Citizenship as a Birthright: What the United States Can Learn from Failed Policies in the and [Note]

Item Type Article; text

Authors Booth, Venus

Citation 28 Ariz. J. Int'l & Comp. L. 693 (Fall 2011)

Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ)

Journal Arizona Journal of International and Comparative Law

Rights Copyright © The Author(s)

Download date 26/09/2021 04:22:20

Item License http://rightsstatements.org/vocab/InC/1.0/

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Link to Item http://hdl.handle.net/10150/658973 NOTE

CITIZENSHIP AS A BIRTHRIGHT: WHAT THE UNITED STATES CAN LEARN FROM FAILED POLICIES IN THE UNITED KINGDOM AND IRELAND

Venus Booth*

I. INTRODUCTION

The United States is one of the few countries that continue to grant birthright citizenship to any person born within its boundaries.' The right derives from the Fourteenth Amendment of the U.S. Constitution, which states, "[A]ll 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." 2 Reaffirmed in section 301 of the Immigration and Nationality Act, this right means that any person born in the United States is automatically a citizen.3 Thus, children born to illegal immigrants in the United States are U.S. citizens. Some believe that illegal immigrants are intentionally having children in the United States, not only to ensure that their children become U.S. citizens, but also to carve out a path to U.S. citizenship for themselves. It is true that a parent's deportation may be averted under certain circumstances,5 and once a citizen child turns twenty-one, she can petition for her parents to legally immigrate.6 The children at the center of these procedures are pejoratively referred to as "anchor babies."7

* J.D. Candidate, Class of 2012, University of Arizona, James E. Rogers College of Law. I want to thank Ledilla Booth for her insightful guidance and the editors of Arizona JournalofInternational and ComparativeLaw for their help in the editing process. 1. Only thirty of 194 countries grant automatic citizenship to children born to undocumented aliens. JOHN FEERE, CENTER FOR IMMIGRATION STUDIES BIRTHRIGHT CITIZENSHIP IN THE UNITED STATES: A GLOBAL COMPARISON 2 (2010), available at http://www.cis.org/articles/2010/birthright.pdf 2. U.S. CoNST. amend. XIV, § 1. 3. See generally Glossary of Immigration Terms, FEDERATION OF AM. IMMIGRATION REFORM [FAIR], http://www.fairus.org/site/PageNavigator/about.html (last visited Dec. 31, 2011). 4. Id.; see also U.S. CITIZENSHIP AND IMMIGRATIONS SERVICES, http://www.uscis.gov/portal/site/uscis/ (last visited Dec. 31, 2011) (explaining the process to petition for relatives including parents). 5. U.S. CITIZENSHIP AND IMMIGRATIONs SERVICES, supra note 4; 8 U.S.C. § 1401(a) (2010). 6. U.S. CITIZENSHIP AND IMMIGRATIONS SERVICES, supra note 4. 7. The Federation for American Immigration Reform defines an "" as a "child born in the United States to illegal immigrants or other non-citizens." The term "anchor" refers to the idea that "the child's U.S. citizenship may provide a means for the rest of the family to stay in the United States or, more commonly, to return to the United 694 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011

The idea of "anchor babies" has some people questioning U.S. policy on birthright citizenship.i During the 112th Congress, bills restricting birthright citizenship were introduced in both the Senate and House of Representatives; the bills were assigned to committees but never heard in committee hearings or brought to the floor for a vote. 9 Similarly, state legislators attempted to restrict birthright citizenship during the 2011 legislative session, and all bills failed.' 0 Opposition to these proposals was fierce and included immigrant rights groups in Mexico and the United States," which asserted that such measures would fail to prevent and "only create a permanent underclass of workers with no civil rights."' 2 The controversy highlights the continuing concern over U.S. immigration policy. Although the efforts failed this time, the issue is not likely to disappear given that the United States has historically been hostile toward immigrants, especially during times of economic hardship. Other countries have addressed similar immigration quandaries. The United Kingdom and Ireland offer two particularly appropriate examples to examine when considering changes to U.S. policy. Both countries amended their birthright citizenship laws to eliminate automatic citizenship. The United Kingdom addressed the issue in the British Nationality Act of 1981, which established citizenship based on a parent's citizenship. 3 More recently, Ireland amended its Constitution to limit automatic citizenship only to children born to an Irish resident or citizen.14

States as immigrants after the child reaches adulthood." See Glossary of Immigration Terms, supra note 3. 8. See JEFFREY PASSEL & D'VERA COHN, PEW HISPANIC CTR., UNAUTHORIZED IMMIGRANT POPULATION: NATIONAL AND STATE TRENDS, 2010 (2011), available at http://pewhispanic.org/reports/report.php?ReportlD=133. 9 See S. 723, 112th Congress (1st Sess. 2011); H.R. 140, 112th Congress (1st Sess. 2011). 10. Fawn Johnson, States' Dare to Feds on Birthright Citizenship Stirs Protests, NAT'L J., Jan. 5, 2011, available at http://www.nationaljoumal.com/states-dare-to-feds-on- birthright-citizenship-stirs-protests-201 10105. 11. Nacha Cattan, Rights Groups Denounce Proposed Bills to Remove 'Birthright Citizenship,' CHRISTIAN SCI. MONITOR, Jan. 5, 2011, at 1, available at http://www.csmonitor.com/World/Americas/2011/0105/Rights-groups-denounce-proposed- bills-to-remove-birthright-citizenship. The state proposals were spearheaded by Pennsylvania State Representative Daryle Metcalf and embraced by local lawmakers from Oklahoma, Kansas, South Carolina, Georgia, and Arizona. Id. 12. Id. 13. British Nationality Act 1981, c. 61, § 1 (Eng.) (providing that a person bom in the United Kingdom shall be a British citizen if at the time of the birth, the person's mother or father "is a British citizen or settled in the United Kingdom"). 14. Irish Nationality and Citizenship Act 2004, (Act No. 38/2004) (Ir.), available at http://www.inis.gov.ie/en/INIS/Act2004.pdf/Files/Act2004.pdf (stating that "a person born in Ireland shall not be entitled to Irish citizenship unless a parent of that person has, during the period of four years immediately preceding the person's birth, been a resident of Ireland Citizenship as a Birthright 695

This Note first discusses the purposes, history, and development of birthright citizenship in the United States. Next, it examines the territorial citizenship policies developed in the United Kingdom and Ireland, then assesses whether it is feasible for the United States to follow either country's immigration reform. The Note concludes that any dramatic changes to U.S. birthright citizenship would be not only unfeasible, but also unwise; yet if a law eliminating birthright citizenship were passed and challenged, the U.S. Supreme Court could rule and put the issue to rest.

II. THE UNITED STATES AND BIRTHRIGHT CITIZENSHIP

A. Historical Basis for the "Anchor Baby" Controversy

When the framers of the U.S. Constitution adopted the in 1787, immigration was unregulated, and the United States maintained an open-border policy to strengthen the national economy by attracting labor and capital.15 The first anti-immigrant movement began to spread throughout the United States during the 1850s and was directed primarily against Irish and German Catholics.' 6 This movement was attributed to groups such as the Know Nothing Party, which "espoused biases against ethnic and religious groups and resentment of competition." 17 The Know Nothings played to the concerns among the Southern states regarding the Northern states' expanding population and political power.'8 Southerners feared that rapid population growth in the North would result in diluted political power in the South and blamed the influx of Irish and German Catholic immigrants.1 This movement, while powerful, did not result in any lasting change to the U.S. immigration policy, but it demonstrated an anti-immigration sentiment that would periodically sweep through the United States. The numbers of immigrants continued to increase, particularly after the Civil War. 20 The combined effects of wars, revolutions, national persecutions, and depressions elsewhere, contrasted with the industrialization and expansion in the United States, were motivating factors for the increase in immigration.21 for a period of not less than three years or an aggregate of which is not less than three years"). 15. PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY 92 (1985). 16. Austin T. Fragomen et al., Historical Perspective on Immigration Legislation, I IMMIGR. L. & Bus. § 1:2 (2010). 17. Id.; see generally TYLER ANBINDER, NATIVISM AND SLAVERY: THE NORTHERN KNow NOTHINGS AND THE POLITICS OF THE 1850's (1992). 18. Fragomen et al., supranote 16. 19. Id. 20. Id. 2 1. Id. 696 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011

