Birth tourism ban
US IMMIGRATION NOTES - Atty. Marco F.G. Tomakin (The Freeman) - January 26, 2020 - 12:00am

Last January 24, 2020, the Trump administration imposed a new policy granting consular officials authority to deny a visitor visa (B1/B2) if they have reason to believe the applicant intends to travel to the US to give birth. This latest move by Trump is in response to the well-known practice known as “birth tourism” by pregnant foreign nationals who to come to the US to get American citizenship for their newborns. Under the 14th Amendment of the US Constitution, all persons born or naturalized in the US, and subject to the jurisdiction thereof, are US citizens. Once the “jus soli” principle automatically operates at the moment of the child’s birth, all rights, duties, protections, and privileges granted a US citizen is automatically accorded. Thus, as it applies to immigration law, the US citizen child, once he reaches the requisites as a petitioner will be able to file an I-130 for his foreign national parents.

Birth tourism is a lucrative business. There are reports that unscrupulous travel agencies recruit “rich pregnant Russian or Chinese women” who are charged as high as $60,000 to come to the US through Hawaii or Guam as entry points. The exorbitant fee includes board and lodging, medical care, food, hospitalization, and legal fees. A few weeks after giving birth, the mothers then leave the US, assured that at some future time their US citizen newborn will be able to petition them.

This fraudulent scheme caught the eye of Trump and his immigration policy makers. To them, these thousands of children born annually are just a drain on hospital resources and a burden to hardworking taxpayers.

This policy doesn’t apply to those who are nationals and citizens of countries under the Visa Waiver Program. It also empowers consular officers to require visa applicants who come to the US for medical care to show and prove that they have ability to pay for their medical care.

For me, this policy doesn’t automatically deny a pregnant woman a tourist visa. If she has other legitimate reasons to come to the US and she can satisfy the consular officer that she isn’t entering the US for the sole purpose of giving birth, then she may still be granted entry to the US.

* * *

And speaking about denial of a US visa, the latest furor about Sen. De la Rosa’s visa cancellation only emphasizes the power of the consular authorities to review, deny or cancel a visa without affording any opportunity for the applicant or visa holder to be heard. Take note that this authority is also discretionary and non-reviewable even by a US court!

However, if the presumption is true that the cancellation was due to the good senator’s prior acts leading to the prosecution of Sen. De Lima, upon which the US formally enshrined into law, then I believe the US has simply no reason to meddle in the affairs of another sovereign nation like the Philippines.

On the other hand, it also illustrates how fragile the US-Philippine relations have become in recent times. Just because a senator’s visa was cancelled, which is not even a right to begin with, a long-standing treaty that involves national safety and security is now about to be withdrawn. While it is well within the right of the Philippines to withdraw from the treaty, and it may have other valid reasons to do so, the timing of the withdrawal immediately after the visa controversy, appears to be petty, if not outright vindictive.

mtomakin@gmail.com

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