4 “Illegality” across Generations Public Discourse and the Children of Undocumented Immigrants
It is time we stopped thinking of our nearest neighbors (Canada and Mexico) as foreigners.
By a psychological and cultural mechanism of association [with “alien” and “illegal” undocumented workers] all Latinos are thus declared to have a blemish that brands us with the stigma of being outside the law. We always live with the mark indicating that whether or not we belong in this county is always in question.
Despite Ronald Reagan’s plea for more civil political rhetoric, the tone of public discourse over immigration became more alarmist between 1979 and 1999, when Rosaldo commented on the stigma accorded all Latinos, and this trend has continued up to the present (Chavez Reference Chavez2001, Reference Chavez2013). This chapter examines public discourse about the children of undocumented immigrants, focusing on two key issues in the current debate over immigration policy. First of all, I examine the construction of 1.5-generation undocumented immigrants as undeserving outsiders despite the fact that they were raised in the United States as insiders. Although the Deferred Action for Childhood Arrivals program, initiated by President Obama in 2012, provides temporary relief from deportation for some undocumented 1.5-generation immigrations, the issues of their belonging and a path to citizenship are still unsettled. Second, I examine the new subject position created by the discourse about “anchor babies.” Discourse on these subjects justifies exclusionary public policies and attempts to redefine the meaning of citizenship, especially the repeal of the Fourteenth Amendment to the U.S. Constitution or amending the Fourteenth Amendment to remove birthright citizenship for children born to undocumented immigrants. Either change to the Fourteenth Amendment would create a class of individuals who, though born in the United States, would not be citizens. What status they would have, if any, is not clear. It is argued here that the unintended consequences would be to render this new category of U.S.-born/noncitizens as a possible caste in American society, increase their vulnerability as “inside/outsiders” whose residence may not be subject to protections accorded to citizens, and result in this new class/caste being stigmatized similar to already stigmatized undocumented immigrants.
To arrive at these concluding observations, this chapter places the debate over the children of undocumented immigrants within a broader antiimmigrant, anti-Mexican, and anti-Latino public discourse with its focus on a politics of reproduction. Issues such as demographic change, immigrants’ and their children’s fertility rates, the “browning of American,” and the Latino “take over” of the U.S. Southwest are key features of a discourse about the children of undocumented immigrants. This chapter begins by elaborating this Latino threat discourse.
The focus then shifts to a discussion of 1.5-generation undocumented immigrants, those brought to the United States at a young age by their parents, and the second generation, who are U.S. citizens by birth. The concept of illegality is examined as a condition that affects the subjective understandings of 1.5-generation undocumented immigrants’ sense of belonging and identity. The purpose of this section is to describe the difficulties faced by the undocumented 1.5 generation because of their ambiguous position in U.S. society, a position not too different from the possible ambiguous position of the second generation should changes to the Fourteenth Amendment limiting birthright citizenship ever occur.
The final section examines the public debate over the Fourteenth Amendment and “Anchor Babies.” It is argued here that focusing attention on U.S.-born children of undocumented immigrants is meant to instill in the public imagination that these young people are undeserving citizens with illegitimate claims of belonging to the nation. Rather than an exhaustive legal treatise on the Fourteenth Amendment and birthright citizenship, this section is meant to underscore the contradictions of the debate. The history of a “nation of immigrants” is briefly examined in relation to citizenship, as well as emergence of unseemly metaphors to stigmatize both the reproduction of undocumented women and their U.S.-born children.
Public Discourse, Reproduction, and the Latino Threat
The current debate over what to do with the foreign and U.S.-born children of undocumented immigrants did not suddenly emerge into public consciousness. Rather, it has evolved in relation to a public discourse over the dangers of the reproductive capacity of Mexican and other Latin American women, both foreign and domestic. Over the last fifty years, the discourse on immigration in the United States has turned decidedly more alarmist, especially in relation to Mexican and other Latin American immigrants (Chavez Reference Chavez2001). The often-vociferous debate has expanded to include U.S.-born Latinos, whose reproduction, both biological and social, has been characterized as a threat to the nation (Chavez Reference Chavez2013). It is the belief that Mexican and other Latinas are unable, or unwilling, to control their fertility that supports what I have called elsewhere the Latino Threat Narrative, which posits that Latinos, led by Mexicans and Mexican Americans, are unwilling to integrate socially, unwilling to learn English and U.S. culture, and preparing for a take over the Southwest of the United States.
What follows is a brief overview of the three themes that frame the Latina reproductive threat narrative: high fertility and population growth (biological reproduction), overuse of social services (social reproduction), and a conspiracy to reconquer the Southwestern region of the United States. The link between immigrant women’s fertility and the nation’s population growth was particularly problematic in the 1970s, given the pressure of environmental and population groups, such as Zero Population Growth. As Leonard F. Chapman Jr., former commissioner of the Immigration and Naturalization Service, commented in an interview in U.S. News & World Report (1974: 30): “We’re very close in this country to a zero population growth through births. As we get closer to that zero growth, immigration will become an even larger percentage of the population increase.”
High Fertility and Population Growth
The theme of Mexican women’s “high” fertility surfaced on U.S. News & World Report’s July 4, 1977 cover, which carried the headline: “TIME BOMB IN MEXICO: Why There’ll be No End to the Invasion of ‘Illegals.’” The accompanying article clarified that the “time bomb” was Mexico’s population and its expected growth rate. The article stressed that the fertility of Mexicans and their inability to produce jobs for their population would lead to greater pressure for immigration to the United States in the future. Importantly, U.S. News & World Report drew their reader’s attention to the external threat posed by the reproductive capacity of Mexican women, a threat that was also internal because Mexican immigrant women’s and their U.S.-born children’s high fertility levels were implicated in the rapidly growing U.S. Latino population.
The growth of the U.S. Latino population was often paired with the decline in immigrants from Europe and the declining proportion of whites in the U.S. population. For example, Newsweek’s January 17, 1983 issue reported that between 1970 and 1980, Latinos grew by 61 percent, largely because of immigration and higher fertility rates, and because since the mid-1960s there were 46.4 percent fewer immigrants from Europe. The politics of fertility and reproduction are not limited to immigrant Latinas, but include U.S.-born Latinas, whose alleged high fertility is characterized as partly responsible for demographic changes occurring in the nation’s racial composition.