Tension regarding immigration increased again in the late 1800s, as an influx of Chinese immigrants sparked animosity between American and Chinese laborers. 22 Congress responded by passing the Chinese Exclusion Acts of the 1880s and 1890s, and later measures that excluded the Japanese and restricted eligibility for naturalization.23 The first Chinese Exclusion Act was passed in 1882 and barred Chinese laborers from entering the country for ten years.24 Although amended, this Act was technically in effect until 1943.25 Many Americans viewed the Chinese as "fundamentally different" and believed that unless prompt action to restrict Chinese immigration was taken, the country would be "overrun by the Chinese." 26 Around the same time, the U.S. Supreme Court ruled on the historic immigration case of United States v. Wong Kim Ark.27 The Court held that a child born in the United States to Chinese parents legally present in the United States was a citizen at the time of his birth. 28 Wong Kim Ark was born in California and lived in the United States.29 When he was about twenty-one, he decided to visit , but when he tried to return to the United States, he was denied entry because he was not a citizen.30 The Court reasoned that the Fourteenth Amendment, in the declaration that "all persons born or naturalized in the United States . . . are citizens" contemplated two sources of citizenship: birth and naturalization. With those blunt words, the Court established that citizenship is earned merely by being born in the country.32 It is important to stress, however, that Wong's parents were legal immigrants; the Court has never ruled that native- born children of undocumented parents are automatic citizens.33 Attempts to control immigration continued in the 1900s. 34 Naturalization matters were transferred to the Department of Commerce and Labor with the Naturalization Act of 1906.3' The Naturalization Act of 1906 combined immigration and naturalization matters into one agency and added more

22. SCHUCK & SMITH, supra note 15, at 93. 23. Id. 24. Fragomen et al., supra note 16. 25. Id. 26. Id.; Nina Wang, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law, 31 HARv. C.R.-C.L. L. REv. 587, 587 (1996). 27. United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898). 28. Id. 29. Id. at 652-53. 30. Id. at 653. 31. Id. at 702. 32. Wong Kim Ark, 169 U.S. at 702. 33. SCHUCK & SMITH, supra note 15, at 117; see also MARGARET M. LEE, CONG. RESEARCH SERV., BIRTHRIGHT CITIZENSHIP UNDER THE 14TH AMENDMENT OF PERSONS BORN IN THE UNITED STATES TO ALIEN PARENTS 16 (2010). 34. Jessica Schneider, Waiting to be an American: The Court's Proper Role and Function in Alleviating NaturalizationApplicants' Woes in 8 U.S.C. § 1447(b) Actions, 29 ST. Louis U. PuB. L. REv. 581, 584 (2010). 35. Id. Citizenship as a Birthright 697 requirements to become a naturalized citizen, such as the ability to understand English. These added requirements demonstrated the rising tension between Americans and immigrants. The Naturalization Act of 1906 remained in force until 1940. In 1921, Congress passed laws that established a quota on immigrants from the Eastern Hemisphere. 39 However, there was no quota imposed upon foreign nationals from the Western Hemisphere until 1968.40 The 1921 quota reflected the views of "racial scientists," or eugenicists, who urged the preservation of the predominance of northwestern Europeans and the exclusion of other groups because they were racially inferior.4 1 "Scientific racism" directly influenced the quota statute and was a pervasive theory at that time.42 A brief shift toward policies more favorable to immigrants began in the 1940s.43 Labor shortages during World War II spurred the establishment of a temporary guest worker program in 1942." This program allowed employers to hire agricultural workers from Mexico for up to nine months per year. 45 Congress later enacted the Agricultural Act of 1949, establishing the Bracero Program, which expanded the temporary guest worker program. 46 From 1949 to 1964, the Bracero Program brought more than 5 million Mexicans to the United States as temporary workers.47 When the program ended in 1964, employers still needed immigrant labor, but were left with few options.48 Hiring undocumented immigrants proved to be the least expensive solution.49 Illegal immigration from Mexico increased dramatically during the 1970s and 1980s.50 By the 1980s, there were millions of undocumented immigrants in the United States. 5'

36. Id. 37. Id. 38. Fragomen et al., supra note 16. 39. Id. 40. Id. 41. Id. 42. Id. 43. Phi Mai Nguyen, Closing the Back Door on Illegal Immigration: Over Two Decades ofIneffective Provisions While Solutions Are Just a Few Words Away, 13 CHAP. L. REv. 615, 625 (2010). 44. Id. 45. Id. 46. Id. 47. Id. 48. Nguyen, supra note 43, at 625. 49. Id. 50. SCHUCK & SMITH, supra note 15, at 93. 51. Nguyen, supra note 43, at 626. 698 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011

B. The "Anchor Baby" Debate

1. Legislative Proposals

As animosity toward immigrants has increased over the past decade, various proposals have surfaced regarding the elimination of birthright citizenship.52 Recent proposals include H.R. 140, which was introduced by Republican Representative Steve King of Iowa, along with eighty co-sponsors, and S. 723, which was introduced by Republican Senator David Vitter of Louisiana, along with four co-sponsors.5 3 Both bills were known as the Birthright Citizenship Act of 201 1.54 If passed, the bills would have amended the Immigration and Nationality Act to consider a person born in the United States "subject to the jurisdiction" of the United States for citizenship at birth only if the person was born in the United States to parents, one of whom was: 1) a U.S. citizen or national, 2) a lawful permanent resident alien whose residence is in the United States, or 3) an alien performing active service in the U.S. Armed Forces.55 Neither bill made it out of committee, so Congress took no action.56 Similar efforts to eliminate birthright citizenship were demonstrated in early January 2011, when state legislators announced efforts to end automatic citizenship to children born to illegal immigrant parents. One leader of this movement was Republican Pennsylvania State Representative Daryl Metcalfe.58

52. LEE, supra note 33, at 9. There are several variations on such proposals. Some would expressly repeal the Citizenship Clause and limit citizenship to persons born to a mother who is a citizen or permanent resident. Some do not repeal the Citizenship Clause but attempt to limit citizenship to persons born to parents both of whom are either citizens or lawful permanent residents. These proposals, however, have made little headway and have been consistently criticized. Id. 53. See S. 723, 112th Congress (1st Sess. 2011-2012); H.R. 140, 112th Congress (1st Sess. 2011-2012). 54. See S. 723, 112th Congress (1st Sess. 2011-2012); H.R. 140, 112th Congress (1st Sess. 2011-2012). 55. See S. 723, 112th Congress (1st Sess. 2011-2012); H.R. 140, 112th Congress (1st Sess. 2011-2012). 56. See S. 723, 112th Congress (1st Sess. 2011-2012); H.R. 140, 112th Congress (1st Sess. 2011-2012). 57. Julia Preston, PoliticalBattle on Immigration Shifts to States, N.Y. TIMES, Jan. 1, 2011, at Al. Legislators from forty-one states joined forces to create a coalition called "State Legislators for Legal Immigration." STATE LEGISLATORS FOR LEGAL IMMIGRATION, http://www.statelegislatorsforlegalimmigration.com/ (last visited Dec. 31, 2011). 58. Rep. Metcalfe stated during a news conference, "While the federal government continues to remain AWOL, acting in many ways as a blatant obstruction to fulfilling our Constitutional obligation to protect the lives, liberty and property of the American citizens we serve, this ongoing distortion and twisting of the 14th Amendment greatly incentivizes foreign invaders to violate our border and our laws . . . . Anchor babies are one of the principal reasons that illegal aliens are crossing and costing American taxpayers $113 billion annually, or nearly $1,117 yearly per individual taxpayer." State Legislators Form Citizenship as a Birthright 699

