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Immigration and Citizenship—The “Anchor Baby” Debate by Barbara Sheehan

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Immigration and Citizenship—The “Anchor Baby” Debate by Barbara Sheehan A PUBLICATION OF THE NEW JERSEY STATE BAR FOUNDATION Fall 2012, Vol. 12, NO. 1 A NEWSLETTER ABOUT LAW AND DIVERSITY Immigration and Citizenship—The “Anchor Baby” Debate by Barbara Sheehan The United States is a country founded by In a decision that outraged many Americans at immigrants. The pilgrims who came over on the the time, the Court ruled against Scott and found Mayflower in 1620 were not native to this country. that, because he was black, he was not a citizen of So, ironically they did not have what would later be the United States and had no right to sue. Although known as “birthright citizenship.” this was bad news for Scott, it strengthened the Birthright citizenship is a basic right provided to all determination of many in America to end the unfair U.S. citizens under the 14th Amendment to the U.S. treatment of slaves and some believe provoked the Constitution. Essentially, the amendment stipulates Civil War. that if you were born in the United States, you are a A decade later, in 1868, the 14th Amendment to citizen of the United States — even if your parents the U.S. Constitution was >continued on page 2 were not born here. Although the 14th Amendment has been in existence for more than 140 years, some would like to see it challenged. Sexual Orientation Discrimination Still Exists in Jury Selection Origin of the 14th Amendment by Phyllis Raybin Emert The 14th Amendment came about Every U.S. citizen is entitled to a trial by an impartial jury. because of a slave named Dred Scott, And, every citizen has a civic duty to serve on a jury. In some who in 1856 sued for freedom for himself cases, however, that civic duty is hard to carry out if you are a and his family. At the time of his lawsuit, member of the LGBT community Scott was living in the slave state of Nationally, there is no law prohibiting discrimination in jury Missouri; however, he argued that he selection based on sexual orientation or gender identity. Currently, should be free because he had previously California and Oregon are the only states that have laws lived in the free state of Illinois and the prohibiting jury exclusion based on sexual orientation. An attempt free territory of Wisconsin. A key question to pass similar legislation in Wyoming failed and the fate of a the U.S. Supreme Court had to decide in Minnesota bill is still pending. the case was whether Scott was in fact In New Jersey, the regarding jury selection a U.S. citizen, entitled to the protections statute specifically states that no citizen can be disqualified from a given to Americans under the U.S. jury “on account of race, color, creed, national origin, ancestry, Constitution. marital status or sex.” Although the words sexual orientation and gender identity are not specifically mentioned in the statute, in the 1985 case of State v. Gilmore, the New Jersey Supreme >continued on page 5 The “Anchor Baby” Debate continued from page 1< This publication was made ratified. It basically reversed the Court’s ruling babies,” sparking heated debates around the possible through funding from in the Scott case and granted U.S. citizenship country. Supporters say changes are needed to the IOLTA Fund of the Bar of New Jersey. to freed black slaves. The amendment states: U.S. citizenship laws because the U.S. cannot afford the costs associated with these children Angela C. Scheck “All persons born or naturalized in the United Executive Editor States, and subject to the jurisdiction thereof, (such as healthcare, education, etc.). A study Jodi L. Miller are citizens of the United States and of the conducted by the Center for Immigration Studies Editor State wherein they reside…” estimated that nearly $2 billion dollars a year is paid to illegal aliens in the form of government Editorial Advisory Board Anchoring babies services, such as food stamps, etc. Gwendolyn Yvonne Alexis, Esq. Chair Today, children of illegal immigrants On Face the Nation, Senator Jon Kyl of Engy Abdelkader, Esq. receive birthright citizenship in the U.S. under Arizona said, “The 14th Amendment has been Mary M. Ace, LCSW the protection of the 14th Amendment. The interpreted to provide that if you are born in Lisa H. James-Beavers, Esq. particular circumstances of these families vary. the United States, you are a citizen no matter Maha M. Kabbash, Esq. In some cases, immigrant parents may already what. So, the question is, if both parents are Ronald G. Lieberman, Esq. be living here unlawfully when they have their here illegally, should there be a reward for their Louis H. Miron, Esq. Anna P. Pereira, Esq. children. In other cases, it has been