John Tanton, an ophthalmologist from Michigan, who was once president of Zero Population Growth and the founder of the Federation for American Immigration Reform, stated in hyperbolic terms his view of the alarming significance of immigration for demographic change. He was also an ardent promoter of population control, restricting immigration, and making English the official language of the United States. He wrote a now infamous memorandum in 1988 about Latina fertility and “the Latin onslaught”: “Will Latin American immigrants bring with them the tradition of the mordida (bribe), the lack of involvement in public affairs, etc.? Will the present majority peaceably hand over its political power to a group that is simply more fertile? … On the demographic point: Perhaps this is the first instance in which those with their pants up are going to get caught by those with their pants down!” (Conniff Reference Conniff1993: 24).
The National Review’s June 22, 1992 issue featured a cover illustration of the Statue of Liberty standing with a very serious expression on her face and her arm straight out with palm up in a halting gesture. The text informed us that she is redirecting the flow of immigrants to another country: “Tired? Poor? Huddled? Tempest-Tossed? Try Australia. Rethinking Immigration.” In the feature article, “Time to Rethink Immigration?,” Peter Brimelow (1992: 45) found that Hispanics are particularly troublesome: “Symptomatic of the American Anti-Idea is the emergence of a strange anti-nation inside the U.S. – the so-called Hispanics.” Brimelow used Latinos as a bully pulpit from which to launch a diatribe about bilingualism; multiculturalism; multilingual ballots; citizenship for children of illegal immigrants; the abandonment of English as a prerequisite for citizenship; the erosion of citizenship as the sole qualification for voting; welfare and education for illegal immigrants and their children; and congressional and state legislative apportionment based on populations that include illegal immigrants (Brimelow 1992). For Brimelow and The National Review, Latino social and biological reproduction were the reasons for Latinos being characterized as a “problem.”
The alleged high fertility of Latinos was part of an apocalyptic vision of the future in the February 1994 issue of The Atlantic Monthly. In the article titled “The Coming Anarchy,” Robert D. Kaplan (1994: 75) warned of a “new cartography” in which political borders as fixed and abrupt lines are replaced by “buffer entities.” The Latino buffer entity replaces the precise U.S.-Mexico border. This new map is “an ever-mutating representation of chaos” that changes in response to migrations of people, explosions of birth rates, and disease.
These concerns with Mexican immigrant women’s fertility were central to the “Save Our State” movement in 1994 that led to California’s Proposition 187, which sought to curb undocumented immigration by denying undocumented immigrants social services, particularly prenatal care and education for their children.1 Bette Hammond, one of the organizers of Proposition 187, characterized Latina immigrants in her hometown in a way that emphasized the threat of reproduction: “They come here, they have their babies, and after that they become citizens and all those children use social services” (Kadetsky 1994). Pete Wilson, governor of California from 1991 to 1999, made denying undocumented immigrant women prenatal care a top priority of his administration (Lesher and McDonnell 1996). The 1996 welfare reform law also targeted medical services for immigrant women (Fix and Passel 1999).
The advocates of reducing access to health care, education, and other social services believed this would eliminate the principal attractions that immigrants, both legal and undocumented, have for migrating to the United States. In addition, because immigrant women and children are more likely than immigrant men to use health care, educational services, and other social services, denying immigrants these social services would, supposedly, reduce the incentives for family formation (i.e., reproduction), and thus fewer spouses and children of immigrant workers would decide to come to the United States (Chavez 1986, 1988; Chavez, Cornelius, and Jones 1985; Chavez et al. Reference Chavez1992). Immigrants, especially women and children, already in the United States would decide to go “back home.” Governor Wilson emphasized this point when, shortly after President Clinton’s signing of the 1996 welfare reform into law, he ordered state agencies to stop providing prenatal care services to undocumented women. Prenatal services are, according to Wilson, a “magnetic lure” that causes women to come to the United States illegally (Lesher and McDonnell 1996).
The threat of Mexican fertility to American society continues into the twenty-first century. Samuel P. Huntington (Reference Huntington2004: 32) raised the alarm in Foreign Policy: “In this new era, the single most immediate and most serious challenge to America’s traditional identity comes from the immense and continuing immigration from Latin America, especially from Mexico, and the fertility rates of those immigrants compared to black and white American natives.”
Overuse of Social Services
A second theme focuses on undocumented immigrants’ use of welfare and other social services, displacement of U.S. citizens from jobs, and crime. U.S. News & World Report’s April 25, 1977 issue focused on these topics, beginning with the cover headline: “Border Crisis: Illegal Aliens Out of Control?” The invasion metaphor raised the specter of a nation under siege, with its national security at stake: “On one point there seems little argument: The U.S. has lost control of its borders” (Kelly 1977: 33). But the specific “out of control” behavior emphasized in the magazine is the use of welfare and related social services, which threatens the economic security of the nation.
Themes often become intertwined, especially those of Latina biological and social reproduction, immigration, and the overuse of social services. Both U.S. News & World Report (March 7, 1983) and Newsweek (June 25, 1984) published covers that serve as examples. U.S. News & World Report’s cover announced “Invasion from Mexico: It Just Keeps Growing,” emblazoned over a photograph of men and women being carried across a canal. At the head of the line was a woman sitting on a man’s shoulders. Newsweek used a similar cover, a photograph of a man carrying a woman across a shallow body of water. The woman wore a headscarf and a long shawl. The man carried her handbag, which suggests she is traveling somewhere, moving with a purpose and for an extended amount of time. She held a walking cane. The title read: “Closing the Door? The Angry Debate over Illegal Immigration. Crossing the Rio Grande.”
