LAW CORNER WITH JC 17 พฤศจิกายน 2561


This week’s topic of “Birthright Citizenship” has been a hot topic in the news for the past couple of weeks. The reason why is because just recently, prior to the midterms, President Trump insisted that he will look to end birthright citizenship for babies born to illegal aliens. As a lawyer who has studied Constitutional Law, I doubt he will be successful in his attempt. We shall see if I am right or not. For those of you who are unfamiliar with “birthright citizenship, then read on. This week I will be covering the U.S. Constitution and its position on birthright citizenship and the often misunderstood idea of “anchor” babies. Although not as common an issue among Thai people as compared to other Asian countries like China, and Korea, I have been asked about this by more than a few people. And it seems like lately, more and more Thai people have been trying this. For those readers who have never heard of “anchor” babies, I hope this article educates you on the issue. And for those who have some knowledge, I hope this article clears up any misconceptions.

What is an "Anchor Baby"?

An "anchor baby" is a somewhat derogatory term, but nevertheless, commonly used to refer to babies that are born to illegal alien mothers within U.S. borders; the idea being that these babies, having been born within the U.S., acts as an "anchor" that pulls the illegal alien mother and eventually a host of other relatives into permanent U.S. residency. The expectant mother of these “anchor” babies believe that by virtue of having a child born here in the U.S., the illegal mother and/or father will become legal and safe from deportation. Although this may be the end result in some cases, this is not the law! The fact that the parent is illegally present in the U.S., either by unlawful entering without inspection, or by overstaying their visa, etc., will not be changed simply because their child is a U.S. Citizen.

The 14th Amendment of the U.S. Constitution

Pursuant to the Citizenship Clause of the U.S. Constitution’s 14th Amendment, which reads in part:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."

In other words, you are a United States Citizen if: (1) you are born in the United States, or (2) you were born in a foreign country, immigrate to the United States and partake in a process of U.S. immigration called "naturalization”. (Note: There are other ways to obtain U.S. citizenship – such as birth outside the U.S. to U.S. citizen parents, etc).

How does an "anchor baby" effect his or her illegal alien parent?

Illegal parent(s) who have children here in the United States are still "illegal". It is a misconception that having a child here in the United States automatically confers immigration benefits for the parent(s). This is simply not true. However, having a baby born in the United States may possibly help his or her parents in some ways. This includes:

• U.S. child applies for his/her parent(s): Under current U.S. Immigration law, a U.S. citizen that is eligible, may petition for immigrant status for a non-U.S. citizen parent. Therefore, if a child is born here in the U.S., that child may apply for their parent(s). However, as it currently stands, a person born here in the United States must wait until they are 21 years old to file the alien relative petition for their mother and/or father. This is a long time to wait.

• Anti-family Separation: Government officials are less likely to deport the illegal alien parent(s) of a U.S. citizen child, when compared to deporting an alien who is otherwise illegal but without a U.S. citizen child. Although it is the law and Immigration officials can deport these illegal alien parent(s), it is my opinion that Immigration officials don’t really want to separate a parent and their child. This is especially true the younger the U.S. born child is. I would think that between a mother who is here illegally, and a career criminal here illegally, the focus of the government would be to deport the latter.

• Immigration Proceedings: The presence of a U.S.-born child of an illegal alien, or a green card holder in trouble with the law, may benefit the parents in immigration proceedings in certain circumstances. Under such limited cases, the judge may possibly grant legal status to an alien who would not get it otherwise. However, the illegal alien parent would have to demonstrate that they:

1) Currently are in formal immigration proceedings for deportation/removal,

2) Have continuously resided and been physically present in the U.S. for 10 or more years,

3) Have a clean record (i.e., not been convicted of certain criminal offenses, and is of good moral character), and

4) Such removal would result in exceptional and extremely unusual hardship to the U.S. citizen child.

Although these are possible ways a child may help their illegal alien parent(s), it is not something someone should rely on if they are considering ways to legally immigrate to the United States. If you are outside of the U.S., your attempt to obtain another visa will most likely be denied once Immigration officials learn that you were here in the past (on, let's say, a B-2 Visitor's Visa) and gave birth here in the U.S. I recently received a call for help from someone in Thailand with this exact scenario. Although I am weighing options available to help her, it is definitely an uphill battle and I would not advise anyone do this. And for those that are currently present in the U.S., the U.S. government may bring forth immigration proceedings against the illegal alien parents. Contact my office if you find yourself in this position.

I hope this week’s article has either educated you or shed light on the often misunderstood policy on birthright citizenship and “anchor” babies.

As always, if you have questions, or need assistance, please contact my office at (818) 846-5639, or my Thai direct line at (818) 505-4921. If you have any questions that you would like to be answered in future articles, or would like to share your opinions or comments, please email me at: JC4LAW@HOTMAIL.COM. Also be sure to check us out on the web at: WWW.JC4LAW.COM, and now on FACEBOOK at: Be sure to follow (and "like") me for the most recent updates in the law!

Disclaimer: The information contained herein have been prepared for informational purposes only and are not to be considered legal advice unless otherwise specified. All opinions expressed are those of the author and in no way shall be associated with LA THAI NEWSPAPER. If you have a specific question regarding your personal case, please contact the Law Offices of Joseph Chitmongran for a full consultation.