ON September 23, 2016, Mariel Rodriguez said goodbye to Robin Padilla to give birth to their baby girl in the United States. Mariel had a visa. Robin did not. He had a criminal conviction for illegal possession of firearms in 1994 and was therefore refused a visa.
He was granted a conditional pardon by then President Fidel V. Ramos. In November 2016, President Rodrigo Duterte granted Robin an absolute pardon. But he was still not able to see Isabella, his newborn baby girl.
Isabella is a US citizen at birth, even if her mother (Mariel) was only a tourist visa holder in the US. Isabella may not be an anchor baby – but one out of every 12 newborn in the US is, according to Pew Research.
The Pew research results, published on October 26, 2014, show that some 275,000 children were born to undocumented immigrants during that year.
Acquiring US citizenship is widely viewed as the reason for birth tourism, recently estimated at 36,000 a year.
The right to US citizenship is guaranteed by the 14th Amendment of the US Constitution, even if the parents are in the US illegally.
“In 2014, there were 4.7 million US-born children younger than 18 living with unauthorizedimmigrant parents.
There also were 725,000 children younger than 18 who were unauthorized immigrants themselves and lived with unauthorized-immigrant parents. These totals do not count US-born children of unauthorized immigrants who do not live with their parents,” Pew Research said.
Of the more than five million unauthorized individuals in the US (which constituted 46 percent of the total undocumented population), 53 percent would be considered of child-bearing age – not counting the age range of 16 to 24 who are also potential anchor baby mothers.
Anchor baby moms
Inside America’s Chinatowns, Chinese visitors, particularly anchor-baby mothers, find a cottage industry of Chinese midwives, drivers and doctors who accept cash and “maternity hotels” — apartments or homes run as hotels for the women during their pregnancies—according to a December 30, 2016 Los Angeles Times report.
Anyone who lies about the purpose of their visit to the US can be charged with visa fraud, but birth tourism per se is not illegal.
“There is nothing in the law that makes it illegal for pregnant women to enter the United States,” Virginia Kice, spokeswoman for the Immigration and Customs Enforcement (ICE), was quoted as saying by the LA Times report.
Interestingly, giving birth in the country is a legitimate reason to travel to the US, especially if – as in the case of Mariel Rodriguez who has had two miscarriages – there is a medical reason for doing so and the visa applicant has the funds to support herself for the stated purpose.
The birth-tourist or anchor-baby-mother (ABM) may be able to give birth in the US even if she does not have the funds to pay for giving birth in a hospital or medical care facility. Yes, Virginia, there are no unlicensed ”kumadrona” in the US.
The ABM can also avail of benefits provided to tourists by social workers who can facilitate the procedure in coordination with the Department of Health and Human Services (DHHS).
Availing of this benefit, however, also gives birth to a series of immigration violations that would render the anchor-baby mother inadmissible: the first is being a public charge, or using public funds that a tourist is not entitled to. The more serious violation could be fraud or misrepresentation if in the birth certificate of the baby, the anchor-baby mother’s status is reported either as a US citizen or lawful permanent resident.
While the US citizen child could sponsor or petition the biological mother when the child turns 21 years of age, the mother could still be refused the immigrant visa (if applying from outside the US) or is denied the application for adjustment of status if the mother managed to stay in the US and had avoided or evaded detection by the Immigration and Customs Enforcement (ICE) agents.
The biological mother may apply for forgiveness or waiver of inadmissibility, part of which is to reimburse the hospital or medical care center of the actual costs that the mother should have paid if she had been charged as a nonimmigrant not eligible for public funds or services.
Also, if the ABM had stayed in the US since giving birth (21 years at least) and had been undocumented during that entire period, she could also be refused the application to become a permanent resident (despite having a 21-year old US citizen son or daughter) for having overstayed. Again, a waiver may be applied for by right, but the decision to grant the waiver is discretionary.
Worst-case scenario: the mother could still be deported if she is charged with having committed willful misrepresentation Until the law is changed, current immigration laws preclude the parent from applying for a waiver for committing fraud.
Next week: Birth tourism in Canada.