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Excerpted from: Ediberto Román and Ernesto Sagás, Birthright Citizenship under Attack: How Dominican Nationality Laws May Be the Future of U.S. Exclusion, 66 American University Law Review 1383 (August, 2017 ) (277 Footnotes) (Full Document)


Ediberto RománAttacks on birthright citizenship periodically emerge in the domestic political landscape. More often than not, conservative politicians blame immigrants for the country's problems. For instance, on January 27, 2011, U.S. Senators Rand Paul (R-KY) and David Vitter (R-LA) proposed a constitutional amendment that would grant automatic citizenship to U.S.-born children in only three situations: when one parent is a U.S. citizen, when one parent is a legal immigrant, or when one parent is an active member of the U.S. military. On the same day, Republican state legislators in Arizona introduced a law challenging U.S. citizenship for children born in the state when their parents are either undocumented migrants or another category of non-citizen. Congressional opponents to birthright citizenship at the very least seem to be persistent: despite failing in 2011, four years later Senator Vitter reintroduced a bill to end birthright citizenship.

Ernesto SagásBirthright citizenship is arguably the most important right: the right to have rights. It is a legal concept with textual roots in the U.S. Constitution's Fourteenth Amendment. Despite its importance, in recent times, it has come under consistent attack in recent presidential elections. In the 2008 election, for instance, several Republican presidential candidates expressed skepticism about whether the Constitution in fact grants birthright citizenship. Four years later, in 2012, several Republican candidates, continued expressing concern over birthright citizenship. The campaign leading up to the 2016 presidential elections did not break this pattern of attack. In fact, several of the Republican presidential candidates raised the issue, with Donald Trump making it the hallmark of his immigration reform platform. Trump promised that, if elected, his administration would “end birthright citizenship.” In an election characterized by widespread anger stemming from the party's base, other Republican candidates shortly thereafter jumped onto the anti-immigrant bandwagon. In spite of the heated rhetoric, most of these candidates see repealing, or clarifying, the Fourteenth Amendment as an endeavor that will affect the children of undocumented immigrants in the future. Others, like Trump, take it a step further by broadly arguing that, for those children of undocumented immigrants, U.S. birthright citizenship can be effectively challenged in court, potentially stripping them of their U.S. citizenship. Yet Trump's campaign promise--ending birthright citizenship--would require legal strategies that are unlikely to stand in court and a significant shift in U.S. public opinion.

After his surprising win, President Trump appointed individuals with similar anti-immigrant and anti-birthright citizenship sentiments. For instance, the Trump administration appointed Julie Kirchner to serve as ombudsperson to the U.S. Citizenship and Immigration Service (USCIS). The troubling aspect of this appointment is that she was the former executive director of the Federation of American Immigration Reform (FAIR), a group some characterize as a hate group, known for its anti-immigrant and anti-birthright citizenship stances. Ironically, her current role in the federal government is to assist immigrants that run into trouble with the USCIS. Further, Jon D. Feere, a national advocate for ending birthright citizenship, was hired as an advisor to the acting Director of U.S. Immigration and Customs Enforcement, Thomas D. Homan.

Events in the Dominican Republic are perhaps as a harbinger of things to come in the United States. In the Dominican Republic, following a significant constitutional redefinition of Dominican citizenship and a major court decision, anti-immigrant policies have been enshrined in law. Although the Dominican Republic's 2010 Constitution retained the country's jus soli approach to citizenship, it also explicitly excluded the Dominican-born children of individuals “residing illegally in Dominican territory.” After the implementation of the new constitution, the parents of children born in the Dominican Republic were required to show proof of lawful residence for their children to be entitled to Dominican citizenship. Later, a landmark 2013 decision by the Constitutional Tribunal of the Dominican Republic retroactively stripped the Dominican citizenship from children of undocumented immigrants all the way back to 1929, effectively rendering thousands of Dominicans of Haitian descent stateless. In other words, not only did the Dominican Republic's legislature modify its constitutional equivalent of the United States' Fourteenth Amendment, but its judiciary also issued a decision making the constitutional modification retroactive, effectively stripping four generations of their Dominican citizenship.