Metcalfe sought to eliminate an "anchor baby status, in which an illegal alien invader comes into our country and has a child on our soil that is granted citizenship automatically."59 Arizona is at the center of the immigration debate. The Arizona State Senate Appropriations Committee passed legislation that would have significantly affected illegal immigrants living in Arizona, and in so doing, it became the first state legislative committee in the country to pass bills challenging automatic citizenship to children born to illegal immigrants living in the United States.6 1 In January 2011, S.B. 1308 and S.B. 1309 were introduced in the Arizona Senate. S.B. 1309 provided that Arizona citizenship could be obtained only if a person was 1) born or naturalized in the United States, 2) a lawful Arizona resident, and 3) subject to the jurisdiction of the United States; the bill then defined "subject to the jurisdiction of the U.S." as someone who has at least one parent who is 1) a U.S. citizen or national who owes no allegiance to another country, 2) an immigrant who has permanent resident status, or 3) a person who does not have citizenship or nationality in any other country. 63 Thus, a child born to illegal immigrants would not have Arizona citizenship. S.B. 1308 then authorized and directed the governor to enter into an Interstate Birth Certificate Compact,6 which would require party states to distinguish between persons born subject to the jurisdiction of the United States and those who are not on official birth records. In other words, the birth certificates of children born to illegal aliens would state that they are not citizens.

Nationwide Task Force to Halt Anchor Baby-Exploited Illegal Alien Invasion, STATE LEGISLATORS FOR LEGAL IMMIGRATION (Oct. 19, 2010), http://www.statelegislatorsforlegalimmigration.com/Newsltem.aspx?NewslD=9833. 59. Preston, supra note 57, at Al. 60. Alia Beard Rau, Bigger Crackdown in Works, AIz. REPUBLIC, Feb. 23, 2011, at Al [hereinafter Rau, Crackdown], available at http://www.azcentral.com/news/articles/ 2011/02/23/20110223arizona-immigration-bills-controversy.html. 61. Id. Previous efforts in Arizona to abolish birthright citizenship also failed. An initiative called the Birthright Citizenship Alignment Act, which would have required hospitals to check the citizenship of the parents of newborns, failed to make the ballot in 2007. The following year, former state senator Karen Johnson proposed to change the way the state issues birth certificates, but the bill was never given a committee hearing. See Alia Beard Rau, Pearce, Coalition Take Aim at 14th Amendment, ARIZ. REPUBLIC, Oct. 20, 2010, at BI [hereinafter Rau, Coalition], available at http://www.azcentral.com/news/ election/azelections/articles/2010/10/19/20101019deny-us-citizenship-to-children-of- illegal-immigrants-russell-pearce-national-pl.html. 62. Rau, Crackdown, supra note 60. Also in the legislative mix was S.B. 1611, an omnibus bill that would have prevented undocumented children from attending school, prohibited illegal immigrants from driving, and barred illegal immigrants from obtaining a marriage license. Id. 63. Id.; S.B. 1309, 50th Leg., 1st Reg. Sess. (Ariz. 2011). 64. S.B. 1308, 50th Leg., 1st Reg. Sess. (Ariz. 2011). 65. Id. 700 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011

Both Senate Bill 1308 and 1309 passed the Senate Appropriations Committee and were sent to the full Senate.66 Democrats and moderate Republicans argued that the bills detracted from the state's efforts to attract jobs and restore the economy, and on March 17, 2011, both bills failed. Although the bills' sponsors believed that Arizona would be the first state to abolish birthright citizenship, the task proved to be more difficult than they anticipated.

2. Motivating Factors for Change

Advocates for restricting birthright citizenship are concerned with the growing numbers of unauthorized immigrants living in the United States. As of March 2010, 11.2 million unauthorized immigrants lived in the United States, 3.7% of the nation's population.68 In 2009, approximately 350,000 children were born who had at least one unauthorized-immigrant parent, making up 8% of all U.S. births.69 Four million U.S.-born children of unauthorized immigrant parents resided in this country as of 2009, along with 1.1 million foreign-born children of unauthorized immigrant parents. Proponents for reform are further motivated by the perception that birthright citizenship provides a route for illegal alien parents to obtain citizenship. Under certain circumstances, parents of citizen children may avoid deportation, and once a citizen child reaches twenty-one, he or she may petition for legal permanent resident status on behalf of his or her parents.72 Furthermore, illegal alien parents may obtain welfare and other public benefits for their citizen children.73

66. Id. 67. Id. The primary sponsor of the bills, Sen. Ron Gould, a Republican from Lake Havasu City, stated that the bills' aim was to challenge the current interpretation of the Fourteenth Amendment and that at least one parent of every child born should have to prove that they have legal status. Rau, Crackdown, supra note 60. On the other hand, Sen. Krysten Sinema, a Phoenix Democrat, stated her disapproval, reasoning that the bill would deny citizenship to children born to parents with dual citizenship. Id. Sen. Rich Crandall of Mesa was the only Republican to vote against the bill, and he indicated he did not believe similar bills in other states would pass. Id. 68. PASSEL & COHN, supra note 8. 69. Id. Of the unauthorized immigrants who became parents in 2009, 61% arrived in the United States before 2004, 30% arrived from 2004 to 2007, and 9%arrived from 2008 to 2010. Id. 70. JEFFREY S. PASSEL & PAUL TAYLOR, PEw HISPANIC CTR., UNAUTHORIZED IMMIGRANTS AND THEIR U.S.-BoRN CHILDREN 1 (2010), available at http://pewhispanic.org/files/reports/125.pdf. 71. SCHUCK&SMITH,supra note 15, at 110-11. 72. Id. at 111. 73. Id. Citizenship as a Birthright 701

Despite the perception that these children provide a ticket to citizenship for their parents, that is typically not the case.74 The bar for avoiding deportation is quite high; first, a parent must meet several criteria, including being in the United States for ten years; then she must prove extreme hardship, a standard met only if "the removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 75 Deportation cancellations are granted only upon very narrow grounds and under the discretion of the immigration judge.76 More often, citizen children are subjected to constructive, or de facto, deportation. 7 Constructive deportation occurs when a child who legally has the right to remain in the United States must leave the country because his illegal alien parents are being deported.7 8 The child will likely have to accompany his parents back to their home country because he has no other family members to support him in the United States. 79 De facto deportation is not considered a violation of a citizen child's constitutional rights. For instance, in Coleman v. United States, the U.S. District Court for the Northern District of Illinois held that a citizen child's constitutional rights were not violated through constructive deportation because a removal order on the child's parent does not have any legal effect on the child.8 0 The court reasoned that the removal order for a noncitizen parent did not prevent the child from exercising his constitutional rights and that the child's hardship was not of constitutional magnitude.8 The child remained free to live in the United States, even if that option was impractical. 82 Furthermore, illegal aliens who have given birth to citizen children do not gain favored status over aliens who comply with immigration laws.8 3 This principle is demonstrated in Gonzales-Cuevas v. Immigration and Naturalization Service, in which the Fifth Circuit Court of Appeals found that the deportation of

74. See, e.g., Jessie M. Mahr, Protecting Our Vulnerable Citizens: Birthright Citizenship and the CallforRecognition of Constructive Deportation, 32 S. ILL. U. L.J. 723 (2008) (discussing constructive deportation); Amanda Colvin, Birthright Citizenship in the United States: Realities of De Facto Deportation and International Comparisons Toward Proposinga Solution, 53 ST. LouIs U. L.J. 219 (2008) (arguing that de facto deportation of citizen children is an undeniable result of the deportation of illegal immigrant parents). 75. 8 U.S.C. § 1129(b)-(d) (2010). 76. Immigration and Nationality Act, 8 U.S.C.A. § 1229(b) (2008) (providing that an applicant must be present for ten years preceding the application, exhibit good moral character, and not have been convicted of a crime. Once those criteria are met, the noncitizen must show exceptional and extremely unusual hardship to their citizen child.). 77. Mahr, supra note 74, at 729. 78. Id. 79. Id. 80. Coleman v. United States, 454 F. Supp. 2d 757, 768 (N.D. Ill. 2006). 81. Id. 82. Id. 83. Gonzales-Cuevas v. INS, 515 F.2d 1222, 1224 (5th Cir. 1975). 702 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011 immigrant parents did not violate any constitutional rights of citizen children. 84 The court also found that a parent who remained in the United States illegally should not be allowed to remain while awaiting legalization.8 5 Still, the perception that anchor babies are a problem persists, and the United States can look to the United Kingdom and Ireland to assess the effects of immigration policy changes.

