The Politics of Immigration (2nd Edition). David Wilson
until 1870 only white immigrants were eligible to naturalize as citizens. The situation was more complicated for free native-born people of color: in most states they had limited citizenship, without the right to vote; at the time of the Civil War free men of African descent could vote in only six of the thirty-four existing states. Some Native Americans, but not all, were recognized as citizens in treaties with the federal government. In 1848 the Treaty of Guadalupe Hidalgo mandated U.S. citizenship for all Mexicans living in the southwestern territories taken from Mexico in the Mexican-American War.54
With the 1857 Dred Scott decision the Supreme Court ruled that birthright citizenship only applied to white people. The Fourteenth Amendment, ratified in 1868, specifically redressed this injustice by restoring birthright citizenship without reference to race or ethnicity. The Supreme Court upheld the principle in 1898 in the case of the Chinese-American citizen Wong Kim Ark.55
Conservative legislators like Sen. Graham and former Arizona state senator Russell Pearce have proposed amending the Constitution or finding some way to circumvent the Fourteenth Amendment so that children born in the United States to out-of-status immigrants would not be U.S. citizens.56
Revoking birthright citizenship might leave many children born here stateless, since their parents’ countries may not automatically grant citizenship to children of their citizens.
This could violate international standards. The Dominican Republic’s government, for example, eliminated birthright citizenship in 2010, a move motivated by racial animosity toward Dominicans of Haitian descent. The United Nations High Commissioner for Refugees (UNHCR) charged in December 2013 that this effort had created a “human rights problem,” and the Inter-American Commission on Human Rights (IACHR) suggested that it had caused “grave violations of the right to nationality, to identity, and to equal protection without discrimination.”57
If we ended birthright citizenship, what status would the U.S.-born children of undocumented immigrants have? Would they also be undocumented? In that case, ending birthright citizenship would increase the number of undocumented people in the country; the undocumented population would be at least 44 percent larger by 2050, according to a projection by the nonprofit Migration Policy Institute project.58 In other words, revoking the country’s long tradition of granting citizenship to everyone born here would expand and make permanent an underclass of vulnerable, easily exploited people without full rights—very much like the U.S. South under Jim Crow laws or South Africa under apartheid.
Can’t immigrants apply to become U.S. citizens?
A total of 7,259,530 immigrants were naturalized as U.S. citizens from 2005 through 2014, an average of nearly three-quarters of a million each year.59 But like most processes for immigrants, this one is far from simple. People who want citizenship must first become permanent residents, then wait five years before they can apply to be naturalized. (If you are married to a U.S. citizen, you can apply for citizenship three years after getting your green card; U.S. soldiers on active duty can take advantage of a more accelerated schedule.)
Some permanent residents hesitate to go through the naturalization process because it is expensive (at the end of 2016 the filing fee was $640) or too much of a bureaucratic hassle.60 Others don’t apply because their home country doesn’t allow dual citizenship, and they may lose certain rights there by becoming U.S. citizens. Some permanent legal residents are barred from gaining citizenship because of prior criminal convictions.
For those who do seek citizenship, the process is not always straightforward. If your residency status was based on marriage to a U.S. citizen, immigration agents may raise questions about your marriage. If you travel outside the United States for more than a few months each year, your application can be denied (and the government may even try to take your green card away). Any past arrests will resurface through fingerprint record checks, and may get you deported.
Even if your record is clean, you may be confused with someone with a similar name and prior arrests. In one such case, a longtime permanent resident from Peru who had never received so much as a parking ticket was denied citizenship based on crimes committed by someone with the same first and last name and the same birth date, even though the person who committed the crimes was a foot taller, had a different middle name, and was a U.S.-born citizen with no reason to apply for naturalization. While such confusions would be easy to clear up quickly through fingerprint comparisons, immigration officials refused to fix the mistake and grant citizenship until they were sued in federal court.61
Citizenship applicants also face unexplained delays. California resident Mustafa Aziz, a military veteran who was only a year old when he and his family escaped war-torn Afghanistan and moved to the United States, applied for citizenship while on military duty in 2003. The government left Aziz waiting while it allegedly carried out a type of background check known as a “name check.” “Despite serving in the U.S. Air Force, I have been waiting for my citizenship for more than two years,” Aziz charged in August 2006. With the name check still dragging on and no end in sight, Aziz and nine others in similar situations sued the government with help from the American Civil Liberties Union (ACLU) of Southern California, the ACLU Immigrants’ Rights Project, and the Council on American-Islamic Relations (CAIR); the goal was to get the immigration service to start following set deadlines on its name checks. In October 2006, two months after the suit was filed, the government announced it would finally grant citizenship to Aziz and six of the other plaintiffs.62
The problems continued, however. In 2013, the ACLU of Southern California reported that a covert U.S. Citizenship and Immigration Services (USCIS) program had since 2008 indefinitely delayed or rejected without cause the citizenship or residency applications of numerous Muslim, Middle Eastern, and South Asian immigrants. Those affected received no explanations for why their applications were singled out for delay or denial.63
5. Is It Easy to Be “Illegal”?
LIVING IN THE UNITED STATES WITHOUT valid immigration status was never easy, but it has become extremely difficult over the past two decades as politicians have enacted a multitude of anti-immigrant laws at the federal, state, and local level. Fear of being apprehended and deported limits opportunities and causes stress and anxiety that can have a negative impact on the physical and mental health of undocumented immigrants and their children.1 Such fear, which intensifies anytime raids take place, also makes undocumented immigrants more vulnerable to labor exploitation and more likely to be victims of crime, and poses serious challenges to integration. Still, out-of-status immigrants can and do push back against this climate of fear by organizing to defend their rights and demand change.
What’s it like to live here “illegally”?
Immigrants who lack documents may have trouble finding a place to live, opening a bank account, applying for jobs, registering for school, or getting medical treatment. In most states, laws block “out-of-status” immigrants from seeking driver’s licenses. People without legal status often try to avoid traveling, since buses, trains, and even private cars may be stopped by officers checking immigration documents.
Such restrictions force many out-of-status immigrants into situations that are sometimes risky (such as keeping their savings in cash, and avoiding hospitals) or illegal (driving without a license). As they become more vulnerable, out-of-status immigrants are more likely to be exploited by unscrupulous employers, landlords, immigration law “consultants,” and others who try to take advantage of them, knowing they will be hesitant to report abuses.
Even some immigrants with “permanent” legal residence are now at risk because a past arrest or conviction makes them eligible for deportation under retroactive laws passed in 1996. They too may be trapped, unable to travel, and living with the daily fear of being detained and deported.2
Undocumented immigrants are often separated from family members for years, even decades. Tightened border enforcement means they can no longer visit relatives or friends back home without risking everything they have built here—and sometimes