Featuring women so prominently on the covers of these two national magazines sent a warning of an “invasion” and also a clear message about fertility and reproduction. Rather than an invading army, or even the stereotypical male migrant worker, the images suggested a more insidious invasion, one that included the capacity of the invaders to reproduce themselves. The women being carried into U.S. territory carry with them the seeds of future generations. The images signaled not simply a concern over undocumented workers, but a concern with immigrants who stay and reproduce families and, by extension, communities in the United States. These images, and their accompanying articles, focused attention on issues of population growth, use of prenatal care, children’s health services, education, and other social services.
Reconquest of the U.S. Southwest
A third theme characterizes Latino social and biological reproduction as a takeover, or “reconquest,” of the United States. Key to this theme is the example provided by the French-speaking Canadians (the Quebec model) who sought separation from English-speaking Canada. The reconquest theme surfaced in the U.S. News & World Report’s December 13, 1976 issue, which featured the headline “Crisis Across the Borders: Meaning to U.S.” The problem in Canada was Quebec, where many French-speaking residents were pushing for greater sovereignty and even separation from the English-speaking provinces. The crisis in Mexico was the potential for increased migration to the United States. The “Quebec problem” would come to serve as a metaphor, or civics lesson, for the “Mexican problem” in later years. For example, U.S. News & World Report’s March 9, 1981 issue featured an illustrated map of the North American continent, including Mexico. The United States was the focal point of the map and the stars and stripes of the U.S. flag covered it. To the north was Canada, with the image of a Mountie holding the Canadian flag and a French Canadian holding the Quebec flag in one hand and raising his other hand in a defiant, closed-fisted gesture toward the Mountie. To the south was Mexico. The text said the image is about “OUR TROUBLED NEIGHBORS – Dangers for U.S.” The cover’s image suggested that Mexican immigration and the growing Mexican-origin population will pose a problem for the United States much as the Quebecois movement did for Canada.
Reproduction, immigration, and the reconquest came together in U.S. News & World Report’s August 19, 1985 cover. Its headline announced: “The Disappearing Border: Will the Mexican Migration Create a New Nation?” The accompanying article, titled “The Disappearing Border” (Lang and Thornton 1985: 30), establishes a reconquest theme:
Now sounds the march of new conquistadors in the American Southwest. The heirs of Cortés and Coronado are rising again in the land their forebears took from the Indians and lost to the Americans. By might of numbers and strength of culture, Hispanics are changing the politics, economy and language in the U.S. states that border Mexico…. Their movement is, despite its quiet and largely peaceful nature, both an invasion and a revolt. At the vanguard are those born here, whose roots are generations deep, who long endured Anglo dominance and rule and who are ascending within the U.S. system to take power they consider their birthright. Behind them comes an unstoppable mass – their kin from below the border who also claim ancestral homelands in the Southwest, which was the northern half of Mexico until the U.S. took it away in the mid-1800s.
Significant in this rendering of the reconquest narrative is that the threat is extended to Mexican Americans whose families have lived multiple generations in the United States. Their “expanding numbers” (read: demographic growth) are the fuel making the reconquest possible. Also notable is that even after generations, Mexican Americans are characterized as socially nonintegrated to the point of being an internal threat. In essence, their allegiance to the nation is presented as suspect in that they are portrayed as a part of a conspiracy to take over U.S. territory.
Samuel P. Huntington raised the alarm of a Mexican take over: “The invasion of over 1 million Mexican civilians is a comparable threat [as one million Mexican soldiers] to American societal security, and Americans should react against it with comparable vigor. Mexican immigration looms as a unique and disturbing challenge to our cultural integrity, our national identity, and potentially to our future as a country” (2000: 22).
The combined effect of representations of the threat out-of-control fertility, the threat of overuse of social services, and the threat of a reconquest of the United States is to portray Latinos as a threat to the nation. As Pat Buchanan put it on MSNBC (March 24, 2009):
Mexico is the greatest foreign policy crisis I think America faces in the next 20, 30 years. Who is going to care, Andrea, 30 years from now whether a Sunni or a Shia is in Baghdad or who’s ruling in Kabul? We’re going to have 135 million Hispanics in the United States by 2050, heavily concentrated in the southwest. The question is whether we’re going to survive as a country.
Such fears have not been lost on in rhetoric surrounding political campaigns. For example, simply showing three men who “look” Mexican, with the caption “Illegal Aliens,” appears to be enough to suggest the Latino Threat Narrative, as the ad by Sharron Angle (running against Harry Reid for the U.S. Senate seat in Nevada in 2010) demonstrated. As it turned out, these young men were photographed in Mexico, and had not been in the United States. Or even more to the point was the political ad by Arizona State Senator Russell Pearce. The ad featured a photograph of a woman holding a young girl, with children of various ages sitting on the ground around her in a place that looks like a desert, the implication being that they are resting while they cross the U.S.-Mexico border. The words “Ending Birthright Citizenship” are boldly written across the bottom of the photograph. Although the woman does not appear to be pregnant, she is holding a young child, elements that make the image resonate with Daniel Ibsen Morales’s (Reference Morales2009: 65) observation that “[T]he paradigmatic vision of ‘illegal’ immigration would surely feature a Mexican woman, brown-skinned and mestiza, nine-months pregnant, crossing the Rio Grande under cover of night.”
In a similar vein, presidential candidate Herman Cain used the Latino threat to drum up the crowd’s enthusiasm at a rally in Tennessee on October 15, 2011. He proposed dealing with immigration by building a fence along the U.S.-Mexico border: “It’s going to be 20 feet high. It’s going to have barbed wire on the top. It’s going to be electrified. And there’s going to be a sign on the other side saying, ‘It will kill you – Warning’” (Wyatt Reference Wyatt2011). Although he later claimed it was a joke, he also later said such a policy would be a consideration under his presidency. Even as a joke, electrifying Mexican immigrants is an extremely disturbing image. But such drastic measures rhetorically match the extreme characterization of Mexican immigrants as a threat to the nation.
It is this context that frames the public debate over what do to with the children of undocumented immigrants. The threat narrative applied so easily to immigrant parents has increasingly been applied to their children, both to those 1.5-generation children raised in the United States and second-generation, U.S.-citizen children. For the former, their threat is evidenced in public discourse surrounding a “path to citizenship” for undocumented youth (the Development, Relief and Education of Alien Minors Act [DREAM Act]) and for the latter proposals to change the Fourteenth Amendment and deny birthright citizenship to the U.S.-born children of undocumented immigrants.