III. COMPARATIVE ANALYSIS WITH OTHER NATIONS

To determine what the United States should do to address the anchor baby controversy, it is helpful to compare what has been done in other countries. Changes in the United Kingdom and Ireland illustrate potential options for U.S. policy. The United Kingdom passed legislation to end automatic citizenship for children born to noncitizens, while Ireland provided its citizens the opportunity to vote on a public referendum to change its birthright citizenship policy.8 6 Patterns of immigration and policy in both the United Kingdom and Ireland share similarities with those in the United States, so these countries provide informative comparisons.

A. The United Kingdom

Before the passage of the British Nationality Act of 1981, the United Kingdom granted birthright citizenship. Similar to the United States, the United Kingdom began with an open-border immigration policy, and after an influx of immigrants seeking jobs after World War II, the U.K. began imposing restrictions. 87 The political climate surrounding the passage of the British Nationality Act of 1981 was strikingly similar to U.S. immigration history. In 1608, Calvin v. Smith established the U.K.'s birthright citizenship policy by holding that citizenship was granted based on birth within the United Kingdom.88 Calvin has been recognized as the origin of allegiance in English common law; a person's status was determined by his or her relationship to the

84. Id. 85. Id. 86. British Nationality Act 1981, c. 61, § 1 (Eng.); Irish Nationality and Citizenship Act 2004, (Act No. 38/2004) (Ir.), available at http://www.inis.gov.ie/en/INIS/ Act2004.pdf/Files/Act2004.pdf. 87. Kevin C. Wilson, And Stay Out! The Dangersof Using Anti-Immigrant Sentiment as a Basis for Social Policy: America Should Take Heed of DisturbingLessons from Great Britain'sPast, 24 GA. J. INT'L & CoMP. L. 567,569 (1995). 88. Calvin v. Smith (1608) 77 Eng. Rep. 377 (K.B.); see RANDALL HANSEN, CITIZENSHIP AND IMMIGRATION IN POST-WAR BRITAIN 38 (2000). Citizenship as a Birthright 703 king.89 Calvin was in effect until the British Nationality Act of 1981, which ended automatic citizenship.

1. The Road to the British Nationality Act of 1981

In the years immediately following World War II, Britain needed immigrants to rebuild its economy due to labor shortages and massive emigration.90 As an influx of individuals from other countries in the British Empire rushed to Britain looking for better opportunities, restrictions on immigration practices began to emerge. 9' Due to political, social, and economic factors, the United Kingdom passed a series of immigration laws. 92 Racial tensions between immigrants and British citizens played an integral role.93 The British Nationality Act of 1948 provided a distinction between citizens from the United Kingdom and British subjects from U.K. colonies. 94 Before the passage of the 1948 Act, both groups enjoyed identical rights, and their status as British subjects allowed them to enter freely into the United Kingdom. 95 The 1948 Act adopted the term "commonwealth citizen" to refer to British subjects and allowed individual Commonwealth countries to determine who qualified for this status.96 However, the 1948 Act did not solve the immigration issue in the United Kingdom, as commonwealth citizens continued to immigrate to the country.97 In 1958, violence erupted due to the racial tension and discrimination that commonwealth immigrants faced. 98 Later that fall, riots in Nottingham and Notting Hill propelled the issue of immigration into the national spotlight.99 By 1962, nearly 500,000 commonwealth citizens, largely from India and Pakistan, had settled in Britain.oo The flood of immigrants caused

89. HANSEN, supra note 88, at 38. 90. Wilson, supra note 87, at 569. 91. Id. 92. Id. at 572. 93. Id. 94. HANSEN, supra note 88, at 46. The 1948 Act distinguished between Citizens of the United Kingdom and Colonies (CUKCs), who were citizens of the United Kingdom and British subjects within the dependent colonies, and Citizens of Independent Commonwealth Countries (CICCs), who included British subjects who were citizens of independent members of the Commonwealth such as Canada, New Zealand, the Union of South Africa, India, and Pakistan. Id. 95. Id. at 47. 96. Mark F. McElreath, Degrading Treatment - From East Africa to : British Violations ofHuman Rights, 22 COLUM. HUM. RTs. L. REv. 331, 336 (1991). 97. Id. 98. Wilson, supra note 87, at 571. 99. Id. 100. Zig Layton-Henry, Great Britain, in TOMAS HAMMAR, EUROPEAN IMMIGRATION POLICY: A COMPARATIvE STUDY 101 (1985). 704 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011 employment and housing shortages.'01 The citizenry was concerned that immigrants were taking employment opportunities away from Brits, and the public demanded reforms. 02 This led the United Kingdom to pass laws in an attempt to control and regulate commonwealth citizen immigration.' 03 The British government enacted the 1962 Commonwealth Immigrants Act, which regulated the flow of immigrants with a system of employment vouchers.'0 The 1962 Act restricted the right of abode in the United Kingdom to those born within the United Kingdom territory and who had been issued a United Kingdom passport. 05 Additional controls were added in 1968 to restrict immigration of commonwealth citizens of Asian descent from East Africa due to an incident known as the Kenyan Asian Crisis of 1968.106 During this crisis, the Kenyan government passed policies restricting Kenyan Asians' work permits to certain sectors of the economy and prohibiting renewal. 07 These policies reflected an effort to drive Asians out of the economy.' 08 Because the Kenyan Asians were no longer able to fully find employment in Kenya, many came to the United Kingdom.' 0 9 The British government passed the Commonwealth Immigrants Act of 1968,110 which required all citizens of the United Kingdom and colonies with no substantial connection to the United Kingdom to obtain an entry voucher before arriving in the United Kingdom."' This expanded regulation meant that all citizens of the United Kingdom were subject to the voucher system, "unless they, or at least one parent or grandparent, had been born, adopted or naturalized in the United Kingdom, or registered as a citizen of the United Kingdom or its colonies."'12

101. HANSEN, supra note 88, at 120. 102. Id. 103. Id. 104. Layton-Henry, supra note 100, at 101. 105. McElreath, supra note 96, at 336-37. 106. Asians had lived in East Africa for centuries before European powers divided the continent amongst themselves, but many arrived in the mid-nineteenth century after the expansion of British hegemony. See Randall Hansen, The Kenyan Asians, British Politics, and the Commonwealth Immigrants Act, 1968, 42 HIST. J. 809, 814 (1999), available at http://homes.chass.utoronto.ca/~rhansen/Articlesfiles/19991.pdf. They came to Kenya as laborers and traders. Id. Kenyan Asians, in terms of nationality, along with other members of the British Empire, were British subjects before the war and United Kingdom citizens after. Id. at 815. 107. Id. at 809-10. 108. Id. 109. Id. at 810. 110. Layton-Henry, supra note 100, at 104. 111. Id. 112. Michael Robert W. Houston, Birthright Citizenship in the United Kingdom and the United States: A Comparative Analysis of the Common Law Basis for Granting Citizenship to Children Born to Illegal Immigrants, 33 VAND. J. TRANSNAT'L L. 693, 703 (2000). Citizenship as a Birthright 705

The 1968 Act sought to control "colored" immigration from the Commonwealth while allowing most white Commonwealth citizens of British descent unrestricted access."' As a means to achieve selective immigration restrictions, the 1968 Act distinguished between "patrials" and "non-patrials."ll 4 Patrials were citizens of the United Kingdom and its colonies who were entitled to citizenship because of a close connection with the United Kingdom by birth, descent, or marriage." 5 Furthermore, the way in which the requirements were structured caused the limitations to fall disproportionately on those CUKCs of non-European descent, which were principally people of color.' 16 This would be the beginning of distinguishing between British citizens based on being a direct descendant of parents originally from the United Kingdom. "

