‘Anchor Babies’ and the Law: An Explainer From a Former Consular Officer

Posted: 1:55 am EDT
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NPR News writes that both Florida Sen. Marco Rubio and former Florida Gov. Jeb Bush have defended birthright citizenship, but they have said more needs to be done about women who might come into the U.S. expressly to have children. “If there’s abuse, if people are bringing, pregnant women are coming in to have babies simply because they can do it, then there ought to be greater enforcement,” Bush told conservative radio host Bill Bennett this week, as reported by Politico. Like how, or greater enforcement of what?

Birthright citizenship and “anchor baby”  are in the front burner of political campaigns these days.  The Congressional Research Service (CRS) issued this report on Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents (via Secrecy News) back in 2012.  The report is dated January 10, 2012 but is an interesting read on the various legislative proposals and its history. There is a useful discussion of the Fourteenth Amendment and the Civil Rights Act of 1866 included in the report. In related news, denial of birth certificates to U.S. born children of undocumented immigrants in Texas is now a lawsuit in the U.S. District Court in Austin, TX.

Peter Van Buren, a consular officer by trade until his retirement from the Foreign Service has written a straight-forward explainer on this subject. Excerpted below:

Explainer: ‘Anchor Babies’ and the Law
by Peter Van Buren (We Meant Well Blog)

Thanks to brave presidential candidates Trump and Bush, et al, the term “anchor baby” is now the subject of interest and ignorance by a media preoccupied with whatever shiny object is held in front of it.

Trump wants to tear up part of the Constitution he unilaterally proclaims is unconstitutional; no one is sure what the other Republicans plan to “do” about this issue, but they sure don’t support it somehow.

Anchor Babies

So what are “anchor babies” and which parts of American law affect them?

An “anchor baby” (many find the term offensive, referring as it does to a child as an object) is a child born in the United States to a foreign citizen, legally or illegally present in the U.S., who, by virtue of the 14th Amendment to the Constitution, automatically and forever acquires American citizenship. The child need only prove s/he was born in the U.S.

The term anchor comes into play because at the age of 21 the child can begin filing green card paperwork for his/her extended family. The single American citizen in a family becomes the “anchor” through which all can eventually become legal permanent residents of the U.S. and soon after, citizens.

Many conservatives feel conveying citizenship so freely cheapens the meaning of being an “American,” and especially object to the idea that a mother illegally in the United States can birth an American citizen. Others are troubled by a growing industry that sends foreign mothers to the U.S. specifically so that they can create such citizens, so-called “birth tourism.”

The Law

The concept that anyone born in the U.S. (one exception: those born not subject to U.S. law, which has been held to apply primarily to Native Americans and to children of certain accredited foreign diplomats exempt [immune] from U.S. laws, though there are loopholes even there) is automatically an American citizen is part of the 14th Amendment to the Constitution, the so-called Citizenship Clause.

The 14th was adopted in 1868, in the aftermath of the Civil War as part of reconciling the status of millions of slaves forcibly brought to the United States. The Citizenship Clause specifically overruled the 1857 Supreme Court decision in Dred Scott v. Sandford), which had held that Americans descended from African slaves could not be citizens of the United States. The Amendment cleared up any ambiguities, stating “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The most significant test of the 14th Amendment came in 1898, via United States v. Wong Kim Ark. The Supreme Court upheld that a child born in the United States automatically became a U.S. citizen. At issue were laws passed after the Wong child’s birth that excluded Chinese citizens from entering the U.S. The decision in Wong has been understood to mean that the legal status of the mother, as well as any secondary immigration laws below the Constitution, have no bearing on the granting of citizenship.

It can get complicated, and there have been unsuccessful efforts to overturn or reinterpret Wong in light of contemporary concerns over immigration.

For those who like their law in Latin, the idea that anyone born in a certain country automatically acquires citizenship there is called jus soli (right of soil.) The opposite, that citizenship is derived only via one’s parents, is called jus sanguinis (right of blood.) No European nation offers unrestricted jus soli, and very few other countries outside the Western Hemisphere do either.

Foreigners, Visas and Babies

While some foreigners who give birth in the U.S. enter illegally by walking across a land border, a significant number of moms enter the U.S. on visas or the rough equivalent, the visa waiver program, which provides less fettered access to citizens from certain countries, mostly Europeans. Some give birth in the U.S.; is this legal?

It is. There is no law whatsoever that prohibits someone from coming to the United States specifically to give birth here and create an “anchor baby.”