The 1.5-Generation Children of Undocumented Immigrants
The literature refers to the 1.5 generation as those who migrated at a young age (typically under fifteen or sixteen years old) in recognition of the fact that most or all of their schooling and much of their cultural and social development occur in the host country (Olivas Reference Olivas2012a; Portes and Rumbaut Reference Portes and Rumbaut2001; Rincón Reference Rincón2008; Rumbaut Reference Rumbaut2004). According to the Pew Hispanic Center’s research, there were 1.5 million undocumented children under age eighteen living in the United States in 2008 (Passel and Cohn Reference Passel and Cohn2009). Although there are many similarities between the unauthorized 1.5-generation and the second-generation children of immigrants, there is an important difference between them, that is, their relationship to citizenship status (Bean et al. Reference Bean, Brown, Leach, Bachmeier, Chavez, DeSipio, Rumbaut, Lee and Zhou2006). Most notably, some of the 1.5 generation experienced a condition of illegality because of their unauthorized entry into the United States. And because moving from an illegal status to a legal permanent resident has become much more difficult as a result of changes in U.S. immigration law, most notably the 1996 Illegal Immigration Reform and Immigration Responsibility Act, many 1.5-generation adults continue to live in the United States without proper documentation from the federal government (Bunis and Garcia Reference Bunis and Garcia1997).2
“Illegal” refers to unauthorized residents who entered the country without permission from government authorities, or they may have entered with permission – tourist or student visas – but then overstayed visa end dates. “Illegality,” as Susan B. Coutin (Reference Coutin2007: 9) observed, has meant that “individuals can be physically present but legally absent, existing in a space outside of society, a space of ‘nonexistence,’ a space that is not actually ‘elsewhere’ or beyond borders but that is rather a hidden dimension of social reality.” A slight variation on Coutin’s representation is that to be illegally present is not to be “outside of society” but to be allowed to participate in some aspects of society, schooling, for example, but not others, work, for example. As a condition, being “illegal” contributes to subjective understandings of the world and to identity, and therefore should be kept as a concept and social identifier (Coutin Reference Coutin2000; De Genova Reference De Genova2002; Menjívar Reference Menjívar2006; Suárez-Navaz Reference Suárez-Navaz2004; Willen Reference Willen2007).
To explore the subjective experience of illegality we need to focus on what is meant by abject status (Gonzales and Chavez Reference Gonzales and Chavez2012). Abject means “to cast away” or “to throw away.” Abject has been used to describe those in the lowest, most contemptible, and most wretched social status.3 As Judith Butler (Reference Butler1999: 169) notes, “The ‘abject’ designates that which has been expelled from the body, discharged as excrement, literally rendered ‘Other.’ This appears as an expulsion of alien elements, but the alien is effectively established through this expulsion.” Various intersections of race, gender, sexuality, nationality, migrancy, and any number of other categories can demarcate the abject in society. For our purposes here, it is the body of the nation from which undocumented children of immigrants’ face expulsion. Although those in a condition of illegality live their quotidian lives in the nation, they are often not perceived nor legally fully rendered as part of the nation (Chavez 2013: 183).
Because undocumented children grow up steeped in U.S. culture, their illegality poses fundamental dilemmas. They must often make critical life decisions within the constraints caused by their status (see Gonzales, Heredia, and Negrón-Gonzales, Chapter 7). Lupe, who was twenty-one years old when I interviewed her and was brought to the United States at age eight, explained the anxiety she felt trying to decide if going to college was a possibility for her.
You become depressed, you become very depressed. You work so hard and now what? You start questioning yourself. Is it worth it? Was it worth it? And what now? You have two options. Either you take the college route because education is education, and I’m learning and I like what I’m learning, and I’m going to continue to learn. Or you take the other route, where you just say, that’s it. I’m just going to start working. It wasn’t worth it. My mom or my dad, or my neighbor, was right. Why am I still going to school if I am not going to be able to continue with my education. So two paths, you have to decide which one to take.
Lupe’s comments reflect the depth of her anguish at her abject status and uncertain future. Ultimately, she decided to attend the University of California. Many young undocumented students try to continue their education, knowing that ultimately being undocumented will mean they cannot put their education to work without risking any hope of becoming a legal resident. Rather than passively accept this state of affairs, many students across the country have formed a number of organizations, such as Immigrant Youth Justice League and The DREAM Act Coalition, with the goal of promoting federal legislation that would provide them with a way to legalize their status. They also advocate for laws at the state level to allow them to attend colleges and universities, receive financial aid, join the military, and pursue other avenues social integration.
The DREAM Act provides a six-year-long conditional path to citizenship that requires completion of a college degree or two years of military service. To qualify, a person must have entered the United States before the age of sixteen; been in the United States at least five consecutive years prior to the bill’s enactment; must have graduated from a U.S. high school, obtained a General Educational Development Test diploma, or been accepted into college or university; must be between the ages of twelve and thirty-five at the time of the application; and must have a good moral character. However, the DREAM Act has been in Congress, in some form, for years without passage.4 Each time the DREAM Act comes up for a vote in Congress, the DREAMers’ hopes are raised, only to be deflated (Abrego Reference Abrego2006; Abrego Reference Abrego2011; Gonzales Reference Gonzales2008; Negron-Gonzales Reference Negron-Gonzales2009; Olivas Reference Olivas1995; Perez Reference Perez2009, Reference Perez2011; Ramirez Reference Ramirez2008). There have been some victories, however, at the state level. On July 25, 2011, California Governor Jerry Brown signed into law the California Dream Act, which allows undocumented college students to apply for privately funded financial aid (Reston 2011).