2. The British Nationality Act of 1981

Despite immigration reforms passed by Parliament, concerns remained that immigrants were causing labor and housing shortages." 8 Parliament responded to these concerns with the passage of the British Nationality Act of 19 8 1.119 The 1981 Act restricted Commonwealth immigration by ending the common law principle of territorial birthright citizenship and limiting British citizenship to those with close ties to the United Kingdom.120 A number of concerns motivated the passage of the 1981 Act.121 Anti- immigrant sentiment was one of the Act's driving forces.122 Violent confrontations between militant left- and right-wing groups exploded in Britain in the 1970s due to anti-immigrant racial tensions.123 In 1977, many marches and violent confrontations also transpired. 124 The political group National Front had become very popular by 1979 and became a strong contender in the elections.125 Through their new leader, Margaret Thatcher, the Conservatives responded to the

113. Layton-Henry, supra note 100, at 104. 114. Id. at 109; Houston, supra note 112, at 693. 115. Layton-Henry, supra note 100, at 109. The Immigration Act of 1971 further clarified the patrial and non-patrial distinction established in the 1968 Act. This 1971 Act recognized that patrials were entitled to a "right of abode" in the United Kingdom, were free from immigration control, and could live and work in the United Kingdom without any restrictions. Id. The voucher was replaced with a temporary work permit, which, unlike the voucher, did not carry the right of permanent residence. Houston, supra note 112, at 704. 116. Layton-Henry, supra note 100, at 109. 117. Id. 118. See HANSEN, supra note 88, at 212. 119. Id. 120. Id 121. See id. 122. Wilson, supra note 87, at 571. 123. Id. at 576. 124. Id. 125. Id. 706 Arizona JournalofInternational & Comparative Law Vol. 28, No. 3 2011

National Front by taking a tough position on immigration.126 In an interview in January 1978, Thatcher identified with the people's concerns over the prospect of the number of Pakistani and Commonwealth Brits doubling to 4 million by the end of the century, remarking that "people are really rather afraid that this country might be rather swamped by people with a different culture."1 27 Other politicians echoed Prime Minister Thatcher's concerns. Conservative British politician Timothy Raison, addressing the Conservative Party Conference in 1980 stated: "We have got finally to dispose of the lingering notion that Britain is somehow a haven for all those whose countries we once ruled."l 28 For these reasons, additional citizenship categories were created.129 Proponents for change were also concerned that people born before the 1981 Act could return to their home countries and transmit their citizenship to their future children-leaving a pool of people who have British citizenship with little or no real connection to the United Kingdom.' 30 The British Nationality Act of 1981 abolished the CUKC category and repealed the British Nationality Act of 1948.131 It also introduced a definition of citizenship exclusively for the United Kingdom.' 32 The 1981 Act replaced territorial birthright citizenship with a parentage requirement by proclaiming that a person born in the United Kingdom "shall be a British citizen if at the time of the birth his mother or father is a British citizen"; or if his parents are "settled in the United Kingdom or that territory."' 33 As a result, there were three types of British citizenship.134 First and most fundamentally, British citizenship was defined to exclude colonies for the first time.' 35 Citizenship replaced "patriality" as a legal concept, and all persons who had the right of abode were granted British citizenship. 1 The Act also defined two additional categories: British Dependent Territories Citizenship (BDTC) and British Overseas Citizenship (BOC). 1

126. Id. 127. Wilson, supra note 87, at 571; TV Interview of Margaret Thatcherfor Granada World in Action (Granada TV broadcast Jan. 30, 1978), transcript available at http://www.margaretthatcher.org/document/103485. 128. Charles Blake, Citizenship, Law and the State: The British Nationality Act of 1981, 45 MOD. L. REv. 179, 182 (1982). 129. See id. 130. Id. at 184-85. Similar to the Kenyan Asians' crisis, the Ugandan Asians' crisis played a role in the Act's passage. In 1972, Ugandan President Idi Amin decided to expel the substantial community of Asians living in Uganda; many were second- and third- generation residents of Uganda, and over 28,000 Ugandan Asians immigrated to the United Kingdom. See HANSEN, supra note 88, at 197-201. 131. Layton-Henry, supra note 100, at 109. 132. Id. 133. British Nationality Act 1981, c. 61, § 1. 134. Layton-Henry, supra note 100, at 109. 135. HANSEN, supra note 88, at 213. 136. Id. 137. Id. The majority of individuals who were classified as BDTCs were residents of Hong Kong, Bermuda, the British Virgin Islands, and Gibraltar. BOCs were granted as a Citizenship as a Birthright 707

Individuals in the categories of BDTC and BOC did not possess the right to enter the United Kingdom.'3 8 This Act eliminated birthright citizenship in the United Kingdom and is still in effect today.

3. Consequences of the British Nationality Act of 1981

The 1981 Act has significant downsides. It has been attacked as discriminatory, 39 and it abandoned the English and British tradition of accepting those who were born in the United Kingdom as having British identity, leaving them stateless.140 Critics of the 1981 Act asserted that the additional categories were fueled by anti-immigrant sentiment against the Hong Kong Chinese; at the time the 1981 Act became effective, it was primarily the Hong Kong Chinese who no longer had the right to reside in Great Britain. 141 The Hong Kong Chinese had been issued passports that read "British Dependent Territories Citizenship" under "Nationality."l 42 This was changed to read "British," and within six months after the 1981 Act was in effect, all new assports were stamped "Holder subject to control under the Immigration Act."l 4 This stamp was then replaced with a new endorsement that stated: "Holder has the right of abode in Hong Kong."' It was then more difficult for Hong Kong Chinese to enter the United Kingdom. Derek W. Partridge, a former civil servant who headed the Treaty and Nationality Department in the Foreign Office, stated that the 1981 Act's creation of BDTCs "was entirely because of the perceived need to stop immigration from Hong Kong." 4 5 Additionally, Claude Moraes, director of the Joint Council for the Welfare of Immigrants stated:

[The] people of Montserrat do not just imagine they are second- class citizens-the British Nationality Act of 1981 ensured that they, along with the people of Hong Kong, were presented with residual category to all CUKCs who received neither of the other two citizenships. Essentially, the BOC category encompassed stateless persons within independent members of the Commonwealth, mainly East African Asians who were waiting to enter the United Kingdom as well as individuals from Malaysia. Id. 138. HANSEN, supra note 88, at 214. 139. Id. at 207. 140. Id. at 215. 141. Richard Klein, Immigration Laws as Instruments of Discrimination:Legislation Designed to Limit Chinese Immigration into the United Kingdom, 7 TOURO INT'L L. REv. 1, 19 (1997). 142. Id. at 21-22. 143. Id. 144. Id. at 22. 145. Dipankar de Sarkar, Britain: Colonial Review Prompts Calls for Citizenship, IPSNEWS, Sept. 1, 1997, available at http://ipsnews.net/news.asp?idnews=67986. 708 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011

the anomalous and insulting fact of being British nationals with no right of abode, free movement, or the right to benefits and financial assistance. 146

Another effect of the 1981 Act was that people born to parents who were not British citizens could end up stateless. 147 For example, one woman who had lived in the United Kingdom since she was four years old suddenly found she was not a British citizen. 148 In addition, the categories created by the Act meant that people who used to have the right to enter the United Kingdom found themselves unable to do so. Although the issues leading to the elimination of birthright citizenship in the United Kingdom did not primarily focus on the issue of anchor babies, the 1981 Act is worthy of comparison because the historical dynamics in the United Kingdom's approach to immigration are similar to those of United States.