reported illegal behavior?” Senator Kyl favors repealing Margaret Leggett Tarver, Esq. that pregnant women come to the U.S. illegally the 14th Amendment and has called for Dr. Paul Winkler from other countries to give birth so their congressional hearings on the issue. New Jersey State Bar children can obtain citizenship rights. This may Congressman Steve King of Iowa doesn’t Foundation Board of Trustees include, for example, women who cross the believe repealing the 14th Amendment is Stuart M. Lederman, Esq. Mexican border illegally into Arizona or Texas necessary and is the sponsor of a federal bill President expressly to give birth in an American hospital. called the Birthright Citizenship Act of 2011. If Louis H. Miron, Esq. In all of these cases, the parents do not enacted this law would require that at least one First Vice President get automatic citizenship—only the child does. parent of a child born in the U.S. be a citizen or Steven M. Richman, Esq. However, when that child turns 21, he or she legal permanent resident for that child to obtain Second Vice President may sponsor other family members for entry birthright citizenship. Patrick C. Dunican Jr., Esq. into the U.S. The controversial term “anchor “The current practice of extending U.S. Treasurer babies” has emerged to describe these children citizenship to hundreds of thousands of ‘anchor Lynn Fontaine Newsome, Esq. because they are said to anchor (or keep) babies’ every year arises from the misapplication Secretary immigrant relatives in the U.S. According to of the Constitution’s citizenship clause and Trustees the Pew Hispanic Center, in 2008, 3.8 million creates an incentive for illegal aliens to cross Gwendolyn Yvonne Alexis, Esq. undocumented immigrants had a least one child our border,” Rep. King said in a statement after Paulette Brown, Esq. with birthright citizenship. introducing his legislation. “The Birthright Angela White Dalton, Esq. The Center for Immigration Studies, a Citizenship Act of 2011 ends this practice by Paris P. Eliades, Esq. non-profit, independent research organization, making it clear that a child born in the United Eli L. Eytan, Esq. Susan A. Feeney, Esq. estimates that 300,000 to 400,000 children are States to illegal alien parents does not meet Norberto A. Garcia, Esq. born in the U.S. to illegal immigrants each year. the standard for birthright citizenship already Hon. C. Judson Hamlin According to the Center, there are approximately established by the Constitution.” Ralph J. Lamparello, Esq. 30 countries that grant birthright citizenship Introduced in January 2011, no other Bryan Lonegan, Esq. to children of undocumented parents. Most action has been taken on the measure. Kevin P. McCann, Esq. Jeffrey J. McWeeney, Esq. countries, including Great Britain, Australia and Anna P. Pereira, Esq. India, do not. What has the Court said? Thomas H. Prol, Esq. This is not the first time that the issue of Robert J. Stickles, Esq. Changing the laws? birthright citizenship has been debated in our Margaret Leggett Tarver, Esq. Some lawmakers have proposed legislation country’s history. The U.S. Supreme Court Miles S. Winder III, Esq. that denies U.S. citizenship to so-called “anchor has taken up the issue before. ©2012 New Jersey State Bar Foundation >2 In the 1884 case of Elk v. Wilkins, the to the United States after a temporary and appellate bodies, it can take years Court considered the citizenship rights visit to China on the grounds that he was for immigrants with even valid claims for of a Native American named John Elk, not a U.S. citizen. At the time, there was immigration status to make it through who was born on an Indian reservation a federal law in place in the United States the system. Such immigrants are often and later moved to a non-reservation called the Chinese Exclusion Act, which criticized for having ‘anchor babies’ in U.S. territory, where he tried to register restricted U.S. immigrants from China and the interim. It is unrealistic to expect to vote and was denied. The Court in placed limitations on their citizenship. immigrants to put their lives on hold the case held that Elk did not fulfill the The U.S. Supreme Court ruled in pending these delays, particularly when “subject to the jurisdiction” clause of the favor of Wong Kim Arc, ruling that such delays can happen through no fault 14th Amendment because he “owed he was a U.S. citizen under the 14th of their own.” immediate allegiance” to his tribe and not Amendment to the U.S. Constitution. The When determining the validity of to the United States; therefore the Court Court’s ruling established that the 14th statements made about the anchor baby concluded that Elk did not have citizenship Amendment applied to everyone born in issue, Politifact, a website that fact-checks rights.
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