Connect with us

Un

John Eastman on Birthright Citizenship, Kamala Harris, the Mexican Repatriation, and Citizenship for the Children of Braceros

Published

on

Earlier this week, Chapman University law professor John Eastman used the announcement that Kamala Harris is Joe Biden’s pick to be Vice President to explain his unorthodox view of the citizenship clause of the 14th Amendment. Is Kamala Harris eligible for the office of Vice President? Here’s my article, published by Newsweek, exploring the issues.,

Earlier this week, Chapman University law professor John Eastman used the announcement that Kamala Harris is Joe Biden’s pick to be Vice President to explain his unorthodox view of the citizenship clause of the 14th Amendment.

Is Kamala Harris eligible for the office of Vice President? Here’s my article, published by Newsweek, exploring the issues. Short answer: It depends! https://t.co/A2K08EBUYu

— John Eastman (@DrJohnEastman) August 12, 2020

Eastman, who’s frequently the only constitutional lawyer on any panel or symposium who believes that birthright citizenship isn’t guaranteed by the 14th Amendment, used his reasoning to argue that Harris is not a natural‐​born citizen and therefore ineligible to be Vice President because she is ineligible to be President.

This is because, according to Eastman’s theory, Harris’ parents were non‐​citizens when she was born on U.S. soil and not subject to the jurisdiction of the U.S. government. Funny enough, Eastman believes that Ted Cruz is a natural‐​born citizen while Harris is not, but this is actually perfectly consistent with his odd interpretation of the 14th Amendment. So, while it is tempting to poke fun at his seeming partisanship on the Cruz vs. Harris question of natural‐​born citizenship, we must give him the benefit of the doubt on that point.

But that doesn’t mean that Eastman is correct on the broader point. Rather than delve into the legal weeds on this issue, which many others have done, I’ll focus instead on some erroneous statements that Eastman makes about American history.

In his opinion piece, Eastman states that the children of Mexican immigrants born on U.S. soil who were deported during the Mexican Repatriation on the 1920s and 1930s weren’t considered citizens by the government. Eastman wrote:

The children born on U.S. soil to guest workers from Mexico during the Roaring 1920s were not viewed as citizens, for example, when, in the wake of the Great Depression, their families were repatriated to Mexico.

Eastman is incorrect, the government did consider those born to non‐​citizens on U.S. soil to be American citizens. His story about the deportations of Mexicans and American citizens of Mexican descent doesn’t support his point. First, children born in the United States who are minors can follow their parents as they are deported even today. Many today end up staying in the United States with guardians, other relatives, or in the foster care system, but some also leave. Thus, removing or allowing U.S.-born minors to leave with their foreign‐​born parents who are deported doesn’t mean that the U.S. government doesn’t consider the minors to be U.S. citizens.

Second, many of the U.S.-born children of Mexican immigrants who were deported with their families eventually returned because they were American citizens. For instance, Jose Lopez was born to Mexican parents in Detroit in 1926. He was deported to Michoacán, Mexico in 1931 along with his family. As a five‐​year‐​old, there were few alternatives for him to stay and his parents didn’t want to be separated from their young son. Lopez eventually returned to the land of his birth (the United States) in 1945 as he could prove that he was a citizen, but others were not so lucky. Clearly, the U.S. government considered him to be a U.S. citizen then because he was born here.

Third, the term “repatriation” could be fairly applied to the Mexican‐​born immigrants who were being deported to their homeland, but it was surely inapplicable to the approximately half of all deportees who were American citizens by birth. “Mexican Repatriation” is a term commonly used to describe that mass deportation, but it is a phrase that assumes the restrictionist conclusion that all of them were foreign‐​born or non‐​citizens – which is incorrect because about 60 percent were U.S. citizens with most being born here.

Eastman also wrote that the children born to Mexican guest workers under the Bracero guest worker visa program were not considered citizens:

Nor were the children born on U.S. soil to guest workers in the bracero program of the 1950s and early 1960s deemed citizens when that program ended, and their families emigrated back to their home countries.

As far as I can tell from scanning an archive of testimonies by Bracero workers and their families, this isn’t true either. There weren’t many children born on U.S.-soil to Bracero workers because they were supposed to be all men, but children born to illegal immigrants who worked alongside Braceros were citizens, so it stands to reason that so were the few children whose parents were Braceros. Perhaps some U.S.-born children of Braceros were denied citizenship or had trouble proving that they were born in the United States, but I haven’t come across any systematic evidence that the U.S. government did not consider them citizens at the time. I would love to see evidence to the contrary, but I doubt it exists.

Constitutional scholars have been arguing about Eastman’s unorthodox constitutional theories for quite a while and he’s not changing many minds. Interestingly enough, his historical examples do not prove what he thinks they prove. Whether the standard interpretation of the 14th Amendment is correct or not, the U.S. government has been acting like those born on U.S. soil who aren’t the children of diplomats are U.S. citizens.

Source: John Eastman on Birthright Citizenship, Kamala Harris, the Mexican Repatriation, and Citizenship for the Children of Braceros

Alex Nowrasteh

,

0 Shares
Continue Reading

BREAKING

PERM Recruitment Advertising

Published

on

By

IMMIGRATION ADVERTISING

PERM Recruitment Advertising made easy, just contact PERM Ads at https://PERM-Ads.com

Continue Reading

Un

Richard B. Alman, Founder, Recruiter Media: How a serial entrepreneur is digitizing PERM ads

Published

on

By

How a serial entrepreneur is digitizing PERM ads

Continue Reading

Un

The Green Card Process Through the Lens of a DMV Visit

Published

on

By

As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere,

As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere sequence of form filings likens the process to a visit to a Department of Motor Vehicles (DMV) office.