Many uninformed commentators point to two visa laws that they feel may prohibit such an act, the “public charge” provision and the fraud provision.
[…]
Birth Tourism

The current issue of Rolling Stone contains a long article on “birth tourism.” Such “tourism” is a huge business in Asia, particularly in China where rising incomes coincide with existing interest in emigration. Companies arrange for everything; a mom need only provide money. The companies legally assist the mother in obtaining a visa, arrange for her to stay in the U.S. in an apartment complex (dubbed “maternity hotels”), usually in California for convenience for flights from Asia, full of other Chinese moms, and then give birth in a local hospital staffed with Chinese-speaking doctors.
[…]
There is absolutely nothing illegal about birth tourism under U.S. law.

Read in full Explainer: ‘Anchor Babies and the Law at the We Meant Well blog.

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We’re Sending This ‘We Meant Well’ Career Diplomat as Ambassador to Qatar

— Domani Spero
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This week, we blogged about the former AFSA presidents asking the Senate to postpone consideration of FSO Dana Shell Smith’s nomination as ambassador to Qatar until the Foreign Service Grievance Board (FSGB) has made a decision in the case related to Ms. Smith and Susan Johnson, another senior FSO and the immediate past president of the organization (see Former AFSA Presidents to SFRC: Delay Approval for FSO Dana Smith as Qatar Ambassador).

On the same day, the Senate Foreign Relations Committee (SFRC) cleared Ms. Smith’s nomination for the Senate’s full vote.  We’ve covered these nominations long enough to understand that the Senate seldom ever listen to the concerns of constituents unless they are aligned to the senators’ self-interest or their pet items.

  • In 2012, Senator Marco Rubio (R-FL) announced his intent to oppose the nominees for WHA, including the nominee for Ecuador, Adam Namm due to what he called this Administration’s policy towards Latin America defined by “appeasement, weakness and the alienation of our allies.”  He was eventually confirmed.
  • On December 15, 2011, 36 conservative foreign policy experts have written to ranking senators to plead for the confirmation of Matthew Bryza as ambassador to Azerbaijan to no avail. WaPo  nominated two senators, Sens. Barbara Boxer (D-Calif.) and Robert Menendez (D-N.J.) who placed a hold on the Bryza nomination with the Most Craven Election-Year Pandering at the Expense of the National Interest Award.  Ambassador Bryza eventually quit the Foreign Service and became the Director of the International Centre for Defence Studies in Tallinn, Estonia.
  • In April this year, fifteen former presidents of the American Foreign Service Association (AFSA)wrote a letter to Senate leaders calling for the rejection of three nominees for ambassadorships: George Tsunis (Norway); Colleen Bell (Hungary) and Noah Mamet (Argentina).  All these nominees have now been endorsed by the SFRC and are awaiting full Senate vote. The only nomination that could potentially be in real trouble is Tsunis. Minnesota Sens. Amy Klobuchar and Al Franken have said they oppose his nomination.  Apparently, every member of the Minnesota U.S. House delegation signed  a letter to President Obama asking him to rescind his nomination of GeorgeTsunis as ambassador to Norway.  Why Minnesota? It is home to the largest Norwegian-American population in the United States.So is this nomination dead?  Nope. If the Democrats in the Senate vote for Tsunis without the Klobuchar and Franken votes, he could still get a simple majority, all that’s required for the confirmation. Correction (h/t Mike D:  Senators Tim Johnson (D-SD) is on the record here opposing the Tsunis nomination.  Senator Heidi Heitkamp (D-ND) said she, too, will not support the Tsunis nomination. So if all the Democrats in the Senate  minus the four senators vote in favor of the Tsunis nomination, that’ll be 49 votes, two vote short of a simple majority.  Let’s see what happens.

So, back to Ms. Smith, the State Department nominee as ambassador to Qatar. We think she will eventually be confirmed.  Her ‘Certificate of Competency” posted online says:

Dana Shell Smith, a career member of the Senior Foreign Service, class of Minister-Counselor, currently serves as Senior Advisor to the Under Secretary for Public Diplomacy and Public Affairs in the Department of State. Known as a linguistic, cultural and policy expert on the Middle East, she understands the region well and can effectively present major U.S. policy issues to diverse audiences. Her leadership, management and public affairs expertise, as well as her interpersonal skills and creativity, will enable her to advance bilateral relations with the Government of Qatar, an important U.S. partner in managing the problems of the Middle East.

Dang! That is impressive but it missed an important accomplishment.

Until her nomination as Ambassador to Qatar, Dana Smith Ms. Smith served as the Principal Deputy Assistant Secretary of State in the Bureau of Public Affairs (2011-2014).  Does that ring a bell?  Oh, how quickly we forget. Ms. Smith was the PA official who told Peter Van Buren’s book publisher, Macmillan, that the Department has “recently concluded that two pages of the book manuscript we have seen contain unauthorized disclosures of classified information” in We Meant Well. (See “Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!).

