When Airman First Class Tia Freeman gave birth to a baby alone in an Istanbul hotel bathtub last year, it created an instant sensation on social media as well as in the regular press. Finding herself having unexpectedly early labor pains during a 17-hour layover in Turkey, the 22-year-old Air National Guard member had resourcefully Googled “how to deliver a baby” and proceeded to do so, using nothing but YouTube videos, a pocket knife, and some things in the hotel room.
She was pretty calm and collected telling the story the next day, too. One thing she definitely was not worrying about was her infant son’s citizenship. That might be different today.
Even though, by and large, most Americans giving birth overseas are not affected by the change that took effect last week, it has nonetheless gotten a lot of people worried and upset.
The August 28 policy alert announcing the change said that children born abroad to service members and other personnel would not be granted automatic citizenship in the same manner as previously. The document, called “Defining ‘Residence’ in Statutory Provisions Related to Citizenship,” was issued by the U.S. Citizenship and Immigration Services, an agency of the Department of Homeland Security.
The alert stated that the agency “no longer considers” children of federal workers or service members stationed outside the U.S. to be “ ‘residing in the United States’ for purposes of acquiring citizenship under INA 320.” This section of the Immigration and Nationality Act actually deals with children living in the U.S. Children born on American soil are citizens at birth. Anywhere else, and your citizenship is via your parents. That’s where complicated rules come in.
Acting director of USCIS Ken Cuccinelli described the document on Twitter as a “highly technical policy memo” used by career employees at the agency. Why then was it not handled that way? “This kind of memo is the sort of thing that you don’t put out to the general public without a very bold-faced letter executive summary saying ‘Here’s what this does not do,’ ” Bradley Moss, a lawyer with expertise in national security, told The Hill, a news service covering policy and national politics. Consequently, many parents and advocates made the inevitable deduction that children born to them on foreign posts would not be citizens.
The confusion and outrage were immediate. CNN noted that military and diplomatic groups “immediately denounced the alert, concerned that the rule change would place hurdles before children of federal employees and military workers serving abroad.” A Navy officer told the news agency that the guidance was injecting serious stress among military spouses. “You should go onto a spouse Facebook page and see the freakouts,” he said. Newsweek reported that by that evening, the hashtag #TrumpHatesMilitaryFamilies was trending “as news of the policy shift sent shock waves across the country.”
The actual change in policy primarily involved those military and civil service personnel who were either married to, or had a child with, a non-citizen, or had not resided in the United States for an extended time. As the title suggested, it dealt with definition of residency and physical presence. On page 7 of the original 11-page document, it became clear that the residency definition concerned “children born outside the United States who did not acquire U.S. citizenship at birth” – unlike, for example, little Xavier Freeman. It is likely many did not read that far.
“This changes nothing if you are a child born overseas to two U.S. citizens on a military base or just overseas in general – you are fine as a matter of law,” said national security attorney, Bradley Moss. “You are still considered a U.S. citizen so long as one of your parents had been a physical resident within the United States.” A clarification to this effect was issued later the same day.
The clarification took the edge off the situation, but did not bring calm. “The fact that those of us who deal with immigration law all the time can read this memo and immediately point out plausible scenarios leads me to believe it’s going to impact some number of people. Impacting one person is too many,” Martin Lester, chair of the American Immigration Lawyers Association’s Military Assistance Program, told CNN. The group provides pro bono immigration law services to U.S. service members. A Pentagon spokesperson told The Hill that “further information is available at the USCIS Military Resource Page” – but there is literally nothing there about it.
The policies surrounding childbirth overseas are actually somewhat complicated. While it is commonly believed that overseas military bases are considered U.S. territory, like embassies, they are not. So a child born on a base gains citizenship through its parents – which triggers and requires that certain factors be present, like whether the parents are married, and when and for how long they have lived in the U.S. If, for example, only the father is a citizen, he would need to have lived in the U.S. for at least five years, at least two of them after age 14. For married parents, if both are citizens, and one has always lived in the U.S., then – just as Bradley Moss said – you are fine as a matter of law. But many other permutations are possible.
“Living” is subject to definition, much like for purposes of voting, or running for office. You might own or rent a home somewhere but seldom – or never – spend any time there. This murkiness – the difference between “residence” and “physical” presence” – was in fact what the USCIS guidance actually addressed.
There are, of course, military families and federal employees who are potentially affected – those seeking to adopt, those with recent marriages to foreign nationals or lawful permanent residents, or with extended stays away from U.S. soil – perhaps even born overseas themselves. The many who are now trying to understand what their newborn’s status will be could also said to be affected.
There are other reasons why this story is disturbing.
The incident is of a piece with larger encroachment around birthright citizenship. While USCIS’ Cuccinelli tweeted that people were “freaking out over nothing,” and that this policy had nothing to do with birthright citizenship, he has vigorously promoted hardline immigration policies. He had recently announced a new rule – Inadmissibility on Public Charge Grounds, which was recently blocked by federal court injunctions – that would have denied green cards to immigrants likely to use public benefits. And he caused a furor by suggesting that the famous lines about “your tired, your poor, your huddled masses” and “the wretched refuse of your teeming shore” at the Statue of Liberty referred only to European immigrants. USCIS’ overseas birth policy was issued just days after president Trump had once again claimed that he could end constitutionally protected birthright citizenship by simply issuing an executive order.” (CNN embedded with their overseas birth story this explainer by their legal analyst Danny Cevallos of the “subject to the jurisdiction thereof” wording in the 14th Amendment that conservatives point to.)
The policy change has had a chilling effect that cannot be un-chilled. In this, it is much like some other recent announcements that have swelled the ranks of the worried. The move (now canceled) to put a citizenship question on the census made it likely that fewer will fill it out. The public charge rule (blocked by the courts, at least for now) discouraged many potential immigrants. The many votes in the House to repeal the Affordable Care Act (although never passed in the Senate) left many to believe they no longer had health insurance. Now, this public relations fiasco has doubtlessly left many serving our country still believing that citizenship for their children born abroad is threatened.
Handling of the alert showed a cold disrespect to those who serve. As the New York Times wrote, the move “infuriated many at the Pentagon and confused others in the military community, who said it called into question the administration’s appreciation of members of the armed services.” The progressive news site ShareBlue commented on “the stress and strain that this is causing military families” – and so did many individual commentators on Twitter. The unflattering hashtag aimed at the commander in chief has remained active, picking up other examples of under-appreciation as it snowballed along. The possible loss of veterans’ gravesites to the border wall, as well as funds for on-base schools and roads diverted to the project, got mentions. So did treatment of veterans and Gold Star families, and a former Marine whose wife was deported after a speeding ticket. “That’s going to be hard for Military Recruiters. Nothing like supporting our troops,” one commenter observed on a closed Facebook group for veterans.
In a post about veteran’s educational benefits this summer, we noted that the nation’s attorneys general were worried that certain federal departmental requirements “may prove insurmountable obstacles” for veterans with disabilities seeking to secure loan forgiveness. We hope that the confusing requirements and regulations around birth overseas do not create an impediment for military families and others who are serving their country in far-flung posts.
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