Week 16: Birth tourism and medical travel targeted

Immigration news, in context.

This is the sixteenth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

This week’s edition:

  • In The Big Picture, we explain the Trump administration’s new rule forbidding visas for birth tourism and limiting medical travel.

  • In Under the Radar, we discuss ICE’s new, lowered detention standards and reports that the Trump administration is expanding its travel ban.

  • In Next Destination, we examine acting ICE Director Matt Albence’s recent comments about the administration’s plan to deport DACA recipients and what they could mean following the Supreme Court’s decision on the program.

The Big Picture

The news: The administration has issued a new rule modifying federal regulations and the State Department’s Foreign Affairs Manual (FAM) to specifically state that having a child in the U.S. for citizenship purposes is not a valid reason for a tourist visa, and setting limits on travel to the country for medical purposes.

What’s happening?

The Immigration and Nationality Act created classes of what are known as “nonimmigrants,” or foreigners who are admitted to the U.S. for specific purposes and timeframes, with strict limitations on what they can do in the country and a requirement to overcome the presumption that they intend to settle in the U.S. When you hear about someone “overstaying their visa,” this is in reference to someone on a nonimmigrant visa who violated its terms to remain in the country after their supposed departure date.

The nonimmigrant categories are defined in 8 U.S.C. § 1101(a)(15), running alphabetically from A to V. Some encompass large groups of people in statuses that you may have already heard of: F type visas for students, H type visas for temporary workers (as in H-1B). Others are very limited categories with few people, like the D type visa for crewmen of ships and aircraft. However, the largest nonimmigrant visa category by far is the B, which can be issued to “an alien… having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.” According to State Department data, B type visas have made up 75-80 percent of the 9-10 million total nonimmigrant visas issued between fiscal years 2014 and 2018.

The law itself doesn’t define what a visit “for pleasure” means, so it’s defined in regulation, namely 22 C.F.R. § 41.31, which states that a it encompasses “legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.” Consular officers abroad then apply these provisions during visa interviews, which they have extremely wide latitude to do as they see fit. The new rule does amends this particular regulation by adding three provisions.

Two of the provisions relate to birth tourism, with one stating that pleasure “does not include travel for the primary purpose of obtaining United States citizenship for a child by giving birth in the United States.” The other “establishes a rebuttable presumption that any B… applicant who a consular officer has reason to believe will give birth during her stay in the United States is traveling for the primary purpose of obtaining U.S. citizenship for a child.” 

In practice, this means that if a consular officer believes an applicant would give birth during a visit, this will be considered the primary purpose of their trip. Thus, their application is not valid unless they can actively prove that they have an alternate reason to travel. For example, the rule itself notes that if someone was traveling to “visit her dying mother, and that during the visit she may give birth in the United States because her due date overlapped with her mother’s last expected months of life, she could rebut the presumption.”

The last provision of the rule deals with medical travel, requiring all applicants for B visas who intend to receive treatment in the U.S. to establish a legitimate reason for wanting to do so, provide information about “a medical practitioner or facility in the United States has agreed to provide treatment,” and establish that “he or she has reasonably estimated the duration of the visit and has the means, derived from lawful sources, and intent to pay for the medical treatment and all incidental expenses.” The rule links birth tourism and medical travel by referencing cases in which expecting mothers travel to the U.S. to give birth in a particular medical facility. Under the new guidelines, they could still do this if specialized medical care was necessary or the U.S. was geographically the most practicable solution to access adequate medical birth care, but not if they were doing so just to obtain citizenship for the child.

How we got here

Birth tourism is a real thing. In 2017, the Daily Beast reported that several companies catering to Russian birth tourists were advertising apartment listings in Trump’s south Florida properties. According to the Daily Beast’s report, packages advertised to Russian birth tourists hoping to give birth in Miami start out at $75,000. For those with less money to spend, a 3-month stay in Miami costs around $20,000, including medical bills. 

In other words, birth tourism isn’t cheap — and it’s not the kind of thing your average person can afford to do. It’s unclear how many children are born to foreign nationals who come to the U.S. solely to give birth, but the costs alone suggest birth tourism isn’t nearly as prevalent as this regulation makes it out to be. The rule states that an estimated “thousands of children” are born to B visa holders each year, which is very vague and does not separate out birth tourism cases versus those that merely happened to occur.

As Sarah Pierce, an analyst at the Migration Policy Institute, told BuzzFeed News, the new rule is “mostly symbolic and another way to say the U.S. is closed.”