B. Ireland

Before 2004, anyone born in Ireland was considered a natural-born citizen.149 A perceived "anchor baby" crisis was the catalyst to the repeal of birthright citizenship in Ireland. 50 A series of court cases concerning the rights of non-national parents with Irish-born children and crowded maternity hospitals in Dublin helped fuel the charge.1 5' Many Irish citizens became opposed to what became known as "citizenship tourism,"l 52 the practice of traveling to a country that grants automatic citizenship solely to give birth to a child who will be entitled to citizenship in that country.' 5 Many believed these "tourists" (the parents of the child) would rely on the child's citizenship to gain residency in Ireland for themselves.1 54

146. Id. 147. Blake, supra note 128, at 194. These children can be registered as British citizens if they have been in the United Kingdom for at least five years and are between the ages of ten and twenty-two. Id. at 194-95. 148. Hannah Crown, Fighting to Remain Here After 43 Years, LOCAL LONDON, Mar. 21, 2007. 149. Irish Nationality and Citizenship Act 2004 (Act No. 38/2004), available at http://www.inis.gov.ie/en/INIS/Act2004.pdf/Files/Act2004.pdf. 150. Angele Smith, The Irish Citizenship Referendum (2004): Motherhood and Belonging in Ireland, in CITIZENSHIP, POLITICAL ENGAGEMENT, AND BELONGING: IMMIGRANTS IN EUROPE AND THE UNITED STATES 60, 67 (Deborah Reed-Danahay & Caroline B. Brettell eds., 2008). 151. See id. 152. Id. at 69-70. 153. See id. 154. See id. Citizenship as a Birthright 709

1. The Irish Nationality and Citizenship Act of 1935 and the "Right to Family"

The Irish Nationality and Citizenship Act of 1935 provided that anyone born in Ireland on or after December 6, 1922, was considered a natural-born citizen and granted automatic citizenship."'s Birthright citizenship created the possibility for parents of Irish citizen-children to remain in Ireland because of their Irish citizen connection.156 The 1935 Act reflected the notion that all children should be treated equally at birth. 1 7 The Irish Nationality and Citizenship Act of 1956 extended this right to any person born in .15 8 The 1956 Act was enacted to make Irish citizenship more accessible to those born in Northern Ireland and to descendants of Irish emigrants. 159 Under the 1935 Act, natural-born citizens residing outside the state could claim Irish citizenship without needing to register.'6 0 Additionally, second-generation Irish expatriates could register at any time.1 61 The intent of the 1935 Act was for "Irish law to conform as much as possible to British law in the hope of persuading Britain to acknowledge the separate international status of Irish nationality," while the 1956 Act reflected Ireland's "desire to claim both the inhabitants of Northern Ireland and the descendants of Irish emigrants as part of the Irish nation."' 62 Noncitizen parents continued to assert their rights to remain in Ireland and invoked Article 41 of the Irish Constitution to fight deportations. 163 Article 41 of the Irish Constitution bolsters the chances noncitizen parents may remain in Ireland with their Irish-born children because it recognizes the family as "the natural and primary and fundamental unit group of society" and states that the State "guarantees to protect the family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State."16 In 1989, Ireland's courts embraced the "right to family approach" in the landmark case Fajujonu v. Ministerfor Justice.165 In Fajujonu,Ireland's Supreme

155. Irish Nationality and Citizenship Act 1935, (Act No. 13/1935), available at http://www.irishstatutebook.ie/1935/en/act/pub/0013/print.html. 156. Colvin, supra note 74, at 238. 157. Karolina Rostek & Gareth Davies, The Impact of Union Citizenship on National Citizenship Policies, 22 TUL. EUR. & Civ. L.F. 89, 125 (2007). 158. Id. at 125-26. 159. Mary E. Daly, Irish Nationality and Citizenship Since 1922, 32 IRISH HiST. STUD. 377,402 (2001). 160. Id. 161. Id. 162. Id. at 406. 163. Colvin, supra note 74, at 238. 164. IR. CONST., 1937, art. 41, available at http://www.taoiseach.gov.ie/attachedfiles/ Pdf/o20files/Constitution%20of/20Ireland.pdf. 165. Fajujonu v. Minister for Justice, [1990] 2 I.R. 151 (Ir.). 710 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011

Court held that an Irish-born child has the right to the company and care of his or her parents within the family unit and that there must be "predominant and overwhelming" reasons for breaking up a family of non-nationals and Irish citizens.166 The court reasoned that Irish-citizen children have a "constitutional right to the company, care, and parentage of their parents within a family unit." Illegal immigrants "could be deported only if a grave and substantial reason associated with the common good required it."' 68 The focus was primarily on the rights of the child as an Irish citizen, and, as a result of this decision, non-national parents of Irish-born children could apply for residency.' 69 For several years, the decision in Fajujonu served as the legal basis to accept non-national parents of Irish citizen children as residents.' 70 Applications to remain in Ireland on the basis of parenthood increased with immigration. Permission to remain as a parent was granted to 142 new asylum applicants and 107 former asylum applicants in 1996 and 1997.172 There were 6,570 applications in 2001 and 8,620 in 2002. More than 4,000 noncitizen immigrants were granted residency in 2002 because they were parents of Irish born babies. 174 Noncitizens wanted the economic opportunities Ireland provided, and some recognized that because their child was born in Ireland, they could petition for residency.' 75 As more noncitizens took advantage of this policy, some hostility developed over the perceived abuse of the immigration system. 176 Birthright citizenship was seen as a cause of a "foreign baby boom."'17 The number of babies born to noncitizens increased from 2% in 1999 to almost 20% in 2004.178 Notably, "70% of the non-Irish mothers came from sub-Saharan Africa."'" Irish Prime Minister Bertie Ahern saw a need for reform, stating that the birthright citizenship policy was being "rampantly abused" because 60% of all asylum seekers were pregnant when they applied. 80 In 2001, more than 1,200 asylum seekers were granted the ability to stay in Ireland after the births of their children, marking a dramatic increase in the

166. Id; Smith, supra note 150, at 68; see also Colvin, supra note 74, at 239 (discussing the right to family approach in Fajujonu). 167. Fajujonu, 2 I.R. at 162; see Colvin, supra note 74, at 238. 168. Fajujonu,2 I.R. at 162; Colvin, supra note 74, at 239. 169. Colvin, supra note 74, at 239. 170. Bernard Ryan, The Celtic Cubs: The Controversy Over Birthright Citizenship in Ireland,6 EUR. J. MIGRATION & L. 173, 181 (2004). 171. Id. 172. Id 173. Id. 174. Rostek & Davies, supra note 157, at 127. 175. See generally id. 176. Id. 177. Id. 178. Id 179. Rostek & Davies, supra note 157, at 127. 180. Id. Citizenship as a Birthright 711 number of babies born to non-nationals.' 1 In 2000, "1,515 foreign nationals, more than 900 of them asylum seekers, were granted permission to stay in Ireland because of the birth of children."1 82 An increase in non-nationals giving birth in Dublin maternity hospitals added to the concerns' 8 3 and lent support to claims that asylum seekers were traveling to Ireland solely to obtain automatic citizenship for their children.184 In addition, doctors said that many women were arriving in Ireland late in their pregnancies with little or no previous prenatal care and without medical records.185 Authorities worried that the "high numbers of non-national births occurring in Dublin hospitals meant that women were targeting Ireland because of its automatic citizenship rights of children born in the state."1 86 Many labeled this strategy as "citizenship shopping" and the women as "citizenship tourists" or "maternity tourists" and viewed them as a "threat to the integrity of Irish 18 7 citizenship."' Reports suggest that the immigrants were motivated less by citizenship and more by other advantages Ireland provided. Many said they traveled to Ireland to give birth to take advantage of the stronger Irish economy.18 8 One woman stated: "In , when you have a baby there, there is no future for them. I want my children to have a future, free movement. Tomorrow they will have a future."1 89 For a woman from South Africa, Ireland was a place with less violence and disease. 190 For a woman from the Democratic Republic of Congo, Ireland sheltered her daughter from possible political retribution.191 Others came to Ireland seeking a safer birth; the mortality rate for women in pregnancy and childbirth in Ireland was fewer than 1 in 10,000, compared with sub-Saharan Africa, for instance, which was 1 in 13.192 Some women said having a caesarean section at home would be more costly and dangerous;193 Ireland's state-funded maternity hospital covers the costs for asylum seekers. 194

