My Life Without Birthright Citizenship

What might have been

Photos courtesy of my sister

Following his inauguration, Donald Trump signed an executive order to end birthright citizenship. Already, 22 states and the ACLU have filed lawsuits against the order. The cavalcade of legal challenges will take some time to wend its way through the courts, but the intended message is clear: No more loopholes.

I’ve witnessed many immigration policy changes over the years, but this one hit closer to home. You see, I was one of those loopholes.

A change of plans

My parents came to the U.S. on a tourist visa in the early 1970s and overstayed. The goal was to save enough money to open up a bakery in Argentina as soon as possible. It took three years of working multiple jobs to amass the requisite funds while raising my older sister. Then, a setback. A friend to whom they entrusted their investment lost all of their money, three years’ worth of work.

My parents insisted their friend did not double-cross them, that the investment, instead, had gone belly-up. It sounded suspicious to me, but either way, the result was the same: their sudden misfortune extended their timeline.

I won’t bore you with the mundane details that make up their fruitless, yearslong effort to reclaim that sum of money. Suffice it to say, my father never recovered from the loss. A few years later, I was born in Hoboken, New Jersey, an American citizen. My mother, my father, and my sister remained undocumented until President Reagan signed into law the General Amnesty of 1986, effectively giving my family a path to legal permanent residency and citizenship.

Birthright as a bridge?

On some level, I understand the impulse to eliminate birthright citizenship. On paper, it can be exploited as a technicality to secure American citizenship for the children of immigrants and their undocumented parents. The new administration contends that birthright citizenship incentivizes unauthorized immigration. As with so many immigration-related issues, however, theory and reality are worlds apart.

Utilizing the birthright citizenship of one’s child as a bridge for one’s eventual citizenship is laughably inefficient. Parents would have to wait 21 years for their children to be able to sponsor them for a green card. Too many things can go wrong in the intervening years for that to be a viable strategy. It certainly wasn’t my parents’ strategy.

My sister grew up believing the family would move back to Argentina soon, as my father constantly reminded her. She wasn’t born in the United States, even though my parents were living in the U.S. when my mother was pregnant with her. My sister could have (and should have) been born here, but instead they contrived for her to be born in Madrid (a story for another day), a decision that complicated her life for decades. My parents, or at least my father, believed they wouldn’t be around long enough for my sister’s undocumented status to factor. It did.

Things were messy for a while. My sister spent a couple of formative years in Argentina, while my dad stayed back in the U.S., the family separated for that stretch of time. My sister and my mother eventually made their way back through the border, a dangerous gamble orchestrated by my father, one that could easily have ended differently.

In spite of the risks taken to get back here, my father retained hope for a return to Argentina even when I was a child, 15 years or so after moving to the U.S.

The law is the law…until it’s not

My parents are immigrants. I grew up in a community of immigrants. My wife and her family are immigrants, and they lived in a community of immigrants. In my experience, the immigrant journey hardly ever goes according to plan. Birthright citizenship is no exception. It usually happens when immigrants are figuring other things out.

I can already hear the battle cry of the immigration hardliner:

“The law is the law!”

While strictly true, such a rebuttal fails to consider the context of the immigrant experience. That’s really what I’m driving at here. This article is not intended as a defense of birthright citizenship (besides, I think the executive order’s real intent is misdirection). Understanding the context of the immigrant experience reveals the contours of its humanity. Context helps people see other more clearly, more fully. A binary “legal” or “illegal” does not suffice.

Laws are not always moral, after all. Some of the worst atrocities in human history have been committed under the aegis of the law: slavery, the Trail of Tears, the Holocaust, and on and on. More recently, lenders could legally refuse unmarried women a mortgage, once a common practice, until the passing of the Equal Credit Opportunity Act of 1974. Jim Crow laws, which systematically enforced segregation, ended (sort of) only a decade earlier with the Civil Rights Act.

Until not long ago, cannabis was denounced as a gateway drug that cultivated dissolute lifestyles. Today, its recreational use is legal in 24 states (starting in 2012 with Colorado), the District of Columbia, and three territories; medical use of cannabis is legal in 47 states, D.C., and three territories. When I was in college, you got weed from a sketchy guy your friend met in the bathroom of a club in the city. Today, you can purchase cannabis in the form of decadent chocolate truffles in a trendy dispensary from a “budtender.” Before it was decriminalized, many people went to jail, in some cases for years, for possession of marijuana.

All of which is to say social mores change, and laws evolve to reflect those changes. That laws are subject to change proves that a law is not moral by virtue of its existence. A legal maxim known around the world acknowledges this truth:

“An unjust law is no law at all.”

To which I would add: The inhumane enforcement of a law is no law at all.

How, then, do we determine what laws (and their enforcement) are just, and what laws are unjust? Context.

“The right way”

“Come in the right way!” is another favored refrain of immigration hardliners, but to come in “the right way” varies widely from place to place and time to time.

Some Americans cite their ancestors as the model for how to come in the “right way,” usually referring to the Ellis Island era, but immigration was more permissive during this period. Most immigrants were allowed entry, provided they didn’t have a contagious disease or a criminal record. Only about 2% of immigrants were denied entry at Ellis Island.