Without a resolution, undocumented youth raised in this country often feel unwanted, as if society is willing to just throw their lives away. Catarina, a twenty-one-year-old University of California student with a 3.9 grade point average, was brought to the United States when she was eight years old. She expressed how living an abject life has affected her:
I think if you have obstacles to integrating, one, they don’t want you to integrate. Obviously, they have the obstacles for you not to integrate, so you get to the point where you know what, I don’t want to integrate, whether you will eventually want me to integrate for any reason, I am no longer willing to integrate…. After September 11, I felt American. And it’s amazing because regardless of political inequalities, I think of my life and what would it have been if I had not been here. And here I am. There are obstacles, but it’s better. It’s better here even with the inequalities. I guess it’s human nature. We just want something better.
In his 2011 State of the Union address, President Obama highlighted the plight of undocumented students:
Today, there are hundreds of thousands of students excelling in our schools who are not American citizens. Some are the children of undocumented workers, who had nothing to do with the actions of their parents. They grew up as Americans and pledge allegiance to our flag, and yet they live every day with the threat of deportation. Let’s stop expelling talented, responsible young people who could be staffing our research labs or starting a new business, who could be further enriching this nation.5
It is important to note that the threat of deportation for undocumented immigrants, including the DREAMers, actually increased under President Obama’s administration. For example, in 2009, 387,790 people were deported, a 5 percent increase over 2008, the last year under George W. Bush’s administration (Medrano 2010). However, in a dramatic change in policy, the Obama administration, in August 2011, began reviewing all deportation cases in order to focus on criminals. Those who have not been convicted of a crime would possibly receive a suspension of deportation and be allowed to stay and also be able to apply for work permits (Preston Reference Preston2011). However, by the end of March 2012, the review of about three hundred thousand pending deportation cases had only resulted in 2,609 men and women being allowed to stay temporarily in the United States (Foley 2012). Despite the slow pace of the review process and the small percentage of deportations being stayed, this policy has raised the hopes of many, including the DREAMers. As one twenty-one-year-old undocumented student who was brought to the United States as a boy, and whose mother is facing deportation put it: “It makes me happy and hopeful. I hope they go through my mother’s case, stop her deportation and, if possible, get her a work permit” (Goffard, Esquivel, and Watanabe 2011).
A major problem with the Obama administration’s policy of deportation case review is that it does not provide DREAMers or other undocumented immigrants with a path to citizenship, which is something only Congress can do (Olivas Reference Olivas2012b). This is also the problem that plagues the Deferred Action for Childhood Arrivals (DACA) program, initiated by President Obama on June 15, 2012. DACA allows the Department of Homeland Security to grant relief to undocumented individuals who have been ordered to leave the country, or to grant relief to undocumented individuals who come forward but who have not undergone removal proceedings. DACA defers forced removal for two years. To be eligible, an undocumented immigrant must have come to the United States under age sixteen; be under age thirty-one as of June 15, 2012; have lived continuously in the United States since June 15, 2007; have not committed a felony or significant misdemeanour; have not posed a threat to national security; and have pursued an education or military service. Importantly, DACA does not provide a path to legal permanent resident status or citizenship. Individuals who come forward under DACA face possible deportation in the future, unless Congress passes comprehensive immigration reform and provides permanent relief, that is, a path to citizenship. Meanwhile, individuals who receive deferred action are considered in the United States under the color of law and can apply for employment authorization and government benefits such as a driver’s license. However, Arizona’s Governor Jan Brewer issued an executive order making DACA recipients ineligible for public benefits, including driver’s licenses, for which Arizona now faces a federal lawsuit (Winograd Reference Winograd2012).
Despite what appears as renewed interest, even among Republicans, in finding a solution to the immigration quagmire after President Obama’s reelection, recognizing 1.5-generation undocumented immigrants as full members of society is far from settled (Bennett and Mascaro Reference Bennett and Mascaro2012). For example, agreement on provisions for a possible DREAM Act is also in contention. Republican Senators Kay Bailey Hutchison (Texas) and Jon Kyl (Arizona) have offered their own version, called the Achieve Act, which does not provide a direct path to citizenship (Fabian Reference Fabian2012). The proposed bill lowers eligibility to those brought to the United States by age thirteen or younger, and they can be no older than twenty-eight when applying, have no criminal record, and provide proof that they know English. Those qualifying under the Achieve Act would receive a new type of nonimmigrant visa (W-1), which would allow them to seek a college degree or military service. However, they would not be eligible for federal public welfare benefits or other government assistance, including federal student loans. After completing a college degree or four years of military service, they would be eligible for a four-year nonimmigrant work visa, and after that they could obtain a permanent nonimmigrant visa. To acquire permanent legal status, Achieve Act recipients would have to marry a citizen or use one of the other existing opportunities available to nonimmigrant visas (Fabian Reference Fabian2012). In short, the Achieve Act adheres to the characterization of 1.5-generation undocumented immigrants as outsiders, as those whose belonging and full membership in society is yet to be fully accepted.
In sum, undocumented 1.5-generation young people live in a legal limbo. They are guaranteed some legal protections and even rights, especially the right to primary- and secondary-level education. And yet, they remain socially stigmatized because of their status as “illegal immigrants” and subject to the vagaries of deportation policies and practices. Rather than being removed from such a condition, citizen children of undocumented immigrants are increasingly stigmatized in public discourse and their citizenship questioned.
Anchor Babies
Lina Newton (Reference Newton2008: 164) examined statements made by congressional legislators between 1994 and 1996 that not only characterized undocumented immigrants as undesirable and undeserving members of society, but they increasingly attributed those same characteristics to legal immigrants.6 Now even U.S.-born citizen children of undocumented immigrants are characterized as undesirables and threats to the nation (Romero Reference Romero2008). In 2008, there were about four million U.S.-born/U.S citizen children of undocumented immigrants (Passel and Cohn Reference Passel and Cohn2009). Public debate has increasingly focused on these U.S.-born children and whether they deserve to be citizens of the United States. How did this issue become such an important part of the immigration debate? After all, these are American citizens, not illegal immigrants. Using Internet blogs, television, radio, and other media, proponents of more restrictive immigration policies characterized these citizens as different from other citizens. To accomplish this, a new term (or subject position a la Michel Foucault) was introduced into public discourse, the “anchor baby.” Unlike other citizens, anchor babies are characterized as undeserving citizens because they are part of a devious plot cooked up by their undocumented parents to circumvent the laws of the United States.