Arguments in both the United States and the Dominican Republic are driven by the same anti-immigrant nationalistic factors: current and historical xenophobia, selective interpretations of citizenship, and plain racial discrimination. In this Article, we examine the historical context of the Dominican Republic and the United States, including legal precedents and constitutional modifications and the actual and potential legal ramifications and social consequences of these changes. We conclude that, in both countries, these changes harm the constitutional and human rights of affected individuals and are based on flawed socio-political and legal arguments. We call for inclusive, welcoming legal regimes that enhance--rather that undermine-- citizenship rights.

. . .

In many ways, the Dominican case represents the ultimate aspirations of U.S. racist xenophobes. First, Dominican ultranationalist elites have created a legal regime that solves many of the “problems” that U.S. xenophobes have with U.S. birthright citizenship laws. With the 2010 Constitution and its new re-definition of citizenship, the Dominican Republic maintains jus soli for its “pure stock” Dominican population, while conveniently excluding from it the Haitian “other,” whether this “Other” is a Haitian immigrant or a Dominican citizen of Haitian descent. Second, Dominican courts have applied this narrow definition of citizenship retroactively back to 1929, stripping Haitian Dominicans of their birthright citizenship. On top of that, a timid Dominican Executive offered a legal remedy (Law 169-14) that is notoriously cumbersome, ineffective, and deeply offensive to citizens, while deportations continue. Thus, Dominican authorities have seemingly solved the issue of undocumented immigration and “anchor babies” in one sweeping stroke. By comparison, if these Dominican acts took place in the United States, it would be as if Congress and the Supreme Court had acted in concert to strip millions of Mexican Americans of their U.S. citizenship, applying the ruling all the way back to the 1924 Immigration Act, while in the meantime continuing deportations. The consequences would have been catastrophic for millions of former U.S. citizens and their families.

While the Dominican case seems exceptional and one would be inclined to believe that it could not happen in the United States, there are aspects of the Dominican experience that bear striking similarities with the anti-immigrant hysteria that we have witnessed in the last two decades in the United States. First, the xenophobic discourse stemming from conservative ideologues in both countries is eerily similar. For example, bestselling publications in each country that rally against immigrants in their respective countries present dovetailing narratives of their nations and people as quasi-static cultural entities under attack by internal enemies in the form of unassimilable immigrants and their culturally-distinct children. These domestic aliens undermine the vulnerable, weakened cultural fabric of the nation, and will eventually bring it down with their foreign values, ghettoizing a once strong, proud nation-state. Other more extremist movements, including hate groups in both nations, go beyond the academic and cultural arguments and employ well-known tropes of immigrants as lazy, dishonest, sexually promiscuous, dirty, disease carrying, criminally inclined, undermining wages, undemocratic, disloyal, and/or lacking genuine love for the nation. Not only do writers in both nations seem to be taking cues from each other (and from European xenophobes like Jean-Marie Le Pen and his daughter, Marine), but if one were to randomly replace the words “Haitians” and “Mexicans” with each other, oftentimes it would be hard to determine the precise country of origin of the discourse.

This nationalist rhetoric is pseudo-scientific, simplistic, and produced by ideologues who profess to have the best interest of their respective countries in mind. They carefully calibrate their message so as not to appear racially biased in order to appeal to mainstream audiences. In turn, hate groups in both countries have taken this rhetoric to extreme levels by engaging in an ugly and dehumanizing discourse that appeals to basic instincts of fear, racial discrimination, and xenophobia. Although the discourse may be tweaked in order to appeal to different audiences, the objective is the same: to foster an anti-immigrant climate that will support authoritarian solutions for their removal and/or denationalization.