Even if the rule doesn’t actually limit birth tourism — which it’s unlikely to do — the Trump administration is sending a clear message that it questions the motivations of non-citizens who give birth in the U.S. As the rule states, naturalized citizens “must establish attachment to the principles of the Constitution of the United States and favorable disposition toward the ‘good order and happiness’ of the United States.” Children born to birth-tourist parents don’t have to be naturalized because they were born in the U.S. — in the Trump administration’s eyes, these children have undeservingly skirted the “extensive requirements applicants must meet to naturalize to become U.S. citizens.”

More broadly, the rule can also be interpreted as an attack on the concept of birthright citizenship altogether. Though the Trump administration isn’t seeking to eliminate birthright citizenship through statute — which it wouldn’t be able to do, since birthright citizenship is enshrined in the Constitution — the rule makes it clear that the administration believes that foreigners are taking advantage of birthright citizenship.

The 14th Amendment, which grants citizenship to “all persons born or naturalized in the United States and subject to the jurisdiction thereof,” was ratified in 1868 in order to naturalize all formerly enslaved people in the wake of the Civil War. Though the text of the amendment is relatively clear, birthright citizenship has had a contested history in the U.S. since then. 

In 1884, the Supreme Court ruled that Native Americans born on reservations weren’t automatically U.S. citizens, for example. After Congress passed the Chinese Exclusion Act in 1882, the status of Chinese-American children born in the U.S. to non-citizen parents was also called into question, and several of these cases were litigated by the courts. The most famous of these cases is U.S. v. Wong Kim Ark, which eventually made its way to the Supreme Court. The case involved a California-born Chinese-American who was denied entry to the U.S. after visiting China in 1895. The government argued that Wong wasn’t a U.S. citizen despite having been born in the United States, because his parents were not eligible for citizenship and therefore not subject to the jurisdiction of the United States. The court ultimately ruled in Wong’s favor.

More recently, ending birthright citizenship has long been a goal of nativist groups like the Federation for American Immigration Reform and the Center for Immigration Studies, both of which now have allies in the White House. (Stephen Miller is one of several CIS alumni who now works for the Trump administration.) Last August, Trump called the concept of birthright citizenship “frankly ridiculous” and said he was “looking very, very seriously” at ending it. Again, the president can’t just end birthright citizenship — doing so would require a Constitutional amendment. But if it were to happen, which is unlikely, the Migration Policy Institute estimates that the percentage of undocumented children in the U.S. would double from 2 to 4 percent of the U.S. population by 2050. 

What’s next?

The rule was published today as a final rule, meaning it is in effect as soon as it is published. As a regulation dealing largely with foreign affairs, it is exempt from requirements for public notice and comment. Importantly, it’s a State Department regulation and does not impact Homeland Security operations, meaning that once a visa is issued, these considerations won’t come into play with, for example, CBP officers at borders (for now). It also means that, for nationals of the 39 mostly European countries that make up the Visa Waiver program — meaning they do not require a B visa for short-term visits to the U.S. — it does not apply at all. Expecting mothers with, say, German, British, Australian, or Singaporean citizenship remain free to travel to the U.S. for birth tourism purposes.

One area where things get murky is on the question of putting it into practice. According to draft guidance to be published in the Foreign Affairs Manual (FAM) — the guidebook for consular officers — and obtained by Buzzfeed News, officials should not ask applicants about whether they’re pregnant or intending to be, or require any evidence about pregnancy status. As some have mentioned, B type visas can have validity periods of up to ten years, so it’s also entirely possible that applicants may not initially obtain them while intending to give birth in the U.S., but use them later for that purpose. The mechanism appears to rely entirely on applicants affirmatively stating that they intend to give birth in the U.S., which seems to conflict with the administration’s stated purposes of why it needed such a rule in the first place.

The rule goes heavy on the supposed national security and criminal risks of birth tourism, stating that it was closing a “national security vulnerability that could allow foreign governments or entities to recruit or groom U.S. citizens who were born as the result of birth tourism and raised overseas, without attachment to the United States, in manners that threaten the security of the United States.” (We can find no immediate evidence that this has ever happened.) It also calls birth tourism “a source of fraud and other criminal activity, including international criminal schemes,” and references a recent federal case against travel agents who were running a birth tourism business targeting China. It does not mention that this was the first and only federal birth tourism case ever brought.

The problem with this is that, as the rule itself admits, some people misrepresent the reason they’re traveling, and presumably anyone hoping to give birth to U.S. citizens for espionage or terrorism purposes, or as part of an international criminal scheme, would not be upfront about it. It’s not clear, then, what exactly this new regulation would accomplish, except perhaps allowing people who give birth in the U.S. on B type visas to have the status stripped and be deported if the government felt they obscured their intentions. It will probably mostly lead to a whole lot of hostile questioning of young women seeking these visas.