It is interesting that during the course of my own research in the 1980s, which I published in Shadowed Lives (Chavez 1992), I also used the anchor metaphor. I spoke of the many social and cultural linkages to U.S. society I found among undocumented families with U.S.-born children, and their children’s desire, no matter their citizenship status, to stay in the United States. I noted that “This perception of their children’s attitudes helps anchor parents in the United States” (Chavez Reference Chavez1992: 179), a finding that helped me explain why undocumented immigrants might stay longer in the United States than they originally intended. In the overwhelming majority of cases, it is this sense of anchoring that, in my experience, is part of the migration process experienced by undocumented immigrants. But this anchoring effect is a completely different form than that proposed for “anchor babies.”
The “anchor” metaphor has a more ominous connotation in the anchor baby public discourse. Beginning in the 1990s, Michelle Malkin, a conservative pundit regularly seen on Fox News and a contributor to Internet blogs, was one of the earliest popularizers of the term anchor baby. In a 2003 article in Jewish World Review she linked birthright citizenship to undocumented immigration and to post-9/11 fears of terrorism: “Clearly, the custom of granting automatic citizenship at birth to children of tourists, and temporary workers … and to countless ‘anchor babies’ delivered by illegal aliens on American soil, undermines the integrity of citizenship – not to mention national security…. The citizenship clause has evolved into a magnet for alien law breakers and a shield for terrorist infiltrators and enemy combatants” (Malkin Reference Malkin2003).
Malkin again wrote about anchor babies in her blog entry for June 13, 2004:
During my book tour across the country for Invasion, this issue [of anchor babies] came up time and again. In the Southwest, everyone has a story of heavily pregnant women crossing the Mexican border to deliver their “anchor babies.” At East Coast hospitals, tales of South Korean “obstetric tourists” abound. (An estimated 5,000 South Korean anchor babies are born in the US every year). And, of course, there’s a terrorism angle.
Ironically, Michelle Malkin was born on October 20, 1970, in Philadelphia to Filipino parents who were in the United States on student visas. This would make Malkin an anchor baby and ineligible of citizenship under proposed changes to the Fourteenth Amendment and the restriction of birthright citizenship to only children of citizens or legal residents.
Lou Dobbs used his CNN television program to help make anchor babies a household term. Dobbs emphasized the threat posed by anchor babies because they are part of a plot by their parents to gain U.S. citizenship. As Dobbs explained on March 5, 2007: “Each year, thousands of women enter the United States illegally to give birth, knowing that their child will thus have U.S. citizenship. Their children immediately qualify for a slew of federal, state, and local benefit programs. In addition, when the children turn 21, they can sponsor the immigration of other relatives, becoming ‘anchor babies’ for an entire clan.”
Senator Lindsey Graham, on Fox News July 27, 2010, provided one of the most egregious arguments for questioning the deservingness of so-called anchor babies’ citizenship. He said, “People come here to have babies. They come here to drop a child. It’s called drop and leave. To have a child in America, they cross the border, they go to the emergency room, they have a child, and that child’s automatically an American citizen. That shouldn’t be the case. That attracts people for all the wrong reasons” (Barr Reference Barr2011). Graham uses an animal metaphor when characterizing undocumented mothers as coming “to drop” a child. In English, we speak of animals, cats, horses, and so forth, as dropping their litter or foal. Humans give birth. Through this usage, Graham both dismisses the women’s humanity and underscores their threat to the United States by having babies that are part of a conspiracy to circumvent the nation’s immigration laws.
A major problem with characterizing anchor babies as part of a nefarious plot is that most undocumented migrants come to work in the United States (Berk et al. 2000). While some people may cross the border to deliver babies, for most undocumented immigrants having a child in the United States is a secondary effect of immigration, a result of forming a family in the United States or of a spouse coming to join someone already here. Another problem is that the 1996 immigration law made sponsoring a relative much more expensive. Sponsors have to sign a guarantee of responsibility for any and all costs the person or persons they sponsor might incur. This is to guarantee that the sponsored persons do not use publically funded medical and other social programs. But it is a heavy financial burden for low-income citizens to bear.
Despite the factors limiting the usefulness of having a U.S.-citizen child when, twenty-one years later, sponsorship of parents might be possible, the anchor baby concept has effectively characterized these young people as undeserving citizens, which has spawned a call to change the nation’s citizenship laws.
Challenges to the Fourteenth Amendment and Birthright Citizenship
The Fourteenth Amendment to the U.S. Constitution makes citizenship through birth the law of the land (see also Kerwin, Chapter 14). Known as the principle of jus soli, the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” To a certain degree, the Fourteenth Amendment codified common law and practices concerning birthright citizenship in the United States up to that time, at least for “free white people.” Probably because of the taken-for-granted assumptions borrowed from English common law (birth on the sovereign’s territory meant one was a natural-born subject), the original U.S. Constitution only mentions “natural born citizens” to indicate that those born on U.S. territory were citizens and thus able to be president. As Jennifer L. Hochschild and John H. Mellonkopf (Reference Hochschild and Mollenkopf2009: 279) have noted, “… in settler societies like the United States, jus soli was useful in integrating immigrants of diverse origins into a new nation.”
