Foreign influence? How Trump Can Shut Down the Birth Tourism Scam

Written by Daniel Horowitz

Over the next few weeks the news cycle will be paralyzed by an impeachment trial that is essentially about foreign interference in our politics. However, the Trump administration has an opportunity to act on one of the most sinister foreign influences in our country, namely, birth tourism, being used by — you guessed it — Russia and China. If foreign influence is of such great concern to Democrats, shouldn’t we all agree to stop the practice of awarding those who lie to get into the country or who infiltrate our border with the ultimate prize of American citizenship?

Over the weekend, Axios reported that the Trump administration might move ahead with a plan to finally end the birth tourism loophole in our citizenship policies. Conservatives would be wise to push the president to enact the most sweeping reforms possible and dare Democrats to oppose his effort to combat the ultimate foreign influence in our elections.

The Center for Immigration Studies estimates that there are roughly 33,000 babies born to tourists every year. No, these are not people who misjudged their due dates and decided to travel here late in their third trimester of pregnancy. These are, for the most part, wealthy foreign nationals, most predominantly from Russia and China, who seek to exploit our senseless policy (not law) of granting citizenship to any child born here, even under such temporary circumstances. That child can then vote in our elections 18 years later and bring in the rest of the family on a permanent basis. Thus, those who tell us they are coming for the purpose of tourism can subvert our sovereignty and unilaterally assert jurisdiction for their children against our will.

If the Trump administration allows this scam to continue. Even if one believes the Wong Kim Ark U.S. Supreme Court decision creating a constitutional right to birthright citizenship is correct, the author of that decision clearly stated that it only applies to those consensually admitted into this country for permanent domicile. After declaring a revolutionary right to birthright citizenship for legal immigrants in a bizarre reversal from his own previous opinion, Justice Horace Gray qualified the mandate to grant citizenship to children of those immigrants living here only “so long as they are permitted by the United States to reside here.”

Gray used the term of art “domiciled” 12 times throughout the opinion when defining those covered, in his view, by the Citizenship Clause. As I’ve written previously, Gray’s past writing show that “domicile” means what we would consider today a green card holder, aka a legal permanent resident.

This would mean that even according to the highly dubious Wong opinion, children born here to birth tourists, those on student or other temporary visas, and certainly those who come here illegally or have a child after they overstay any form of visa are not entitled to citizenship. Yet there are an estimated 33,000 babies born to tourists, 38,000 born to foreign students and other holders of non-immigrant visas, and 300,000 children born to illegal aliens every year. That is greater than the number of babies born in any single state other than Texas and California.

The principle the Trump administration wants to apply to children of tourists really should just as equally apply to the other categories as well. However, I’d take a partial victory, so long as the administration fully implements the law against tourists.

According to the Axios report, the State Department is working on guidance for consular officials to deny visas to those they suspect of coming here for the purpose of having American-born babies rather than, say, touring the sights of New York City.

In order to make this an effective policy, the administration should consider the following:

  • Direct the Social Security Administration and Health and Human Services to work with hospitals to develop guidance on handing out birth certificates. At present, it is a free-for-all whereby essentially anyone born here is handed citizenship documents. This is a mistake even according to those who support birthright citizenship, because children of foreign diplomats are excluded from citizenship, yet there is no evidence that they are being excluded in practice.
  • The Trump administration is making ability to pay for a health care a condition for issuance of immigrant visas. It should do the same for birthright citizenship for those who enter on non-immigrant visas: Make a condition that anyone who enters the country on a non-immigrant visa must forfeit any “right” to citizenship for a child born here. This should apply to visa waiver countries as well to those who enter without a visa, just as a condition of admission. This is also needed for those who fly to American Samoa and other U.S. territories for birth tourism, because they don’t need a visa to enter.
  • The administration should make sure to apply this to those who enter at land-based points of entry on border crossing cards from Mexico.
  • The administration also needs to enforce this on the back end by not handing out passports like candy without any examination of the parents. “The passport application process is another opportunity to learn more about what is happening and by whom,” said Jessica Vaughan of the Center for Immigration Studies in an interview with Conservative Review. “We can examine the applications on behalf of children with two non-resident parents, identify egregious visa abusers, and learn where visa and border officials need to do more.”

Here’s the most important fact in this debate as the Left gears up for endless lawsuits. Not only can the administration deny a visa to anyone for any reason, it can also deny entry even to those who already have valid non-immigrant visas. 8 U.S. Code §1201(h)(i) makes it clear that the issuance of a visa does not “entitle any alien” to be “admitted [into] the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this chapter, or any other provision of law.”

Therefore, if the president, using his delegated and inherent authorities, chooses to suspend or regulate particular visas, those individuals are inadmissible under law. Furthermore, the statute continues by giving plenary power to customs officials to revoke visas at any time.

What’s more, this provision of law, which passed the Senate 96-2 in 2004, explicitly stripped the courts of any jurisdiction to adjudicate the revocation of visas for anyone seeking entry into the country. Now, it’s up to the administration to follow through with this plan and actually enforce the congressional bar against judicial meddling.

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