Immigration at Ellis Island peaked in 1907 with more than a million immigrants, at which point no passports (or other documentation) were required. In total, Ellis Island admitted 12 million immigrants, a significant figure considering the U.S. population was about 63 million when Ellis Island opened, a fraction of today’s 335 million people.

Immigration laws became more restrictive with the passing of the Emergency Quota Act of 1921, replaced by the Immigration Act of 1924, which introduced national origins quotas (82% of visas were earmarked for Western and Northern European countries) and subjected anyone who entered without a visa or inspection to deportation. That same year, the Labor Appropriations Act established the Border Patrol. In 1924, the U.S. government began a broad shift in its approach to immigration policy, from a focus on processing—Ellis Island had been created to handle greater volumes of immigrants—to an emphasis on restriction (although the first major law restricting immigration was the Chinese Exclusion Act).

The national origins quota system officially ended in 1965, but its legacy lives on in the de facto hierarchy of visa issuance. Variable visa backlogs, a patchwork of dispensations for refugees and asylum seekers, and the mercurial nature of immigration policy and enforcement means there is no standard “right way” to immigrate to the United States. The range is galactic.

Even living in the U.S. the right way is not always enough. My wife’s family had a I-360 visa, a petition for a special immigrant, in their case indicating “religious worker.” The protection lapsed after about a decade. Though they ultimately found another path to permanent legal residency, their situation highlights another cruel reality of the immigrant experience: legal temporary status can last for many years. In the meantime, life happens. People have kids, raise children, start businesses, and become part of a community. You can play by the rules for a long time, hoping to parlay temporary status into permanent status, and still be left in the lurch years later.

Almost a century ago, the U.S. government devised a solution for this phenomenon of immigrants falling through the cracks: the Registry statute of the Immigration Act of 1929, which allowed immigrants who lived in the U.S. for a long period of time to obtain a green card, provided they could pass a criminal background check. This statute is still on the books, technically, but it hasn’t been updated since 1986, which means an immigrant must have lived in the U.S. since January 1, 1972 to benefit from it—not terribly practical today.

De facto Americans

How might my life had gone if there were no birthright citizenship when I was born? It’s hard to imagine. I grew up as an American. I collected basketball cards, watched Teenage Mutant Ninja Turtles, listened to Wu-Tang Clan, and read Tales from the Crypt comics. Not even this administration would deny me that. The executive order applies “only to persons who are born within the United States after 30 days from the date of this order.” It’s not retroactive.

Here’s a thought experiment: If it were retroactive, what would happen to me? Presumably, I would eventually be deported to my parents’ country of origin, Spain, which, for me, is a foreign country. I suppose I would get some benefits from the Spanish government, but what would I do for a living? Here, I’m a professional writer. There, I write at a fourth-grade level. Where would I live? Public housing? Spain has precious little inventory compared to other European countries. Would I start off in a shelter? I imagine that as a conspicuous foreigner without his bearings, I wouldn’t fare so well. Here, I live in a beautiful village on the Hudson River, a 35-minute riverside train ride to Grand Central Station. There, I might live in a homeless shelter.

You see, almost all of my family lives in Argentina, but U.S. immigration wouldn’t know, nor would it care. Immigration policy is wielded like a sledgehammer, with big impact and little precision. I do have some distant relatives in Spain. Maybe I could stay with them while I got on my feet. Maybe not. Maybe I would make my way to Argentina, where I would at least have a support system, but then again, the Argentinian economy is far weaker than Spain’s. Whatever I decided, my prospects would be drastically limited. I would be starting from scratch as a middle-aged man with no transferable professional skills in a foreign country.

Could my parents have handled things better? Without a doubt. But was their transgression so great that I, who had no say in the matter, should have to pay so dearly for the rest of my life? Retroactively applying the executive order that would end birthright citizenship would no doubt satisfy the requirements for “extreme hardship.” I think most would agree it would be hard-hearted and unfair. Thank goodness that’s not on the table. But would it really be that different than ending DACA (Deferred Action for Childhood Arrivals) without offering DACA recipients a permanent protection in the form of the DREAM Act?

I find little difference between DACA recipients and me. Many of their parents came here without permission to stay long-term, like mine. They grew up here, like me. Many of them are bilingual, like me. Take my wife, for example. She’s a U.S. citizen now, but she was a DACA recipient back when Trump first tried to scrap it.

My wife, Daniela, came to the U.S. as a toddler. She grew up in Florida, where she watched Full House, The Adventures of Mary-Kate & Ashley, and The Joy of Painting by Bob Ross. She wore Keds, snacked on Mounds bars, and played Clue. She was a Gator during the Tim Tebow era, for crying out loud.

Daniela and I grew up similarly, but later, her life took a turn. For years, she lived with a level of fear and uncertainty I can’t relate to. But why? What was her sin? Like me, she had no say in where she was born and where she grew up. What was the difference between Daniela and me? Nothing but a technicality without sufficient context.

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