181 Jerome Reilly, Births Give Rights to Asylum-Seekers, INDEPENDENT, Sept. 2, 2001, http://www.independent.ie/national-news/births-give-rights-to-asylumseekers-510212.html. 182. Id 183. Id. 184.Id. 185. Smith, supra note 150, at 69. 186. Id. 187. Id. 188. Dianna J. Shandy, Irish Babies, African Mothers: Rites of Passageand Rights in Citizenship in Post-MillennialIreland, 81 ANTHROPOLOGICAL Q. 803, 808 (2008). 189.Id. at 815. 190.Id. at 815-16. 191.Id. at 816. 192. Id. 193. Shandy, supra note 188, at 816. 194. Id. 712 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011

The sentiment for reform continued through 2003, when the heard the case Lobe and Osayande v. Minister for Justice.' In Lobe, the Supreme Court of Ireland restricted the residency rights of noncitizen parents of Irish-born children, finding that, in the interest of the common good, which included the integrity of the asylum process, the Prime Minister could deport the non-national parents of an Irish-born citizen.' 96 By balancing the interests of Irish citizens with those of noncitizens, the court found that non- national parents could be deported to protect the asylum process from non- nationals whom the public perceived as taking advantage of the system.' 97 While opponents argued that such a result would be unjust because it would result in the de facto removal of Irish citizen children, the Supreme Court reasoned that this concern was not legitimate because the protection and care of the Irish child could be fulfilled outside of the state.' Following the Lobe decision, Prime Minister Ahern announced that decisions regarding the removal of non-national parents would be made on a case-by-case basis.'99 The Lobe decision was quickly followed by another case involving immigration: Chen v. Secretary of State for the Home Department. In Chen, Man Lavette Chen was a Chinese national who entered the United Kingdom in May 2000 when she was six months pregnant and went to to give birth. 200 The court discussed that "under section 6(1) of the Irish Nationality and Citizenship Act of 1956, which was amended in 2001 and applies retroactively . . . Ireland allows any person born on the island of Ireland to acquire Irish nationality." 20 1 "Under section 6(3), a person born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any other country." 202 Because of those rules, Chen's daughter "was issued with an Irish passport in September 2000."203 Chen sought the right to reside in the United Kingdom based on her daughter's Irish citizenship. 204 The Chen court held that as long as the claimants did not pose a financial burden on the host state, they had the unrestricted right of movement throughout the European Union. 205 The court reasoned that the refusal to allow the parent who is the caregiver of a child with a right of residence to reside with that child "would deprive the child's right of residence of any useful effect, 206

195. Lobe & Osayande v. Minister for Justice, [2003] I.E.S.C. 3 (Ir.); Smith, supra note 150, at 68. 196. Smith, supra note 150, at 68. 197. Id. 198. Id. 199.Id. 200. Chen v. Sec'y of State for the Home Dep't., [2004] E.C.R. 1-9925 (Ir.). 201.Id. 202. Id. 203. Id. 204. Id. 205. Chen, E.C.R. 1-9925; Smith, supra note 150, at 68. 206. Chen, E.C.R. 1-9925. Citizenship as a Birthright 713

These cases allowed the anchor baby phenomenon to continue as non- national mothers of Irish-born children were able to attain residency solely by virtue of giving birth within Ireland. Allowing these non-national mothers to stay angered many Irish citizens.

2. The 2004 Citizenship Referendum

The Irish public's frustration reached an all-time high in 2004.207 That year, advocates for immigration reform proposed to amend the Irish Constitution to limit citizenship to individuals who have at least one Irish parent. 208 Ireland's Constitution provided that every person born in Ireland was part of the Irish Nation; the proposed amendment was not intended to replace this provision. 209 Instead, the amendment would add a new article providing that a person born in Ireland would "not be entitled to be an Irish citizen unless a parent of that person has, during the period of four years immediately preceding the person's birth, been a resident of Ireland for a period of three years or periods of which the aggregate is not less than three years."210 The effort to amend the Irish Constitution was spearheaded by Parliament, which declared the amendment necessary to preserve the integrity of Irish citizenship and to correct the abuses of the existing system; namely, "citizenship tourism" demonstrated in the Chen opinion. 211 Supporters of the amendment maintained that after the Chen opinion, "there would be an increase in the number of persons coming to Ireland to obtain citizenship for their children, which would in turn cause difficulties in Ireland's relations with other member states."212 The Irish Parliament's campaign was met with strong opposition from individuals who claimed that the proposed amendment would stir up racism.213 Other members of Parliament argued that the change would breed discrimination by creating two categories of children born in Ireland-those with citizenship and those without.214 Adoption of the amendment would mean "two children born in the same maternity ward on the same day will enjoy different legal and constitutional rights," one member pointed out.215 Opponents further argued that the proposed amendment was unprecedented because, unlike most previous proposals on individual rights, it

207. Smith, supra note 150, at 69. 208. Id. at 69-70. 209. Irish Nationality and Citizenship Act 2004 (Act No. 38/2004), available at http://www.inis.gov.ie/en/INIS/Act2004.pdf/Files/Act2004.pdf 210.Id. 211. Ryan, supra note 170, at 189. 212. Id. 213. Smith, supra note 150, at 71. 214. Id. 215. Brian Lavery, Voters Reject Automatic Citizenship for Babies Born in Ireland, N.Y. TIMEs, Jun. 13, 2004, at Al. 714 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011

would send a message to current and future immigrants that Ireland no longer welcomed "citizenship tourism."216 Only in rare occasions have Irish voters been asked to limit the rights of members of the community; Irish referendums have generally focused on social issues such as marriage, divorce, and abortion. 217 Supporters of the amendment responded by insisting that the immigration situation in Ireland demanded change.2 18 They pointed to the high numbers of non-nationals giving birth and insisted that the growing number of non-nationals bearing children in Ireland resulted in shortages of midwives and doctors.219 Opponents of the referendum attacked the statistics as flawed 220 and cited figures showing that "of the 60,000 babies born in Ireland in 2003, less than 1% was born to non-nationals arriving at hospitals late in their pregnancy."221 The bill, however, passed both houses of Parliament 222 and proceeded to the final step to amend the Constitution: citizen referendum. The referendum took place on June 11, 2004, and was approved by an overwhelming majority. 223 The "yes" vote ranged from 84% to 71%.224 Large numbers of voters came out to the polls to support the amendment as voter turnout was measured at 59.95%.225 Most voters insisted they were not influenced by racial factors.226 Voters such as Paddy Burke stated that "there was no racial element" to the vote; he supported the proposal because he agreed that Irish immigration law needed to be in line with other European countries so that the nation would no longer be seen as the "back door" to Europe. 227 Some voters, however, acknowledged their anti- immigration sentiment. According to reports, a third of "yes" voters admitted that they were motivated by anti-immigrant feelings, 36% felt the country was being

216. Timothy Collins, I Amend Therefore I Am? Discretionary Referenda and the Irish Constitution, 35 BROOK. J. INT'L L. 563, 578 (2010). 217. Id. at 577. 218. See Ryan, supra note 170, at 188. 219. Id. (quoting Minister of Justice Michael McDowell as stating, "[M]aternity services come under pressure because they have to deal at short notice with women who may have communications difficulties, about whom no previous history of the pregnancy or of the mother's health is known, and who in about half of cases of first arrival . . . are already at or near labour. Hospitals cannot predict the demand on resources from month to month, and all the resources in the world would be of little use in dealing with suddenly- presenting crisis pregnancies."). 220. Id. at 189 (pointing out that all births to non-nationals were lumped together and were taken from only some hospitals). 221. Smith, supra note 150, at 70. 222. Ryan, supra note 170, at 189; Ireland Votes to End Birthright, BBC NEWS, June 13, 2004, http://news.bbc.co.uk/2/hileurope/3801839.stm. 223. Ireland Votes to End Birthright,supra note 222. 224. Ryan, supra note 170, at 189. 225. Ireland Votes to End Birthright, supra note 222. The election included votes for representatives to local councils and the European Parliament, which also encouraged high voter turnout. Lavery, supra note 215. 226. See Lavery, supra note 215. 227. Id. Citizenship as a Birthright 715 exploited by immigrants, and 27% felt there were too many immigrants in the country."228 Thus, for many, the referendum expressed an anti-immigration stance.229