Second, both U.S. and Dominican xenophobes have turned legal arguments on their head to rid their countries of individuals deemed undesirable. For decades, they have resorted to speculative interpretations of their laws to try to keep “others” from becoming citizens and full-fledged members of their respective nations. In the case of the Dominican Republic, these arguments revolved around the interpretation of the “in transit” clause of the Dominican constitution. For decades until the 2010 Constitution strictly defined Dominican citizenship as applying only to the children of legal residents born on Dominican soil, politicians, legal scholars, and public figures chipped in to make their case regarding who was a Dominican citizen.

Similarly, in the United States, the Fourteenth Amendment to the U.S. Constitution has been the object of repeated attempts to interpret it as strictly limited to U.S. legal residents (“subject to the jurisdiction thereof”) and not to undocumented immigrants and their children. In both countries, these debates and calls for action have come at times of heightened awareness of immigrants, economic crises, and/or significant political events (e.g., a presidential race). Likewise, in both countries, immigrants are people of color who are seen by the host nation as needed cheap labor, but otherwise unbefitting of membership in the polity. Historically, both Haitians and Mexicans have been needed as cheap labor, mercilessly exploited, and discarded when no longer needed. Both ethnic groups have also been portrayed as racialized others by their host nations; foreigners that are culturally alien to the imagined national community and that should not and cannot be integrated.

Thus, we argue that these nationalist legal arguments have more to do with racial animus and xenophobia than with a heartfelt desire to enforce the law. Calls to enforce our laws are but a legal veneer that serves as dog whistling in an age when racial discrimination may provoke a political backlash. Xenophobes in the United States, unable to openly express racial prejudices because of their high political cost, nowadays claimto be racially blind and present themselves as zealous defenders of the nation's laws, public safety, the English language, the environment, and American workers. While they do not claim to be Hispanophobes, their arguments are clearly directed at Latino immigrants, specifically Mexicans, who represent the largest number of Latino immigrants in the United States. In the Dominican Republic, groups of self-proclaimed patriots make similar arguments for enforcement of Dominican laws and expulsion of “illegal” Haitian immigrants, arguing that Haitian immigrants do not speak the Spanish language, they steal jobs from Dominican workers, bring in diseases, commit crimes, and seek to undermine Dominican sovereignty. The solutions put forward are, not surprisingly, very similar: elimination of birthright citizenship, mass deportations, and even building a border wall.

Third, in spite of the nationalist rhetoric and the calls for extremist solutions stemming from right-wing groups (such as the building of a costly, impractical border wall), attrition seems to be the preferred strategy used by the authorities in both cases, not only because it rids the nation of some undesirable aliens, but it also keeps the ones that remain behind on a tight leash. Even in the (more extreme) Dominican case, the deportation of Haitians does not seem to be a significant priority for the government. The massive deportations that many feared after the 2013 decision of the Constitution Tribunal never took place. Haitian workers were still being deported, but it was just business as usual. If anything, thousands of Haitians and Haitian Dominicans self-deported in fear of being caught in raids by the Dominican military and then losing their hard-earned possessions. Just like the U.S. economy, the globalized economy of the Dominican Republic depends on cheap immigrant labor to keep costs down, maintain profit margins, and remain competitive. It would be economically unsound and potentially ruinous, not to mention logistically impossible, for these two countries to deport all of their undocumented immigrants. Thus, attrition seems to represent a better strategy to manage the issue and keep racialized others in their place as cheap, subordinated labor.

In the United States, attrition takes the form of dozens of state, county, and municipal laws put in place to make the lives of immigrants difficult. These laws make it harder, or impossible, for undocumented immigrants to rent an apartment, own a car, get insurance, and get an education. In the Dominican case, the lack of documents prevents Haitian immigrants and their Dominican children from doing many of these things, too. For undocumented immigrants in both countries, attrition laws mean living life in the margins of society, just scraping a living, and always living in fear of being deported at any given time.

Fourth, these developments are taking place at a moment when democracies throughout the world have been consistently expanding and enhancing their citizens' rights. Particularly in Latin America, new and progressive constitutions have sought to refine democracy in a region that just a few decades ago was characterized by authoritarian regimes. