Birthright Citizenship as a Magnet

Mother gives birth after entering illegally, and the family is then released

By Andrew R. Arthur on December 6, 2018

In November, I wrote a Backgrounder on birthright citizenship in response to President Trump's then-recent statement that he was considering issuing an executive order to end the practice. A birth to one of the migrants associated with the immigrant caravan currently in Tijuana underscores the magnet effect that this interpretation of the 14th Amendment has on aliens who are considering entering the United States illegally.

As the Associated Press reported on December 6:

A Honduran woman affiliated with a caravan of Central American migrants gave birth on U.S. soil shortly after entering the country illegally amid growing frustration about a bottleneck to claim asylum at official border crossings.

Border Patrol agents arrested the woman Nov. 26 after she entered the country illegally near Imperial Beach, California, across the border from Tijuana, Mexico, Customs and Border Protection said Wednesday. She was arrested with her 20-year-old husband and 2-year-old son.

The woman, who was eight months pregnant, was taken to a hospital after complaining about abdominal [pain] the day after her arrest, Customs and Border Protection said.

Thousands of migrants in the Central American caravan are waiting processing in Tijuana, Mexico, notwithstanding the fact that they do not appear to be happy about having to wait, as alluded to in a December 3 New York Times article.

That New York Times piece details the efforts, many of which were described as unsuccessful, of other migrants to enter the United States illegally, however. It continues:

Some have jumped into the cold, rough ocean waters and tried to swim around the fence to the United States, only to be plucked from the surf by the authorities.

This stretch of the  border is one of the most heavily guarded and scrutinized. But for some, that is part of the calculation: Having grown impatient as they wait for their asylum appointments, they hope to speed things up by getting caught and petitioning for asylum on the spot, a provision in the law that Mr. Trump is trying to end.

Plainly, it is in the interest of the U.S. government, our immigration system, and the migrants themselves to discourage such efforts at illegal entry. The eight-month-pregnant woman in the Associated Press article, identified as 19-year-old Maryury Serrano Hernandez, for example, obviously should have been discouraged from undertaking the strenuous effort to enter the United States without authorization at a heavily patrolled portion of the border. That she gave birth before reaching full term suggests the arduous nature of such action.

So why did she do it? That article gives the answer, quoting Hernandez as stating that "giving birth in the U.S. was a 'big reward' for the family's grueling journey." Unfortunately, she was correct. As the outlet noted: "The family was released from custody on Sunday, pending the outcomes of their immigration cases." They are planning on applying for asylum, and have family in Columbus, Ohio.

And they will likely be here for a long time. In a separate, August 2018 article, the Associated Press noted: "ICE's average length of stay in immigration detention is about 40 days, while the average length of time for immigrants not in custody to have immigrant cases on court dockets is more than eight years." Now that Ms. Hernandez and her family have an equity in the United States (their newborn child), their stay is likely to be longer.

Nor is Hernandez alone. Specifically, the December 6 Associated Press article stated: "Scores of pregnant women traveled with the caravan through Mexico before reaching the U.S. border."

It is unclear at what stage of pregnancy those migrants are. The Centers for Disease Control, however, has an entire website page dedicated to "Pregnant Travelers", and the precautions they should take both prior to and while traveling. Implicit in that web page is the proposition that those women will travel by air, at least to their destination country. It does not even discuss the proposition that a pregnant traveler would walk (or walk and take a land vehicle) more than 1,000 miles through sections of a foreign country that range from urban to underdeveloped.

The hazards of that journey are made clear from that Associated Press article, which reports:

In Pijijiapan in the southern state of Chiapas, Dr. Jesus Miravete, who volunteered his services in the town's plaza, said he treated a few dozen pregnant women, including 16 for dehydration after being on the road for weeks.

Pijijiapan is hundreds of miles away from Tijuana. One can only imagine how much worse the journey was for those travelers from there.

As I noted in the Backgrounder on birthright citizenship, there are legal arguments against the proposition that all children born on U.S. soil, and in a particular children born to aliens illegally present, are automatically granted U.S. citizenship. To turn off this particular magnet, the Trump administration and its Justice Department may want to explore those arguments.