While the principle of citizenship through birth, jus soli, was common law and practice in the early republic, it was not applied to babies born to nonwhites. After the Civil War, the Fourteenth Amendment to the U.S. Constitution made citizenship through birth the law of the land in order to guarantee citizenship to African Americans, who had routinely been excluded from citizenship even though they were born on U.S. soil. Nonetheless, birthright citizenship was not yet settled. U.S.-born Asians were still routinely denied citizenship. However, in 1898 the U.S. Supreme Court in United States v. Wong Kim Ark decided that Asians born in the United States are also U.S. citizens, regardless of their parents’ citizenship status (as nonwhites, their Asian-born parents could not be citizens at that time) (Jusia.com 2011).7
The contemporary public debate over birthright citizenship for U.S.-born children of undocumented immigrants emerged in the 1980s when two Yale professors, Peter H. Schuck and Rogers M. Smith, published Citizenship without Consent: Illegal Aliens in the American Polity (Schuck and Smith Reference Schuck and Smith1985). In their book, Schuck and Smith argued against the Fourteenth Amendment’s granting birthright citizenship to the children of undocumented immigrants. They argued that the United States should move away from its principle of inclusion through birthright citizenship, jus soli, and replace it with citizenship by consent. The consent principle would make citizenship subject to consent, or agreement, of the nation, and, if so allowed, by the consent of those seeking citizenship upon reaching the age of legal majority. The consent principle holds out the possibility that U.S.-born children denied birthright citizenship might also be denied the opportunity of citizenship at a later age because of the nation or state’s lack of consent. (The problem of the ambiguous status of U.S.-born noncitizens is discussed further in the following chapter.) Moreover, Schuck and Smith argued that “subject to the jurisdiction thereof” only applies to legal immigrants not unauthorized immigrants. This argument does not view undocumented immigrants as being under the jurisdiction of the nation’s laws as “people” and yet, contrary to Schuck and Smith’s argument, undocumented immigrants are not free to break state or national laws, and they are subject to most of the same constitutional protections as other “people” in the nation. The citizenship through consent argument also goes against precedent set in the Wong Kim Ark case, and raises the possibility that the consent principle might also be applied to U.S.-born minorities who are out of favor or stigmatized as a threat to the nation at a particular historical moment. In short, when might the principle of consent for citizenship become a principle of exclusion?
Congressional challenges to automatic birthright citizenship for the U.S.-born children of undocumented immigrants began in the early 1990s. In June 1995, a House of Representatives task force chaired by Representative Elton Gallegly (Republican from Simi Valley) recommended an amendment to the U.S. Constitution to end automatic citizenship for U.S.-born children whose parents are undocumented immigrants (Lacey 1995). Representative Gallegly was an early proponent of this policy (Gallegly 1991). At about the same time, Representative Brian Bilbray of San Diego proposed a measure that “fine tunes” the Fourteenth Amendment, thus avoiding a battle over amending the Constitution. Representative Bilbray’s measure would have changed the Fourteenth Amendment to specify that children born in the United States must have parents who are U.S. citizens or legal residents in order to receive citizenship. Both of these suggested changes to the nation’s citizenship laws continue to generate heated debate. And similar measures to deny U.S. citizenship to children born to undocumented immigrants have repeatedly been considered in the U.S. Congress: the U.S. Citizen Reform Act of 2005 and the Birthright Citizenship Act of 2007. In 2011, Representative Steve King (Republican from Iowa) introduced the Birthright Citizenship Act of 2011 into the House of Representatives, and four Republican Senators, David Vitter (Louisiana), Jerry Moran (Kansas), Mike Lee (Utah), and Rand Paul (Kentucky) introduced a similar resolution to amend the Fourteenth Amendment of the Constitution.
The Birthright Citizenship Act of 2011 proposes a change to the definition of “under the jurisdiction thereof” to qualify for citizenship.8 A child born in United States would acquire birthright citizenship if one of its parents is a citizen or national of the United States; an alien lawfully admitted for permanent residence in the United States whose residence is the United States; or an alien performing active service in the armed forces. Babies with two parents who are undocumented immigrants, or who cannot prove they qualify for one of the three provisions, would not acquire birthright citizenship. The bill ends there. It does not clarify what status, rights, and responsibilities would befall the children who are U.S.-born noncitizens. Nor does it clarify how they would be identified, nor any actions or nonactions to be taken by government authorities toward these newborns. While the law would produce a new category of people, U.S.-born noncitizens, it does not consider the legal implications, intended or unintended, of the law.
Representative Steve King (Republican from Iowa), who introduced the Birthright Citizenship Act of 2011 in the House of Representatives, argued that birthright citizenship is a magnet for immigrants:
The current practice of extending U.S. citizenship to hundreds of thousands of “Anchor Babies” every year arises from the misapplication of the Constitution’s citizenship clause and creates an incentive for illegal aliens to cross our borders…. Passage of this bill will ensure that immigration law breakers are not rewarded, will close the door to future waves of extended family chain migration, and will help to bring an end to the global “birth tourism” industry.
Ending birthright citizenship for the children of undocumented immigrants, according to Representative King, is a way of “doing something” about immigration rather than more directly passing immigration reform legislation. However, Representative King did not provide any empirical evidence that citizenship was actually a major magnet for undocumented immigrants or that massive return migration to the immigrant parents’ country of origin would occur after the bill’s passage. Nor is there evidence for the claim that changing the Fourteenth Amendment’s citizenship clause would “fix” an unclearly defined immigration “problem.”
Politics over birthright citizenship have also moved to the states. Politicians in at least fourteen states are promoting laws to curtail citizenship rights for children of undocumented immigrants (Newsser 2011; Preston Reference Preston2011). State-issued birth certificates would exclude babies born to undocumented parents. Such laws would usher in a two-tiered system of birth certificates with one tier indicating children of a second-class status. Lawmakers claimed such drastic measures were necessary because undocumented immigration was “nothing less than an invasion,” and “a malady of epic proportions” (Preston Reference Preston2011).
Implications
Not surprising, given the acrimonious public debate over anchor babies, birthright citizenship, and the Fourteenth Amendment, in June 2011, a national survey found that 61 percent of Americans opposed granting of citizenship to the U.S.-born children of “illegal aliens” (Rasmussen Reference Rasmussen2011). But what would be the outcome of actual changes to the principle of birthright citizenship in the United States? Unfortunately, the answer is not clear.
