'Mixed status' Tears Apart Families

By Rich Pedroncelli, AP
 
Deportation split Julie Santos' family in 2001, forcing her husband, an illegal immigrant, to return to Mexico while she and their two U.S.-born children remained in her hometown of Chicago.

George Santos had worked and paid taxes in the USA for 15 years but is barred from ever returning because he used false identity papers to claim he was a U.S. citizen.
"He has said, 'Continue with your life and forget about me,' but I can't," says Julie Santos, 40, a real estate agent and secretary of the Latino Family Unity Campaign. She calls often and, whenever possible, visits him in Mexico with their 10-year-old son and 8-year-old daughter.

About 2 million families nationwide face a similarly gut-wrenching risk of deportation because the children are U.S.-born citizens but at least one parent is an illegal immigrant, according to the Pew Hispanic Center. If deported, the parent must decide whether to leave the kids with relatives in the USA or take them along.

Many "mixed status" families are created because the 14th Amendment to the U.S. Constitution grants automatic citizenship to all children born in the country except those of foreign diplomats.

"It's a nearly absolute birthright citizen, and in that way, it's unusual. But it's not exceptional," says Peter Spiro, international law professor at the University of Georgia School of Law.

He says most countries have tighter limits on citizenship, but several Western Hemisphere countries, including Canada, Mexico, Brazil and Argentina, also grant it to all children born on their land. He says other countries are adopting broader U.S.-style language.

As Congress returns from a two-week recess and again wrestles with the thorny issue of immigration reform, some House Republicans have proposed limiting birthright citizenship.

Rep. Nathan Deal, R-Ga., and 83 GOP co-sponsors are pushing a bill that would restrict automatic citizenship at birth to children of U.S. citizens and legal residents. He says he doesn't expect the measure to be included in any broader reform package this year but hopes it generates debate.

Mixed-status families pose "a huge problem," says Ira Mehlman of the Federation for American Immigration Reform, which backs Deal's bill. They "complicate an already complicated issue."

At least 3.1 million U.S.-born children live in families headed by an illegal resident, the Pew Hispanic Center estimates. They account for two-thirds of all children of illegal immigrants.

Deal argues that birthright citizenship is a magnet for many illegal immigrants who use so-called "anchor babies" to establish a U.S. foothold. These U.S.-born children are eligible for government services, and at 21, can petition for their parents' residency.

Deal says the 14th Amendment was not intended to include these children.
Historians say the Amendment was ratified in 1868 to ensure the citizenship of freed slaves. "There's no question" that it would have excluded children of illegal immigrants had there been many illegal workers at the time, says Peter Schuck, professor at Yale Law School and author of Citizens, Strangers and In-Betweens.
The amendment has been misinterpreted for more than a century, says John Eastman, director of the Center for Constitutional Jurisprudence at the Claremont Institute. He argues that its authors, in granting citizenship to "all persons born or naturalized in the United States," meant only those not owing allegiance to a foreign power, not simply those born on its soil.

Whatever its intent, birthright citizenship has been widely accepted as applying to all children born in the USA.

"There are good arguments" for and against this citizenship, says Schuck. He says some illegal immigrants may take advantage of it, but "it does not lead to a multigenerational, long-term population of people who are not citizens."

Schuck says Germany has had big problems because it has many immigrants, particularly from Turkey, living their entire lives there who weren't voting citizens and felt alienated. As a result, he says, Germany and France have broadened their citizenship laws to include more immigrants.

Spiro says children of illegal immigrants will likely spend their entire lives in the USA. By depriving them of citizenship, he says, "you'd have a significant portion of the population being legally subordinated on an inter-generational basis."

Rep. Howard Berman, D-Calif., member of the House Judiciary Committee, says Deal's bill would create more illegal residents. "It's unconstitutional. It creates a larger underclass, and it's unenforceable," he says. "It does nothing to secure our borders." For decades, the undocumented parents in "mixed status" families have been deported. Some, citing the plight of their U.S.-born kids, have been spared.
Immigration judges decide whether a parent qualifies for a waiver on a "case by base basis," says Ernestine Fobbs, spokeswoman for U.S. Immigration and Customs Enforcement. In fiscal 2005, she says more than 162,000 people were deported from the USA, but it's unclear how many had U.S.-born children or spouses.

Waivers are "much less frequent than in the past," says John Trasvina, interim president and general counsel of the Mexican American Legal Defense and Educational Fund. He says Congress has tightened the criteria since 1996, giving judges less discretion to stay a deportation.

Currently, deportation can be suspended for illegal immigrants only if they have lived in the USA longer than 10 years, have no criminal record and can prove their removal would cause "extremely unusual hardship" to a close relative with legal status.
Julie Santos says her husband, George, owned a home and worked full-time as a furniture refinisher in Chicago. She says he did not seek legal residency because he did not want to admit to his employer that he was in the country illegally.

They considered moving the family to Mexico, but economic conditions are too tough.
She tries to keep him connected to the family, but it's difficult.
"Now sometimes it feels I'm talking about a ghost," Julie Santos says.

There are 6.6 million families in the USA in which a head of household and/or spouse is an illegal immigrant. In some of these families, the children are U.S. citizens. Number of families with:
No children 3.9 million
Children are U.S. citizens 1.5 million
Children are not U.S. citizens 725,000
Some children are citizens, some are not 460,000
Sources: Pew Hispanic Center and U.S. Census Bureau