Imagine you are born in the United States, go to American schools, even serve in the army and raise a family. You are a proud Hispanic American with allegiance to the country of your birth. Then, you apply for a passport to be able to board a plane to see your children or grandchildren in another state. Your application is denied. The reason? You were born in the United States near the Mexican border, and you were delivered by a Mexican midwife or Hispanic doctor flagged by immigration authorities as suspected fraudsters – forging birth certificates of babies born just on the Mexican side of the border to make them American born. Did some midwives back in the 70’s and 80’s do that? Yes. But even the staunchest defenders of this “denaturalizing” process concede that it was only a “few” cases of this kind of misrepresentation. This zero-tolerance for Hispanics born in border towns having their citizenship stripped away from them is arguably a solution in search of a real problem.

The consequences for being denied a passport in this manner is not just being denied the opportunity to board a plane – domestically or internationally. According to reporting in The Washington Post by Kevin Sieff, some rejected applicants, primarily Hispanics, have been sent to immigration detention facilities and placed in deportation proceedings. Imagine how terrifying possible deportation can be for a proud Hispanic American who has always considered himself to be just as American as an Italian American, Irish American or German American.

Proponents of having citizenship stripped away in this manner insist that this has been standard practice even during the Obama presidency. This is only partially correct. The practice was actually started under the George W. Bush administration and was stopped a few months into the Obama administration.

According to Slate Magazine, “In June 2009, the Obama administration entered into a settlement agreement with the ACLU. Under the terms of the agreement, the State Department was required to train staff to ensure that certain applications were not subject to suspicion for illicit reasons. The settlement also created a panel that reviewed passport denials to ensure that they were lawful, and directed the agency to cite specific reasons for each denial. Even after the completion of that process, an applicant had the right to challenge the denial and demand reconsideration. Moreover, individuals who were wrongly denied passports during the Bush administration were permitted to reapply without cost.”

Unlike the argument on birthright citizenship, the Supreme Court has been quite specific on the issue of denaturalization. In Afroyim v. Rusk, the court held that a U.S. citizen cannot inadvertently lose citizenship. Afroyim held, “The 14th Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth.” The Bush era policy is now the policy of the Trump administration. It’s dejavu all over again, and it will take another trip to the Supreme Court to settle this – but not necessarily once and for all.

Here are other changes to immigration policies that are being debated as Congress and the White House continue to struggle to come up with a comprehensive immigration plan to deal with this multifaceted issue.

1. Green Cards – A Trump administration proposed rule that would apply a significantly expanded test to determine if green card applicants would be likely to use specified public benefits in the future could potentially have put most recent legal permanent residents at risk of green card denial, a new Migration Policy Institute (MPI) analysis finds. Under current law, immigration officers already apply a totality of circumstances test to determine if the applicant is likely to use certain public benefits in the future; prospective immigrants rarely fail the test currently. The Trump administration would make this test more stringent by expanding the list of benefits that could result in denial. Most recent green-card recipients – 69 percent – had at least one negative factor under the administration’s proposed test, which include employment or school status, ability to speak English, the lack of a high school diploma and being under 18 or over 61.

2.  Chain Migration AKA Family Reunification – Semantics is important. Morphing the term Family Reunification into the term Chain Migration makes an orderly system of migration sound sinister. Interviewed by National Public Radio, Tom Gjelten explained the origin and offered a rationale for why it has fallen out of favor.  He explained, “Until 1965, we chose immigrants on the basis of national origin, giving – actually giving preference to people coming from Northern and Western Europe. The idea was that white Europeans made the best Americans. Then along came the 1960s. We decided this is a discriminatory policy; we need to change it. But there was concern, mostly from conservatives, that if you moved to, let’s say, a merit-based immigration system, there’s no control over who’s going to come into the country. And so they came up with this compromise, that – let’s do away with national origins, but let’s give preference to people who have relatives here already. That would be a way to make sure that we just sort of had the same people coming as were already here. What no one realized is that the demand to move to the United States had changed, and it was no longer coming from Europe. It was coming from Asia, Africa, the Middle East. And as long as you had one person coming here on a student visa or an employment visa, they could bring their family members with them, and it opened the door to a huge surge of immigration from those regions.” And that’s when Family Reunification morphed into the scary and threatening Chain Migration. Still, other than abolish it and keep everyone out, no one has presented a viable alternative.