What did she actually tell MacMillan?  Let’s take a look:

 

Screen Shot 2014-06-25

click here to see entire letter (pdf)

 

This boo! strategy may be creative but also oh, so…. so… amateurish. Who thought Macmillan would buy this scaredy tactic?  Perhaps they should have threatened to buy all the copies and burn them all.  The really funny ha!ha! part about this is despite the charge that the book contained “unauthorized disclosures of classified information” the formal State Department charges filed against Mr. Van Buren did not mention this and he was officially retired with full benefits. (See  After a Year of Serious Roars and Growls, State Dept Officially Retires FSO-Non Grata Peter Van Buren).

We Meant Well is now on second edition on paperback and hardback.  We understand that the book is also used as a text at colleges and at various US military schools but not/not at the Foreign Service Institute.  This past April, Mr. Van Buren also published his new book, Ghosts of Tom Joad: A Story of the #99Percent. As Iraq falls apart, we thought we’d check on Mr. Van Buren. He told us there is no truth to the rumor that he will retitle WMW to “I Told You So.”

This is an old story, of course, that folks would like to forget.  Dirty laundry aired so publicly, ugh!  So most people have moved on, got awards, promotions, moved houses, new jobs, and sometimes, they may even end up as ambassador to places where people express dissent only in whispers and always off the record.

Perfection in the universe.

 

 

 

 

 

 

 

After a Year of Serious Roars and Growls, State Dept Officially Retires FSO-Non Grata Peter Van Buren

And so it has come to this.

Last year, the State Department was up in arms with the publication of Peter Van Buren’s book, We Meant Well, because well — as its Principal Deputy Assistant Secretary of State of the Bureau of Public Affairs  Dana Shell Smith (of the How to Have an Insanely Demanding Job and 2 Happy Children minor fame) told the book publisher, Macmillan, the Department has “recently concluded that two pages of the book manuscript we have seen contain unauthorized disclosures of classified information.”

I counted the words; there are some 30 words that were deemed classified information according to the letter sent to the publisher, including a place called, “Mogadishu.”  See “Classified” Information Contained in We Meant Well – It’s a Slam Dunk, Baby!

Five months after his book was published, the State Department moved to fire, Mr. Van Buren.  He was charged with eight violations including  linking in his blog to documents on WikiLeaks  (one confidential cable from 2009, and one unclas/sensitive/noforn cable also from 2009); failing to clear each blog posting with his bosses; displaying a “lack of candor” during interviews with diplomatic security officers;using “bad judgement’ by criticizing Secretary of State Hillary Clinton and one time presidential candidate Michelle Bachmann on his blog.

The eight charges did not include the allegation of leaking “classified” content from his book. Which is rather funny, in a twisted sort of way, yeah?   So, why …

Oh, dahrlings, let’s take the long cut on this, shall we?

There were lots of roars and growls, of course … employees at State even got to work on additional areas their supervisors deemed appropriate  — such as looking under dumb rocks to see if anything would come out, monitoring Mr. Van Buren’s media appearances and blog posts, etc. etc..  The guy was practically a cottage industry sprouting “taskers” all over Foggy Bottom (except maybe the cafeteria).  Those who got Meritorious Honor Awards for the Van Buren Affair, raise your left hand.  Oh dear, that’s a bunch!  Let us not be shocked, also if Mr. Van Buren was quite useful for the spring’s Employee Evaluation Reports (EER) for multiple folks.  Everybody gets credit for work well done, or otherwise.

And because life is about changes, the Director General of the Foreign Service Nancy Powell (top HR person in the Foreign Service) was promoted to do yet another stint as US Ambassador, this time to India; leaving the “Peter Headache” to her successor as DGHR, former Ambassador to Liberia, Linda Thomas-Greenfield.   The top boss of all management affairs at State, Patrick Kennedy, as far as we know did not have to swap chairs and is still top boss.  Mr. Van Buren himself did not go quietly into the night.  Instead he kept on popping up for interviews on radios and teevees, and here and there and his blog posts, angry or not, did not skip a single beat.

Meanwhile, the book which the NYT called “One diplomat’s darkly humorous and ultimately scathing assault on just about everything the military and State Department have done—or tried to do—since the invasion of Iraq”  went into second printing.

And so a year after We Meant Well was published, and after numerous investigations ending in a whimper, the State Department officially retired Mr. Van Buren on September 30, 2012. No, the agency did not fire him despite all sorts of allegations.  And yes, he gets his full retirement.

Congratulations everyone, all that work for nothing! So totally, totally 🙄 exhausting!