3. Consequences of the 2004 Amendment

Upon adoption of the amendment, the Irish Parliament enacted a policy program called the Irish Born Child Scheme 2005.230 The program entitled parents whose Irish citizen children were born before January 1, 2005, to submit applications for residency if they could prove that they were fulfilling their 2 3 parental role and had been a continuing resident since the birth of their child. 1 If the applicant met those requirements, he or she had to promise to uphold state law, make every effort to become economically viable within two years of being granted residency, and waive the right to bring into Ireland a spouse or children still in their country of origin.232 If granted residency, after staying in Ireland for five years, the applicant could then apply for citizenship by naturalization.233 There have been problems with this residency scheme.234 Those living in Ireland as residents face uncertain futures. 235 Almost 18,000 applications were received, and 17,000 applicants were given the right to remain in Ireland under the scheme for two years. 236 With some exceptions, those granted leave to remain must renew their applications in order to stay a further three years.237 The Immigrant Council of Ireland found that the renewal process might be applied unfairly to single parents.23823 The requirement to swear not to bring a spouse or children to Ireland has been seen as unduly harsh.239 Also, asylum-seeking families live in state-run accommodation centers, where they are not allowed to

228. Collins, supra note 216, at 578 (quoting John A. Harrington, Citizenship and the Biopolitics ofPost-nationalistIreland, 32 J.L. & Soc'Y 424, 448 (2005)). 229. Id. 230. See Smith, supra note 150, at 73. 231. Id. 232. Id. 233. Id. at 74. 234. See Groups Concern Over Irish Born Child Scheme, RTE NEWS (Jan. 3, 2007), http://www.rte.ielnews/2007/0103/children.html [hereinafter Groups Concern]. 235. Id. 236. Leave to Remain for Non National Parents of Irish Born Child, NEW TO TowN (Jan. 6, 2006), http://www.newtotown.ie/living-ireland/leave-remain-non-national-parents- irish-born-child-435.html. 237. Id.; Groups Concern, supra note 234. 238. Groups Concern, supra note 234. 239. Smith, supra note 150, at 73. 716 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011 cook or care for themselves, 240 work, or attend school. 241 Such restrictions make proving economic viability nearly impossible.242 According to Minister for Justice Michael McDowell, the backlog of asylum cases has been virtually eliminated as the number of applications continues to fall.243 The number of cases with the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal taking longer than six months to resolve was at 375 in 2005, down from 1,905 in 2004.24 The number of unsuccessful asylum applicants, who were then deported, also fell.245 After the referendum, McDowell pledged to find a considerate solution for non- nationals with Irish-born children.246 The year after the referendum, he said, 18,000 applications had been received; of those, 15,750 were given permission to remain, and 779 were refused.247 However, "he would not agree to family reunions as this would push the numbers from 18,000 to 50,000-80,000."248 He added that "in spite of the drop in asylum-seekers, the cost of providing services [was] still increasing." 249 Ireland's surge of "citizenship tourism" prompted changes in its immigration policy, just as the "anchor baby" problem has created political pressure to change immigration policy in the United States. The Irish experience thus can help guide the United States as it moves forward.

IV. LESSONS LEARNED FROM OTHER NATIONS: PROPOSING A SOLUTION

The consequences of ending birthright citizenship in the United Kingdom and Ireland provide guidance in answering whether the United States should continue to grant automatic citizenship to any child born in the United States.

A. United Kingdom

The United Kingdom eliminated birthright citizenship via legislative action. Unlike legislation in the United States, the 1981 Act was immune from judicial challenge because courts in the United Kingdom cannot strike down acts

240. Id. at 74. 24 1.Id. 242. Id. 243. Paul Cullen, Office Clears Backlog for Processing Asylum Cases, IRISH TIMES, Dec. 16, 2005, at 10. 244. Id. 245. Id. 246. Id. 247. Id. 248. Cullen, supra note 243, at 10. 249. Id. Citizenship as a Birthright 717 of Parliament. 250 The act, however, was judged in the court of public opinion. It was perceived as racially discriminatory, that its aim was to stop immigration from Hong Kong. It also was viewed as harsh because people who had been living in the United Kingdom their entire lives could find themselves without citizenship, and children born to non-British citizens would be stateless.251 The United Kingdom's model reflects the kind of reform desired by anti- immigration activists in the United States. Even if Congress or state legislatures mustered enough momentum to pass such a provision, it would share the shortcomings of Britain's law: children born to undocumented persons would be stateless and have no means to access any rights. It also likely would be seen as racially discriminatory, particularly among the rapidly growing Hispanic population, which could levy a heavy political blow to the provision's advocates, evidenced by the robust opposition to the 2011 legislative attempts.252 In addition, the passage of such legislation would set the stage for a constitutional challenge in the U.S. Supreme Court. Ultimately, this legislation might not withstand constitutional scrutiny because the United States has historically protected children born on American soil. In addition, the federal government has plenary power to regulate immigration; the federal government, rather than the states, has 253 the power to control immigration. Passing legislation similar to the British Nationality Act of 1981 might provide an end to the anchor baby debate by allowing the U.S. Supreme Court to issue a definitive decision on the matter.

B. Ireland

The United States also could address the anchor baby debate with a constitutional amendment similar to the one passed in Ireland. The process for passing an amendment presents a significant obstacle. The amendment would first have to garner support from two-thirds of both houses of Congress and three- fourths of the state legislatures, which would prove to be difficult. But the move would be ill advised for other reasons. As Ireland found, eliminating birthright citizenship does little to deal with the immigrants already present. Ireland's residency solution is messy, complicated, and unduly harsh, and the ultimate victims of the policy are children. In addition, already disadvantaged children are born stateless, with no remedy. Ireland also abandoned its pro-family policy; while the United States does not share the same commitment, amending the Constitution to exclude the children of illegal immigrants from citizenship would damage the truly innocent parties involved. Children who return to their parents' country of origin may

250. See ORG. FOR ECON. CO-OPERATION & DEv., EUROPEAN COMM'N, BETTER REGULATION IN EUROPE: UNITED KINGDOM 63 (2010). 251. Klein, supra note 141, at 19; Blake supra note 128, at 194. 252. Cattan, supra note 11, at 1. 253. Preston, supra note 57, at Al. 718 Arizona JournalofInternational & ComparativeLaw Vol. 28, No. 3 2011 experience harsh living conditions, cultural and language barriers, insufficient educational opportunities, and a lack of health care.254 Those who remain would live in constant fear of deportation. Also like Ireland, an amendment would stir up racial tension and create further rifts between citizens and immigrants.

V. CONCLUSION

Lessons from the consequences of the end of birthright citizenship in the United Kingdom and Ireland illustrate paths that would be difficult and perhaps disastrous in the United States. If the United States decided to tackle the issue of birthright citizenship through an amendment such as the one passed in Ireland, the result would fuel racial tension and damage children. Passing legislation similar to the United Kingdom would have similar downsides and would be unlikely to withstand constitutional scrutiny. Eliminating birthright citizenship ultimately does not solve the "anchor baby" problem and only creates new problems. Those wishing to discourage illegal immigration would be wise to seek less drastic options.

255. Alison M. Osterberg, Removing the Dead Hand on the Future: Recognizing Children's Rights Against ParentalDeportation, 13 LEWIS & CLARK L. REv. 751,755 (2009).