3.  The 2020 Census – The administration wants to add a citizenship question to the 2020 Census – a question that has not been part of the questionnaire since 1950. This set off alarm bells among those who saw the inclusion of the question having a chilling effect on the reporting of immigrants documented, as well as undocumented, and therefore undercount the U.S. population. A court case ensued, which caused further consternation. As reported in Mother Jones Magazine, “Commerce Secretary Wilbur Ross, who oversees the Census Bureau, said in March that he approved the citizenship question because the Justice Department needed it for “more effective enforcement” of the Voting Rights Act. He subsequently testified before Congress that the Justice Department had “initiated” the request. While answers to the census are strictly confidential, a recently released memo from former Justice Department attorney Ben Aguiñaga suggested that the Trump administration could amend those regulations to share citizenship information with other government entities, such as the Department of Homeland Security, which oversees deportations. That would have a major chilling effect on participation among noncitizens. Aguiñaga is now a clerk for Supreme Court Justice Samuel Alito. The Supreme Court will hold oral arguments in February to decide whether Ross must sit for a deposition under oath and what kind of evidence can be considered in the case.”

4.  Asylum – Here’s a brief history of asylum laws courtesy of the PBS News Hour: “In 1948, the United Nations passed a declaration of human rights that recognized asylum as a method for immigrants to escape persecution in their home country. Three years later the U.S. participated in the UN’s Refugee Convention of 1951, which established the legal framework for protecting refugees. Asylum seekers gained formal protections under U.S. law with the Refugee Act of 1980, which created a system for admitting refugees into the country. Under federal law, anyone from another country can seek asylum – and therefore entry into the U.S. – by claiming to have fled their countries out of fear of persecution over their race, religion, nationality, political opinion or membership in a particular social group. Immigrants are eligible to apply for asylum for up to one year after their entry into the U.S., and can apply whether they entered the country legally or illegally. In the past, the process – from filing the application to receiving a final answer approving or rejecting the request – typically took roughly 60 days. But in recent years, what used to be a 60-day waiting period became anywhere from a two- to five-year waiting period. The process changed again in January, when the Trump administration announced that it would prioritize processing recently-filed asylum applications over applications that have been pending for years. The new policy is often called “last in, first out.”

With the “caravan” of asylum seekers fleeing violence and oppression in Central America having been stopped at the U.S. border and waiting in Mexico for their chance to plead their case, the argument rages whether or not the U.S. can refuse to take in these refugees. A better discussion would be how we can incentivize Central American governments to improve the conditions in those countries to reduce the imperative to flee. •

DACA Vs. Birthright  Citizenship

A Modern-Day Sophie’s Choice

In the movie “Sophie’s Choice,” a mother is confronted with an impossible decision. The Nazi officer demands that she choose between her two children. One will be whisked away and killed, one will be allowed to leave with her. The choice she is forced to make haunts her for the rest of her life.

When President Trump announced his plan to change the 14th Amendment with the stroke of a pen, the court challenges that would ensue were predictable. As part of his argument for why an executive order was the only tool he needed to end birthright citizenship, President Trump cited President Obama’s executive order on DACA (Deferred Action for Childhood Arrivals) to protect DREAMers (those brought by undocumented parents to America as children) from being deported. If Obama could “do DACA,” Trump said, “we can do this by executive order.”

By linking these two executive orders, if the administration loses its bid in court, it could put DACA protection or any other such executive order by future presidents in jeopardy. On the other hand, if the administration prevails, DACA lives to fight another day, but birthright citizenship as we have come to know it, is over. In the short and long term, it’s a no-win situation for all sides.

Sources for main story and sidebars: Marco Ugarte/AP, Asian Americans Advancing Justice, Migration Policy Institute, Pamela Falk - CBS News, Kevin Sieff - The Washington Post, National Public Radio, Tom Gjelten, Jonathan Swan  - AXIOS, U.S. News & World Report, Dora Lind - VOX, Slate Magazine, Mother Jones Magazine, M. Moskowitz - New York Immigration Coalition.