the prospect of instant citizenship is the lure that draws many of her patients across the border."
"Mexicans who cannot afford American immigration lawyers after their kids are born go to American parteras before their kids are born," Professor Margarita Tagle of Texas A & M University explained. Between Brownsville and Laredo, 140 parteras are doing business - about one per mile. In 1995, 259 midwives were licensed in Texas.3 Should complications arise, women are taken to local public hospitals, where they are cared for at U.S. taxpayer expense.4
California Governor Pete Wilson pointed out in 1994 that there was an alarming jump in the number of citizen-children on Aid to Families with Dependent Children (AFDC). Between 1988 and 1993, the number of citizen-children in California receiving AFDC increased fourfold to about 12 percent of the state caseload. A report by the California Department of Health Services found nearly 96,000 babies were born to illegal immigrants in 1992, with their medical care costing the state $230 million.5 A 1993 cost-benefit study prepared by Louis Rea and Richard Parker of San Diego State University found that 41 percent of the estimated 5,800 citizen-children born in San Diego County in 1992 immediately went on welfare. A year later, about 34 percent of them were still receiving benefits. Such welfare cases in San Diego were estimated to cost taxpayers $18.7 million per year.6 By 1995, there were over 114,000 citizen-children living in Los Angeles County.
The system is open to fraud. A state-funded Orange County (CA) study found 62 percent of the claims in citizen-child cases were fraudulent. Some parents were earning money without reporting their income, or were using counterfeit documents."...the Fourteenth Amendment's citizenship clause pertains only to the children of those legally admitted to permanent residence."
Others were not even living in California. "They were getting checks laundered by friends and family. When we checked with schools, often the child wasn't in the country," reported Angelo Doti, director of financial assistance for Orange County.7
Last year, in the largest such case in INS history, four midwives in Brownsville and San Benito, Texas pleaded guilty to filing fraudulent Texas birth certificates for 1,500 children actually born in Mexico. Making $800 to $1,200 for each birth certificate they falsified, the network of midwives operated profitably from 1988 to 1994.8 However, midwife-assisted birth registrations are rarely checked. There are virtually no safeguards to prevent a midwife from inventing a child's U.S. address.
The United States is one of the very few countries basing citizenship on the mere fortuity of having been born here. The overwhelming majority of countries base citizenship on the legal status of the parents. [See the chart on page 16.]
Peter Schuck and Rogers Smith of Yale University are among the legal scholars who argue that the Fourteenth Amendment's citizenship clause pertains only to the children of those legally admitted to permanent residence. Few believe that the framers of the Fourteenth Amendment intended to extend citizenship to the children of illegal aliens, a non-existent legal concept in 1868.9 (See page 19.)
Several members of Congress have introduced measures to close the "citizen-child loophole." Rep. Mark Foley (R-FL) is sponsor of a Citizenship Clarification Amendment. This act would grant automatic citizenship to a newborn only on the condition that at least one parent is a legal resident at the time of the child's birth.
Rep. Brian Bilbray (R-CA) asserts Congress can simply reinterpret the Fourteenth Amendment to the Constitution, since the drafters could not have foreseen the current immigration situation. Rep. Bilbray's Citizenship Reform Act would amend the Immigration and Nationality Act to define the Amendment's phrase "subject to the jurisdiction thereof" as referring only to U.S. citizens or legal immigrants. Immigrants illegally in this country would be in violation of the act. (See page 9.)
On another tack, Elton Gallegly (R-CA) and Anthony Beileson (D-CA) both have submitted constitutional amendments that would deny citizenship to babies of illegal aliens. (See page 7.)
These proposals were introduced during the 1995-1996 Congress but were not acted upon. They are expected to be reintrodcued in the next Congress.
1 Nancy Cleeland and Eric Young, "Citizen children: Offspring of illegal immigrants face an uncertain future," Miami Herald, June 5, 1995.
3 Jesse Katz, "Rio Grande Midwives Deliver Citizenship," Los Angeles Times, May 13, 1995.
4 Matt Moffet, "Border Midwives Bring Baby Boom to South Texas," Wall Street Journal, October 16, 1991.
5 Joan Lowry, "Pushing to limit U.S. birthright," San Francisco Examiner, July 23, 1995.
7 Cleeland and Young, op. cit.
8 Fernando Del Valle, "Four midwives plead guilty," Valley Morning Star, Harlingen, Texas, July 6, 1995.
9 Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent (New Haven: Yale University Press, 1985).