If Mr. Van Buren were a project, you would have had your Gantt chart with the work break down structure. As well, the project manager would have the time allocation, cost and scope for every detail of this project. Unfortunately for the American public, we may never know how much time, money and effort went into the 12 month Project Hounding of Mr. Van Buren.

In the end, the State Department can claim success in getting Mr. Van Buren out the door (and helping him sell those books also).  No one needs to pretend anymore that he is paid to work as a “telecommuter” when in truth they just did not want his shadow in that building. He is now officially a retired Foreign Service Officer. Like all soon to retire officers, he even got into the Foreign Service Institute’s job search program.  But of course, they have yanked away his security clearance, so that’s really helpful in the job search, too.

Do you get the feeling that this isn’t really about this book anymore but about that next book?

Back in July, former FSO Dave Seminara who writes for Gadling and is a contributing writer for The Washington Diplomat did an interview with Mr. Van Buren .  In one part of the interview, Mr. Van Buren said that he gets anonymous hate mail and people telling him to “shut up and do your service like everyone else did; half a million people have gone through Iraq and they didn’t have to bitch about everything like you did.” I read that and I thought, oh, dear me!

Excerpts:

Q: But surely you can understand that if lots of FSOs decided to write critical books like yours while still on active duty it would create chaos?

A: I can understand that argument. But this is part of living in a free society. As Donald Rumsfeld said, “Democracy is messy.” The State Department promotes the rights of people to speak back to their governments. The Arab Spring — we want people in Syria to shout back at their government, but we won’t let our own employees do that.

Q: It seems as though the State Department objects to some FSO blogs, but not to others — is that right?

A: It’s vindictive prosecution. The State Department links to dozens of Foreign Service blogs and those people aren’t getting clearance on everything they post — they can’t. But those blogs are about how the food in Venezuela is great or we love the secretary.

The idea — we’re going to pick on you because we don’t like what you’re writing — that scrapes up against the First Amendment. If the State Department wants to police my blog, they have to police all of them.

Q: And how do you think your peers perceive you now?
A: A lot of State Department people are under the mistaken impression that I didn’t clear the book but they’ve dropped that. People thought I went rogue, which I did not. I am not a popular person right now. Someone in an organization that is designed to help FSOs told me, “Most people in this building hate you.”

Some people worried that they’d have privileges in Baghdad taken away from them. That someone in Congress might wonder why we have a tennis court in Baghdad. I got de-friended by colleagues on Facebook. Most of them didn’t read the book. One embassy book club refused to buy the book. Lots of anonymous hate mail. [People telling me] shut up and do your service like everyone else did; half a million people have gone through Iraq and they didn’t have to bitch about everything like you did. I’ve also been harassed by Diplomatic Security people.

Q: Do you feel like diplomats have a right to publish?
A: We do have a constitution which still has the First Amendment attached to it. The rules say: No classified or personal information can be released, you can’t talk about contracting and procurement stuff that would give anyone an advantage in bidding, and the last thing you can’t do is speak on behalf of the department. That’s it. They don’t have to agree with what I’ve written. I have disclaimers in my book and on the blog explaining that my views are my own and don’t represent those of the U.S. government.

Read in full, U.S. Foreign Service Officer Blacklisted for Scathing Exposé.

The more insidious question really is — how did we end up with so much waste in Iraq and Afghanistan? The answer that folks just did their jobs and did not bitch about anything is certainly part of what ails the effort. Not that other folks have not complained, or even blogged about the reconstruction problems in the warzones, the complaints were just not as loud.  People were aware of serious issues in these reconstruction projects, talked about it, complained about it among themselves, but for one reason or another did not feel right about calling public attention to the fire slowly burning the house down.  What I have a hard time understanding is — why are people so mad at the man who shouted fire and had the balls to write about it?

This should be a great case study for the State Department’s Leadership and Management School. Because what exactly does this teach the next generation of Foreign Service Officers in terms of leadership and management? About misguided institutional loyalty? About the utility of shooting the messenger of bad news, so no news is good news?  And about courage when it’s 2 o’clock in the morning and all your friends have bailed out and locked the door, to keep you out?

See something. Say something. Or not.  But if you do, be prepared to be hounded and ostracized by the institution you once called home, by people you once called friends.

In any case, the one headed dragon that roars gotta be slayed before its other heads wake up and roar louder. Another officer was writing the Afghanistan edition of We Meant Well when the State Department went mud fishing on Mr. Van Buren. Not sure if that book is ever coming out but just one more line item on success in the State Department. The less stories told unofficially, the more successful the effort officially.

Um, pardon me?  Oh, you mean the State Department’s Dissent Channel and AFSA’s Dissent Awards? Those things are utterly amazing good stuff.  On paper.