Sapochnick recites a typical recent email. “I’m a U.S. citizen and I’m planning to marry. My spouse is here illegally for the last 10 or 20 years. What are the steps?” Another reads, “I’ve been here for 10 or 20 years, and I married a U.S. citizen, I want to fix my papers. What am I going to do?”
A growing request is “I was born here but my parents who are still here are illegal. How can I sponsor them?” These emails are often crafted with an imploring tone: “My child is a U.S. citizen. He’s over 21. Shouldn’t he be able to help me?” Sapochnick says no, the child can’t help. This appeal he calls the “hot topic of the day” — birthright citizenship.
The first section of the Fourteenth Amendment to the U.S. Constitution states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United Sates and of the State wherein they reside.” This “citizenship clause” overturned the Dred Scott decision, the pre–Civil War law that denied blacks citizenship.
In recent years, Congress has tightened immigration law, funded border security, beefed up penalties for businesses hiring illegals, and denied citizenship to the children of foreign nationals (those brought here at a young age) by defeating the Dream Act. What’s more, many politicians and activists have called the citizenship clause into question; they label those who receive automatic citizenship “anchor babies.” The designation, which critics call racially tinged, implies that parents come here illegally to insure their own presence in America via childbirth.
I ask Sapochnick for reasons his clients cite about their illegal entry. “To give their kids a better future,” he says, “is always the line.” He knows of many pregnant women who cross the border for superior medical treatment and the birthright but then return to Mexico. Later, their children come back (with birth certificate and Social Security number) to work or to attend school. Nowadays, the children must get a passport to go back and forth. This new passport requirement squeezes the children: if they are underage, both parents have to sign the application. Many don’t want to, fearing they’ll be found out and deported. Whenever Sapochnick explains the bureaucratic process to the parents of children born here, “they get depressed.” To illustrate the maze of immigration regulations, Sapochnick diagrams it on a sheet of paper.
“We have a three-step process. First, they file a ‘relative petition’ in the U.S.,” a phrase he writes out and circles. “This takes about five months.
“Once the relative petition is filed, if they are illegal, the case is then sent to the National Visa Center,” a second phrase he writes out and circles.
“What [the attorney does] is to prepare a case for an interview at the U.S. embassy in Mexico.” This, the final step, gets a third circle.
He next draws arrows between the circles. “The whole thing is going to take about one year. In the meantime, they are still here in the U.S.”
For the petitioner, it gets more complicated. “If the person decides to go back to Mexico” to report to the U.S. embassy in Mexico where his or her petition is being processed, with no guarantee that the request will be honored, “he or she will be barred from returning to the U.S. for ten years.” Sapochnick, who has the ultra-patient mien of one who has made this tripartite drawing hundreds of times, draws an arrow on the diagram pointing down to indicate the worst news: returning to Mexico may mean never returning to the U.S. The possibility of a ten-year wait to see their children or to be permanently exiled, he says, stops most parents in their tracks. They must decide whether to leave and take their chances or stay in America in the shadows.
“That’s a very tough decision,” he says.
His success rate for achieving resident or citizenship status for spouses (who marry a U.S. citizen) is 80 percent. “But if it’s a parent, whose child is a citizen” — his tone darkens — “it’s very difficult.”
What Sapochnick would like to see — “I can tell you, in the next ten years, amnesty is not going to happen” — is a return to a short-lived period in early 2001, when immigrants with undocumented status could pay a fine and begin the citizen process without fear of deportation. Signed into law by President Clinton as he left office, section 245i declared that if you proved you’d been in the country for a long time, you could pay a $1000 fine and, as Sapochnick notes, “We’ll let you become legal.” A revival of that law, which ended in April 2001, would, for his clients, mean a kind of pocket amnesty.
Constitutional Precedent and Paradox
Though the challenge to birthright citizenship is fervently embraced by the Tea Party, amending the Fourteenth Amendment has a long and largely impotent career in Congress. In 1993, Nevada Democratic senator Harry Reid wrote a bill clarifying the citizenship clause of the Constitution, stating, in part, that any child born to a mother not of U.S. citizenship is subject to the jurisdiction of the mother’s home country and not the jurisdiction of the United States. His bill never got out of its Senate committee. Since Reid’s proposal, a bill to end or redefine the Fourteenth Amendment has been introduced into each Congress. In the late 1990s, during his first stint on the Hill, Republican Brian Bilbray proposed legislation ending birthright citizenship. (As the representative of San Diego’s 50th district, Bilbray still supports such legislation.) In 2006, President Bush told the states that they would lose federal matching funds for Medicaid — in California, the money funds part of the state-run program, Medi-Cal — if the states failed to document legal residency of their clients. H.R. 1940, called the “Birthright Citizenship Act of 2007,” which would have amended the Fourteenth Amendment, never got out of committee, even in a Republican-controlled Congress. What’s more, neither President Bush nor Senator John McCain supported the bill. Last year, at a Tea Party rally in Ramona, Representative Duncan Hunter, R-El Cajon, called for the deportation of illegal parents and their U.S.-born children, saying, “We’re not being mean. We’re just saying it takes more than walking across the border to become an American citizen. It’s what’s in our souls.”