Campus Progress
Deporting Our Own: Immigration Laws Lead to Americans Being Sent From the Country
By Brian Stewart
August 9, 2011

For many undocumented young people living in America, the DREAM Act remains a beacon of hope for achieving their American Dream—earning a college degree, pursuing a career, and living in the United States without fear of deportation.

But there’s another group of young people being shortchanged by current immigration laws: U.S.-born children of undocumented immigrants. Born as legal American citizens under the 14th Amendment, they still become victims when their parents are deported or preemptively leave the country in fear of being deported.

“There is a real concern over U.S. citizen children getting constructively deported when their parents are removed and the kids go with them because they have no other family in the United States to take care of them,” says Elizabeth Wydra, chief counsel of the Constitutional Accountability Center. “When the framers of the 14th Amendment wrote birthright citizenship into the Constitution, they were really writing into the Constitution for the first time the unalienable rights of equality.”

Yet a handful of elected officials are advocating for revoking that basic right of birthright citizenship from these young Americans. Last month, Rep. Duncan Hunter (R-Calif.) said at a tea party rally that he wants to deport children of undocumented immigrants who were born in America. And sadly, Hunter isn’t alone—more than 90 members of Congress support legislation that would prevent children born in America to unauthorized immigrants from gaining immediate citizenship.

Members of the far-right, anti-immigration camp are trying to turn birthright citizenship into a “political wedge issue,” says Marshall Fitz, director of Immigration Policy at the Center for American Progress (the umbrella organization for Campus Progress).

Fitz co-authored a brief on the effects of eliminating birthright citizenship in May and found that policy beside the point.

“That’s the sole reason [for the debate over birthright citizenship.] There’s not policy-based reason,” Fitz says. “This is a move that’s purely driven by the xenophobic right and has caught fire in the right-wing media to such an extent that some of the talking points of that xenophobic right have been mimicked by elected leaders.”

Politicians paint young children of undocumented immigrants as a threat, but as Perla Trevizo’s reporting for the Chattanooga Times Free Press shows, that couldn’t be further from the truth. Trevizo told the story of Jennifer Xiloj, a 10-year-old born in Chattanooga, Tenn., who now lives in poverty-stricken Guatemala after her undocumented mother fled the U.S.

Trevizo’s reporting shows that U.S.-born children who move to Guatemala face the same success rates as other children in the third-world country, where “only 20 percent have access to high school and less than 1 percent will go on to college.”

There are 4 million children born to at least one undocumented parent in America, up from 2.7 million in 2003, according to a 2009 report (PDF) by the Pew Hispanic Center. Of these immigrants’ children, a significant majority—nearly 75 percent in 2008—were born as full U.S. citizens.

Yet, “what typically happens is that if the parents are undocumented, they are deported together with their children, even though the latter are U.S. citizens,” says Don Kerwin, a vice president of the nonpartisan Migration Policy Institute.

It’s hard to determine how many young American citizens are leaving the country as a result of parental deportations. A 2007 investigation by the Department of Homeland Security found more than 100,000 deportations involved parents with children who are legal citizens.

“If [the U.S.-born children] were taken back [with deported parents], I would argue the direct result of our actions is the deportation of our citizens,” Rep. José Serrano (D-N.Y.) said in response to the findings. “How do you deport a U.S. citizen?”

A federal DREAM Act would extend temporary citizenship to undocumented young people who enroll at an American college or serve in the U.S. military. But when it comes to children already born as U.S. citizens, undocumented parents often have few options. Earlier this year, U.S. immigration officials deported a U.S.-born 4-year-old who was traveling back to the U.S. with her Guatemalan grandfather after a long visit. Her undocumented parents say they were given two options: Move her to Guatemala or place her in a detention center for minors. She was later returned to her parents in America and the parents and officials dispute details of the girl’s attempted re-entry into the U.S.

Tennessee teacher Marisol Jimenez told the Times Free Press the impact this threat has on promising young Americans is detrimental:

“It’s hard because you know what their potential is [in America],” Jimenez said. “For reasons we can’t control, kids who would make wonderful additions in Chattanooga are having to leave. You know they could be somebody but may never get a chance to reach their full potential.”

