Using Bonds to Reinforce the New Birth Tourism Restrictions

By Dan Cadman on January 27, 2020

The Center for Immigration Studies (CIS) has just published an article, "Birth Tourism: Facts and Recommendations", commenting on the new State Department rules designed to curb abuse of visas by individuals who attempt to hide their pregnancy from consular officers so that they may enter the United States for the purpose of giving birth to a child. Under present (although contestable) interpretations, the child is accorded citizenship solely by the accident of geography — despite no ties or allegiance to this country on the part of the parent(s).

This most recent article is but one of several that CIS has published on the problems and dangers inherent in such an interpretation of "birthright citizenship" that does not seem to be required either by the Constitution or by court precedents (see e.g., here, here, here, and here).

As the editors at National Review have noted, the new restrictions are not cure-alls since there are many work-arounds, particularly for aliens who have previously been granted multiple-entry visas valid for a number of years.

One way that some of the limitations and impediments may be strengthened that, at least to my knowledge, has not been suggested to date is through expanded and robust use of "maintenance of status and departure bonds", which are provided for under Section 214(a)(1) of the Immigration and Nationality Act.

In the specific case of aliens who may be suspected of trying to gain entry to the United States to give birth to a child, prior to issuing a visa consular officers could work with the Department of Homeland Security's U.S. Citizenship and Immigration Services or Customs and Border Protection, to:

  1. Require the alien to sign an affidavit affirming that she is not pregnant and not entering the United States for the purpose of giving birth, and additionally waiving her rights to appeal an order of removal should she violate her conditions of admission by providing a false affidavit (because she is in fact pregnant and gives birth to a child in the United States); and then
  2. Demand the posting of a substantial maintenance of status and departure (MS&D) bond — say, in the range of $10,000 — which would be forfeit if the alien's affidavit proves false.

Such an affidavit falsely attested to would also form the basis of a criminal prosecution for visa fraud under 18 U.S.C. Section 1546.

While single-case visa fraud prosecutions are rare, it would not take many such prosecutions for aliens, particularly from countries whose nationals are prone to birth tourism fraud, to recalculate the cost-benefit analysis of undertaking this course of action. The requirement of posting MS&D bonds is something worth thinking about as the federal government contemplates all of the coordinated actions needed to effectively curb this blatant abuse of our citizenship policies.

Of course, as the CIS facts and recommendations article notes, the best course of all is to initiate a test case through the courts to force a clarification of the limits of birthright citizenship to begin with.