In my practice area of business immigration law, green card processes are mostly employment-based and involve the successive filing of a labor certification application, immigrant petition, and adjustment of status application (with the first not always required and the latter two sometimes eligible for concurrent filing). So I’ll refer to these types of filings in describing the analogy here.  But variations of the analogy may be equally applicable to other types of green card processes, such as those in which the aspiring permanent resident will apply for an immigrant visa overseas rather than adjustment of status within the United States, as well as those based on family relationships and those available to asylees and refugees.

The trappings of a visit to the DMV, no matter the state, may be familiar to you: the issuance of a waiting number determining your place in a queue, followed by a long wait for your number to be called at one of several counters to file required paperwork, followed yet again by a lengthy wait for your paperwork to be processed, and eventually – hopefully – approved without issue.  The counter at which you’ll be called, and the length of the corresponding queue (or maybe in some fortunate instances, the absence of one altogether), often depends on specific factors, such as the type of service you’re seeking.

Just as you’re issued a waiting number upon entry into a DMV office, aspiring permanent residents are issued a priority date when the first major filing in their green card process (either the labor certification application or immigrant petition) is submitted.  The priority date is the date this first filing is submitted and determines, once the immigrant petition is approved, the aspiring permanent resident’s place in any existing queue to apply for adjustment of status.

Similar to how you wait at the DMV for your number to be called to file your paperwork at the appropriate counter, aspiring permanent residents face varying wait times for their priority date to be “called” at a designated “counter” to apply for adjustment of status.  The “counter” in the green card process at which aspiring permanent residents must apply for adjustment of status is based on a combination of two main factors: their immigrant classification (which, when speaking with clients, I refer to as their “green card category”) and their country of chargeability (which I refer to as their country of birth).  Aside from some significant exceptions outside of the employment-based green card process,[1] the law limits the supply of green cards available each fiscal year.  Because the law allocates this limited supply based on a combination of both immigrant classification and country of chargeability, queues form at “counters” where the demand for green cards exceeds the available supply.  And the more severely demand exceeds supply, the longer the queue will be. This analogy helps to show why EB-2 and EB-3 immigrants born in India and China are often confronted with waits lasting many years for their priority date to be “called” at their designated counters,[2] while EB-2 and EB-3 immigrants born in most other countries often face no such queue.  In technical terms, the existence of a queue at a given “counter” means the availability of green cards associated with that counter’s classification and chargeability combination is “retrogressed.”  If there’s no queue, green card availability at that counter is “current.”

A visit to the DMV often entails a wait of several hours sitting and keeping watch of your designated counter at it serves the visitors who arrived before you until your own number is finally called.  Likewise, many aspiring permanent residents monitor the often plodding, month-to-month movement of “cut-off dates” in the Bureau of Consular Affairs’ monthly Visa Bulletins for the designated “counter” at which they must apply for adjustment of status.[3]  The Visa Bulletin for a given month contains various charts showing whether a queue for filing an adjustment of status application exists for any classification and chargeability combination, and if so, how long the queue is.  Combinations for which there is no queue are assigned a “C” notation, indicating that green card availability is current and that the adjustment of status application can thus be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming any prerequisite labor certification has been granted. Combinations for which there is a queue, and for which green card availability is thus retrogressed, are denoted by a “cut-off date,” with older dates reflecting longer queues.  Aspiring permanent residents seeking to adjust status at a “counter” at which green card availability is retrogressed can track their place in the queue by comparing their priority date with the applicable cut-off date each month.  Priority dates that fall before the applicable cut-off date in a given month are those that have been “called,” indicating that much like counters at which green card availability is current, an adjustment of status application can be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming again that any prerequisite labor certification has been granted.

Like processing of paperwork filed at a counter at the DMV, processing of an adjustment of status application may take a long time.  But eventually – hopefully – the application is approved without issue.  And unlike a visit to the DMV, having qualified counsel during the green card process can make all the difference in one’s chance of success.

[1] For example, “immediate relatives” (spouses and children of US citizens, and parents of US citizens if the citizen is at least 21 years old) are exempt from annual numerical limits on green card availability. INA 201(b)(2)(A)(i).
[2] Aspiring permanent residents for whom the queue for applying for adjustment of status involves a wait of several years, such as EB-2 and EB-3 immigrants born in India and China, commonly change jobs or employers in the course of their wait. Such a change can require a restart of the green card process since employment-based green card processes are generally job and employer specific.  But to allow aspiring permanents residents who change jobs or employers to keep their place in queue, the law permits them to retain their priority date under certain conditions if they are the beneficiary of a previously approved EB-1, EB-2, or EB-3 immigrant petition, and likewise become the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant petition based on their new job or employer. 8 CFR 204.5(e). 
[3] US Citizenship and Immigration Service also publishes monthly updates indicating whether to use the Visa Bulletin’s Dates for Filing charts or its Final Action Dates charts, to determine whether an adjustment of status application may be filed.

Source: The Green Card Process Through the Lens of a DMV Visit

,

Continue Reading

PERM Recruitment Advertising

PA-250-300

Immigration Links

Advertisement

Trending

Copyright © 2020 IMMIGRATION REFORM NEWS