Making the Myth of the “Anchor Baby” a Reality

November 17th, 2014

As someone who practiced immigration law, I find some of the misconceptions about our immigration system interesting.  One of these is a concept called the “anchor baby.” This is the idea that if a person comes to the United States illegally and gives birth to a baby who is thus an American citizen, the illegal immigrant can stay.

In fact, this is not true.  President Obama’s proposed executive order on immigration, however, strangely enough could make this misconception into a reality.

Here’s the current law pre-Obama’s executive order. 

An illegal alien who gives birth to a child in the United States is only legally in this country if, when the child reaches twenty-one years of age, the then adult child successfully petitions on that parent’s behalf for legal authorization.  Technically, this means that an illegal alien can indeed make an inroad around the immigration system through an illegal entry by having a child here, but then only if they can successfully avoid deportation for twenty-one years after the birth of that child.

In other words, the child can stay, but the parent will be subject to deportation for the first twenty-one years of that child’s life.

That’s probably not the most practical way to thwart the immigration laws.

This reality leads to a situation where parents find themselves subject to deportation, and then they are told by immigration authorities that they must leave the country but their children can stay.  Obviously, this scenario is enormously problematic because in some instances it means American citizen children being forced to move to a country where they don’t know the culture or language or in a few instances actually being left in the United States by their parents.

This deportation scenario is especially tough on the children.  I know this firsthand having once handled a case where a parent convicted of white collar crime was put into deportation proceedings, and his American born daughters were clearly afraid to answer the home telephone or door for fear that authorities were coming to take their father.  The mother of these children was also an American, and so the family’s choices were to either be separated or move with the father across the globe.

My sister sells school trips for a living, and she also sees this problem all the time.  Teachers will call her and say that they would have enough students for a trip but for the fact that some of the parents are here illegally, and they’re afraid that if they send their child on an airplane that might raise a red flag to federal authorities about their situation.

In President Obama’s controversial proposed executive order on immigration he cites this problem as the reason for unilaterally changing the law.  He notes the possible separation of families as why he will provide work permits and remove the threat of deportation from parents of American born children who can prove they’ve been in the country for at least five years. 

Besides essentially changing the law himself which is unconstitutional, this proposal is fraught with other problems.  The biggest of these is that from the illegal alien’s point of view this is just an executive order.  It can be overturned by a subsequent president or Congress at any time.  And if that happens, what will it mean for the illegal immigrant?  By obtaining a work permit from the federal government, the alien (which is no disrespect to anyone—it’s actually the proper legal term) will be essentially providing a roadmap later for the government to find and deport them. Clearly, under Obama’s executive order, there are no guarantees and at least some risk going that route.  That begs the question of whether or not many people in this position will actually follow through and pursue what Obama is offering.

Another problem with this is the sticky situation of how it will be implemented.  Most immigration in this country is sponsored either by a family member or an employer.  You don’t just come over here and get a generic work permit and work and change jobs at your whim.  In fact, when you change jobs under the current system, you have to tell the government so they can decide if your new job meets the immigration criteria, particularly whether or not you are being paid a proper wage.

So how does Obama propose this will work?  Will the employer have to make or be included in the petition for the work authorization?  If so, they’re basically acknowledging to the government that they’re employing someone illegally.  How will the government ultimately treat that information, and because of that, will the employer want to support such a petition?

Clearly, Obama is attempting to score political points with this proposal.  While everyone is currently focused on the constitutionality of this action, it might be wise to enlighten the American people as to the practical implications of this act as well. 

Hopefully, when confronted with the facts, Obama might consider working with Congress rather than going it on his own.

I doubt it, but we can always hope.

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