Take 10-year-old Jennifer, who like other children has her own dream of returning to the United States:

“I would like to be a doctor because we are going to cure little kids, but only if you go to the United States because you can’t do anything [in Guatemala],” she said. “The only thing you can do is grow corn; there’s no money.”

For many of these U.S.-born children, returning to America is the best option. Because they’re American citizens by birth, they can secure employment and often provide some financial support for other family members. But many left the country when they were young and lost access to sound education, experts say, and some now struggle to remember English and find it difficult to read or write when they return.

Some elected officials seek to remedy this conflict by preventing these young people from becoming citizens in the first place. Rep. Steve King (R-Iowa) and others have argued that birthright citizen is a leading motivation for foreigners to “sneak” into the United States in order to have “anchor babies” who will help them gain citizenship. (The rhetoric of such advocates reeks of fear-mongering terms like “anchor babies” and “illegal aliens.” King went as far as suggesting an electric fence between the U.S. and Mexico, adding “We do that with livestock all the time.”)

But the statistics indicate otherwise. A 2010 analysis by the Migration Policy Institute projected that ending birthright citizenship rights would increase the number of unauthorized immigrants and double the number of undocumented children by 2050. Yoshikawa’s study and other data also debunk the “anchor baby” motive—a majority of undocumented adults in the U.S. have their first child after living in America for at least five years, according to a Pew Research Center report. And even then, it will take decades for a child of undocumented immigrants to be able sponsor their parents for citizenship.

Meanwhile, abolishing birthright citizenship would have serious consequences for the U.S., creating a permanent underclass and adding hardships for both immigrant and non-immigrant parents, CAP’s Fitz argues. Specifically, such a move could force expectant mothers to make decisions based solely on their citizenship status and require costly and intense verification of all births in U.S. hospitals.

“This provision in our Constitution was cementing, once and for all, what had been historically understood to be the legal reality, which is that if you’re born in this country, it doesn’t matter what your parentage is,” Fitz says. “We fought a Civil War to ensure that everyone, from child of slave to the child of a president, is born with the same right and privileges and obligations.”

Despite a few radical politicians’ overtly racist motives and rhetoric, it’s unlikely that any legislation revoking birthright citizenship of kids born to undocumented immigrants would succeed. And, it seems certain such efforts would prove unconstitutional.

In several cases, the U.S. Supreme Court has held that such children born on American soil are entitled to citizenship. Perhaps the earliest challenge to birthright citizenship comes in the Court’s 1898 decision in U.S. v. Wong Kim Ark. The defendant, born in San Francisco to undocumented Chinese immigrants, was detained and denied re-entry to the U.S. after a visit to China. The Court affirmed a lower court’s ruling that because Ark was born in America, he was a full citizen; Justice Horace Gray wrote in the majority opinion that the 14th Amendment upholds “the ancient and fundamental rule of citizenship by birth within the territory … including all children here born of resident aliens.” (Gray also noted that interpreting the 14th Amendment to exclude undocumented immigrants’ children would “deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”)

And in 1985, the Supreme Court noted in its decision for INS v. Rios-Pineda that two undocumented immigrants “asserted substantially” that their being deported would be “an unlawful de facto deportation of their citizen child” and deprive their U.S.-born children of a U.S. education and other benefits of citizenship, resulting in extreme hardship.

Wydra, the attorney from the Constitutional Accountability Center, argues that the 14th Amendment is intended to prevent the promise of citizens’ unalienable rights from being put to a vote and “left to the whims of the majority” or to be decided by individual states.

“We certainly wouldn’t have wanted former slave-owning states after the Civil War to declare that then-free black Americans could not be citizens,” Wydra said, referencing the 14th Amendment’s rectifying of the Supreme Court’s decision in Dred Scott v. Sandford, which withheld citizenship from children born to slaves on U.S. soil.

America’s come a long way since Dred Scott. Let’s not revert to our old, xenophobic ways. And we can start by not exporting talented, eager American youth simply because of who their parents are.