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Trump administration against birth tourism

In some countries, especially in the Americas, citizenship can be acquired automatically at birth if the person is born on the territory of the state. Citizenship law refers to them as ius soli countries and some are a popular destination for birth tourism. FCI previously described this concept as the decision by pregnant women to travel to another country with the aim to give birth in that country in order to secure citizenship for their child. We also emphasized that entering a ius soli country as a pregnant woman and give birth there is legal. Despite the obvious advantages of securing another citizenship, there may also be downsides. The United States, which has traditionally been a popular destination for birth tourism, is one of the few countries that taxes its citizens even though they do not live or work in the US. We previously discussed some of the difficulties faced by these “accidental Americans” and the hefty fee that needs to be paid in order to renounce US citizenship.

Birthright citizenship is based on the 14thAmendment to the US Constitution of 1868. The principle has occasionally been challenged by scholars (for example by Peter Schuck and Rogers Smith in their 1986 book Citizenship Without Consent) and bills have been unsuccessfully proposed in the US Congress since the early 1990s to amend the rules concerning birthright citizenship. Commentaries begun to appear after the election of President Trump to issue an executive order: “Congress could clarify legislatively that the children of noncitizens are not […] citizens under the 14th Amendment. But given the open-borders enthusiasm of congressional leaders of both parties, that’s unlikely. It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens”.

While Trump has so far not issued an executive order, his administration has imposed new visa rules aimed at restricting birth tourism. Under a new regulation which took effect on Friday 24 January, Associated Press points out that “pregnant applicants will be denied a tourist visa unless they can prove they must come to the US to give birth for medical reasons and they have the money to pay for it or have another compelling reason”. Importantly, the new rule will not apply to travelers from countries – mostly European and Asian – that are enrolled in the Visa Waiver Program. The applicants affected are thus from countries where B1/B2 visas (temporary visas for business and tourism) are required to enter the US.

Commentators hold different views regarding the practical effect of the new regulation. Some have pointed to its overly-broad language so that “it conceivably could bar any woman in her child-bearing years just because she could possibly become pregnant and have a baby while visiting the US within the ten years that a visitor visa is typically valid”. Medical specialists have voiced concern that “an officer with no medical background now has the power to decide if someone is pregnant and if they deserve medical treatment in the US”.

On the other side of the spectrum, citizenship experts have expressed doubts that much will change, as consular officers already enjoy wide discretion in granting and denying visas. They do not have to explain their denials and applicants have no right to appeal. Analysts have gone so far as to interpret this move as a defeat for Trump because the new regulation does not come close to his goal of abolishing automatic birthright citizenship altogether. In explaining the background and application of the new regulation, the administration indeed basically concedes that birthright citizenship is mandated by both the Constitution and by statute. Peter Spiro thus correctly notes that this can be used against Trump in case he would choose to scale back birthright citizenship via executive order.

Edited by: Dr. Olivier Vonk

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