Rapid economic globalization and recent political violence have spawned mass migrations of humanity across international borders throughout the Americas. The migrations have sparked fierce debates in many of the "receiving" countries, in which the combination of exploding demands for cheap foreign labor and state obligations to protect incoming refugees have often provoked strong domestic opposition to the presence of foreign-born individuals—especially those without official documentation. While many of these debates have focused on the enactment of policies restricting the immigration of foreign-born adults, xenophobic sentiments have opened new political spaces to begin imposing limitations on the birth registration of the native-born children of immigrants. Such practices often run counter to the domestic constitutional frameworks for granting citizenship, and violate those children's' human rights by placing them in a situation of legal, social, and economic vulnerability.
The provision of a birth certificate is the first visible manifestation of the state's legal recognition of a child's citizenship. A birth certificate serves as a gateway to many rights, like those to health and education. It also provides the necessary foundation for the exercise of other rights like identifying a child's parentage or documenting his or her age, which have been instrumental in protecting children from societal abuses like child labor or sexual exploitation.
In general, states confer citizenship via the legal principles of jus sanguinis (having an ancestor who is already a national), or jus soli (being born within the territory of a particular state). Today a majority of states in Europe follow the jus sanguinis principle, which serves as a restrictive immigration tool designed to maintain a certain level of ethnic and cultural homogeneity. In the Americas, however, most states follow jus soli and have canonized the principle within their respective constitutions. The recent surge of foreign-born populations in many of those countries, however, has fostered efforts to alter the status quo.
Anti-immigrant sentiment in several countries, often with racial overtones, has led some governments to blur the line between the two principles by crafting legal distinctions that would deny certain classifications of children their full right to citizenship under the jus soli standard. Other governments have blurred the issue by simply failing to provide the necessary resources to ensure that all children born within their domestic borders are registered as citizens at birth.
The Dominican Republic, for example, has been desperately trying to reinterpret its constitution in order to deny citizenship to Dominican children of Haitian descent. Article 11 of the Dominican constitution confers Dominican nationality to any person born within that country's territory, with two caveats for children born to foreign diplomats and those born to individuals "in transit."
The government's efforts to limit citizenship stem from a domestic political culture hostile to the presence of Haitians and Dominicans of Haitian descent. This hostility has at times erupted into mob violence fueled by racially charged sentiments that blame Haitians for taking Dominican jobs, and that raise the specter of large-scale Haitian immigration breeding a culture of violence and crime.
The toxic political environment has spawned policies designed to keep the Haitian community in a state of permanent illegality. They included efforts to deny the birth registration of Dominican children of Haitian descent, thus blocking those children from attending school and leaving them vulnerable to deportation. The government has defended its policy by arguing that Dominicans of Haitian decent should not receive Dominican citizenship as their Haitian parents were merely "in transit" in that country upon their birth. A 1999 report by the Inter-American Commission on Human Rights laid bare this claim by stating that many Haitian workers had actually lived in the Dominican Republic for 20 or even 40 years. Despite a 2005 Inter-American Court decision that determined that the Dominican government violated the rights of Dominicans of Haitian descent by refusing to register their births, the government appears intent on defending its past practices by claiming that the court's ruling was part of a broader plot by international organizations to tarnish the country's image.
The United States is another country facing a growing debate over whether or not to impose new restrictions on citizenship. The United States adopted the jus soli principle almost 150 years ago with the passage of the Civil Rights Act of 1866 and the ratification of the Fourteenth Amendment. The enactment of both legal instruments was widely interpreted to confer citizenship to all persons born in the United States regardless of their race, ethnicity, or birth place of parents, a principle affirmed by the Supreme Court shortly thereafter in its opinion United States v. Wong Kim Ark.
What once seemed settled law however has recently come under attack by anti-immigrant forces intent on minimizing the populations of growing ethnic minorities. Their strategy has been to build opposition to immigration via a narrative that criminalizes immigrant workers and demonizes certain ethnic communities as bad for the country. Their hateful rhetoric has crystallized into an aggressive movement that has pushed for the enactment of enforcement-only immigration legislation at the local, state, and federal levels including the limitation of automatic citizenship at birth.
Recent sessions of Congress have seen the introduction of numerous pieces of legislation designed to restrict jus soli citizenship. Some proposals have sought to amend the Fourteenth Amendment to exclude children of undocumented immigrants and even some non-immigrants from automatic birth citizenship. Most of the proposals would require that at least one parent be a U.S. citizen or legal permanent resident in order to receive citizenship at birth. Some, however, would provide citizenship to only those children whose mothers held legal status, effectively limiting the rights of fathers to pass their nationality to their children. There are also corresponding proposals to amend federal statutory provisions governing citizenship but without changes to the Fourteenth Amendment. Those would likely be declared unconstitutional if ever passed into law.
At the state level, citizen-children of immigrant parents are also facing restrictions. In California, anti-immigrant groups are collecting signatures for a state initiative entitled "the California Taxpayer Protection Act of 2010" that intends to save taxpayers money by institutionalizing the second class status of citizen children born to undocumented immigrants. If passed, the new law would require hospital officials to stamp the word "foreign" on the birth certificates of all children whose parents could not provide proper documentation of citizenship or legal resident status, the purpose being to deny them access to state social services.
Even without legislation, citizen-children often face barriers to rights and privileges other children more easily enjoy. Many immigrant parents' confusion over eligibility rules, and fears of interactions with governmental officials, combine into de-facto barriers to public benefits for their citizen children. Young men and women graduating from high school also encounter resistance to their classification as state residents for in-state college tuition purposes due to their parents' immigration status. And many children, legally blocked from petitioning for the legalization of their parents, currently face the heart-wrenching possibility of losing them to deportation, and in some extreme cases have even had their parents' parental rights terminated.
Efforts to limit children's citizenship rights are also popping up in countries playing host to refugees of Colombia's political violence. In Panama, the majority of the refugees come from the Afro-Colombian and indigenous communities of the Chocó region in Colombia who left their homes after being targeted by armed groups interested in their mineral rich lands. The Panamanian government has all but formally imprisoned them for years in the tropical forests of the Darien region of Panama's southern border by strictly curtailing their rights to free movement and denying them access to food, medical services, and jobs. Panama's restrictions have also impacted the refugees' children born on Panamanian soil. Although Panama has recognized the jus soli principle within its constitution, the government often fails to register the Panamanian born children as citizens.
Although believed to hold one of the most progressive policy stances towards the thousands of Colombian refugees crossing its borders, Ecuador still struggles to find the resources necessary to meet the enormous demand to properly register the Colombian adults and children who currently reside in that country, including the many children born within Ecuador's borders.
Without the necessary government documentation, Colombians and Ecuadorians of Colombian descent will face barriers towards obtaining social services like healthcare and education that would allow them to adjust better to life in that country. Those barriers to services will also leave them vulnerable to trafficking and or deportation back to Colombia and the violence that caused them to flee in the first place. Colombians and Ecuadorians of Colombian descent also face fierce xenophobic sentiments; they are routinely stigmatized as thieves and drug-traffickers. Legalizing their status will help them come out of the shadows to defend themselves against discrimination.
Despite the present economic crisis, human migration across borders will likely continue, increasing the multicultural character of many countries. If recent trends hold, the growth of foreign ethnic populations will lead to increased efforts to impose limitations on who should receive citizenship. These efforts will likely fall heavily on the rights of citizen-children, whose bodies are slowly being converted into a new front in the struggle over immigration.
Kristina Aiello is a NACLA Research Associate.