The area of greatest impact may actually be the medical language. While the rule specifically mentions medical birth travel, the language applies to everyone seeking a B visa for medical purposes, not just expectant mothers. This will almost certainly create a higher burden for the thousands of people who travel to the U.S. each year to be treated for cancer, have surgeries, and engage in other medical procedures.

Prior to the rule, consular officers were still fully able to reject applicants who did not seem to have a clear medical plan or the financial means to support themselves and their treatment during their stay. Nonetheless, the addition of this specific language will likely lead to more rejections on the grounds that a medical applicant cannot fully and absolutely provide evidence of their entire treatment scheme and funds to cover its substantial costs on hand. Everything needs to be proved “to the satisfaction of the consular officer,” which essentially gives individual officers veto power over cancer patients’ medical travel plans if they have so much as a hunch that their treatment plan will, for example, last longer than they’ve stated.

It’s not obvious that the already stretched civil liberties and pro-immigration groups will add this rule to their ever-growing roster of litigation against the administration. If they did choose to sue, they would probably target the medical provisions rather than the birth tourism ones.

Under the Radar

ICE lowers its detention standards

ICE made a long list of changes to its National Detention Standards in mid-December. The changes, first reported by the Texas Observer, amount to a reduction in standards for roughly 140 facilities across the country that detain immigrants for ICE, including local jails and privately operated prisons. 

Under the new standards, officers are no longer prohibited from using “hog-tying, fetal restraints, [and] tight restraints,” and higher-ups no longer have to be notified when detainees are held in administrative segregation — the term for solitary confinement — for more than 60 days.

As the Observer notes, there is no universal set of standards for immigrant detention facilities, and the National Detention Standards don’t apply to all ICE detention centers — some facilities are instead held to the more rigorous Performance-Based National Detention Standards. But the newly weakened NDS will make it easier for local jails and prisons, in which local governments are paid to hold immigrant detainees alongside people with criminal charges, to pass inspections.

The Trump administration may expand the travel ban

The number of countries whose citizens are prohibited from traveling to the U.S. may soon double. Politico reports that the Trump administration is considering adding several countries — including Belarus, Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania — to its travel ban. Per Politico’s report, the list is still not final and the regulations may not be as strict as those applied to other countries. Instead of outright refusing to issue visas to most nationals of those countries, the Trump administration is considering restricting entry for some types of travelers, like government officials and people with certain kinds of visas.

In addition to expanding the amount of countries whose citizens face restrictions on their travel to the U.S., the expanded travel ban signals a change of the types of countries affected. The initial iteration of the Travel ban, issued via executive order during Trump’s first week in office, affected Muslim-majority countries. Though that ban was eventually struck down by the courts, the version of the ban currently in place affects nationals of Iran, Libya, Somalia, Syria, and Yemen. North Korea and Venezuela were also added to the list. But as Politico notes, some of the countries being considered, like Nigeria, have close diplomatic relationships with the U.S. that are now at risk of being strained.

Trump confirmed Politico’s report to reporters at the World Economic Forum in Davos, though he didn’t specify which countries would be on the list. “We’re adding a couple of countries to it. We have to be safe,” Trump said, according to the Guardian. “You see what’s going on in the world. Our country has to be safe.”

As for when the ban will go into effect, Trump said: “It’s going to be announced very shortly, OK?”

Next Destination

Albence confirms DACA recipients are being targeted in case favorable SCOTUS decision reached

In comments made in DC yesterday, Acting ICE Director Matt Albence confirmed reporting that ICE was reopening removal cases against current beneficiaries of the DACA program in anticipation of a Supreme Court ruling that would allow the program to be terminated. At this time, SCOTUS is weighing the questions of whether it has the ability to review the Trump administration’s decision to end the program and, if so, whether such a termination was proper. If the court either declines to review the decision or reviews it and finds that it was proper, the program for immigrants brought illegally to the country as children will be wound down and the roughly 700,000 people currently protected by it would lose their work permits and be newly open to deportation.

A particular concern with this population is that, to participate in DACA in the first place, applicants had to turn over troves of personal information to the federal government that could easily be used to find and deport them if the program was terminated. With the Trump administration’s announcement that DACA would end, many feared that this was exactly what would occur. Nevertheless, there was the possibility that the government wouldn’t go after them, or show some leniency, especially given Trump’s own intermittently positive comments about DACA recipients. Albence has now dashed these hopes, saying that they will seek removal orders and “if they get ordered removed, and DACA is done away with by the Supreme Court, we can actually effectuate those removal orders.”

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