Perhaps the most serious possible negative outcome of actually changing the Fourteenth Amendment would be that a whole new group of Americans would be constructed: those born in the United States but who are not citizens. Why is this a problem? First of all, proposed changes to the Fourteenth Amendment are short on details, especially as to the status of U.S.-born noncitizen children. Similar to 1.5-generation undocumented immigrants discussed previously, they would not be citizens but they might have some legal rights and protections. Undocumented children can go to school and fair labor standards and practices regulations apply to them. However, it is not clear if these U.S.-born noncitizens would be deportable. For example, the Fourteenth Amendment states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As noncitizens, these children would not have these protections. Unless special provisions are written into any changes to the Fourteenth Amendment, U.S.-born noncitizens would possibly be deportable, just like their undocumented parents.
Even legal immigrants are deportable if they commit one of the many possible offenses that allow their legal status to be revoked. Changing the Fourteenth Amendment would, in essence, create a class of U.S.-born noncitizens whose lives are just as insecure as undocumented immigrants and even legal resident immigrants. But would they be subject to deportation like undocumented and even legal residents? Would they have to mind their p’s and q’s in ways that citizens do not, or else face deportation? But deportation to where? To their parents’ country of origin? And if deported, what would happen if they returned to the country of their birth, the United States, as unauthorized entrants? Would they be undocumented immigrants who are also U.S. born? What would it mean to have U.S.-born residents and undocumented immigrants living in essentially a similar legal limbo and condition of illegality? At minimum, what we mean by a condition of illegality would take on expanded meaning to include the U.S.-born residents caught in this condition.
This is especially problematic as politicians in individual states attempt to implement their own immigration-related laws, including state citizenship (Newsser 2011; Preston Reference Preston2011). It is up to the courts to determine if state actions go against the Fourteenth Amendment’s prohibition that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” But such laws underscore the problem of easily recognizing citizens and noncitizens. Laws in states such as Arizona and Alabama that allow police to detain and question anyone they “suspect” of being an “illegal alien” already raise the question of racial profiling. The phrase of popular resistance has become, “Do I look illegal to you?” The new phrase might be, “Do I look like a U.S.-born noncitizen to you?” Surveillance regimes of Foucauldian proportions would have to emerge to answer these questions of identity and status.
The idea that by denying these children citizenship, they and their parents will return to their country of origin has no empirical support (Taylor et al. Reference Taylor, Lopez, Passel and Motel2011). The 1.5-generation undocumented immigrants previously discussed will, in all likelihood, continue to reside in the United States despite their status because this is the society they grew up in and desire to continue residing in. U.S.-born noncitizens would be just as likely, or more likely, to continue residing in the United States. Thus, we would have thousands, potentially millions over time, of U.S.-born residents who are not citizens. This ambiguous position, a social and legal limbo, would only add to problems of belonging and social stigma.
Moreover, what if U.S.-born noncitizens cannot meet whatever new requirements are created for them to gain citizenship? Would they be citizens-in-waiting in perpetuity, or would there be an age or time limit, after which if citizenship is not attained they enter into a new status with a different set of rights, or lack thereof?
Finally, what happens to the children of the U.S.-born noncitizens? Because their parents are not citizens, this next generation would also be denied citizenship by birth. Thus a lack of citizenship status can continue over generations. Jennifer Van Hook and Michael Fix (Reference Van Hook and Fix2010) estimate that repealing birthright citizenship would result in 4.7 million unauthorized/U.S.-born people by 2050, with one million of those having two U.S.-born parents. What we would have then in America is a caste, a category in which certain people cannot escape. Social stigma is often ascribed to castes as abject persons lacking full membership in society. Is this not exactly the situation for which the Fourteenth Amendment was needed to remedy in the first place?
Future Research
Research has focused on illegality as an oppressive force, but we need to do more investigations into illegality as an expressive force and as a productive force. That does not mean we abandon examining the devastating implications of illegality. However, if the lives of the 1.5 and second generations, and the DREAMers and their movement, have a lesson for social scientists, it is that resistance and creativity flourish despite, or because of, desperate conditions (see Nicholls, Chapter 10; Abrego, Chapter 6; Hondagneu-Sotelo and Ruiz, Chapter 11; and Gonzales, Heredia, and Negrón-Gonzales, Chapter 7). Our goal as researchers must be to find methodologies that capture the cultural productivity and creativity emerging among the children of immigrants as they change, and as they change the nation. Perhaps among all the investigative techniques, participant observation and other ethnographic methods offer an advantage for capturing such creativity “on-the-fly,” or as it occurs.
As we widen our gaze, it is clear that we need to examine the myriad ways illegality affects everyone in society. Illegality produces laws, media spectacles, art forms, music, novels, movies, television characters, stereotypes, cartoons, public debates, empathies, dogmas, scapegoats, jobs, economic fetishism, commodities (human and material), traumas, privileges, and so forth. Our goal as researchers must include making visible how the condition of illegality entangles all of us in its web.
References
1 For a discussion of the discourse surrounding Proposition 187, see Ono and Sloop, Shifting Borders, 2002.
2 The 1996 Illegal Immigration Reform and Immigration Responsibility Act is available at http://www.uscis.gov/ilink/docView/PUBLAW/HTML/PUBLAW/0–0-0–10948.html (accessed May 16, 2013).
3 See The American Heritage Dictionary of the English Language. 4rth ed. Copyright © 2006 by Houghton Mifflin Company. All rights reserved.
4 According to the National Immigration Law Center, the DREAM Act (S. 1545), was introduced on July 31, 2003, and was reintroduced in the Senate on November 18, 2005. It passed the Senate Judiciary Committee on March 27, 2006. However, Congress failed to pass immigration reform, and with it the DREAM Act, in either 2006 or 2007, and has failed to pass it as of this writing. See http://www.nilc.org/DREAMact.html (accessed May 16, 2013).
5 For the complete text of the 2011 State of the Union address go to http://www.whitehouse.gov/the-press-office/2011/01/25/remarks-president-state-union-address (accessed May 16, 2013).
6 For an extended discussion of Anchor Babies and DREAMers, see Chavez Reference Chavez2013.
7 See also http://en.wikipedia.org/wiki/Wong_Kim_Ark (accessed May 16, 2013).
8 For the text of H.R. 140: Birthright Citizenship Act of 2011 go to http://www.govtrack.us/congress/bills/112/hr140 (accessed May 16, 2013).
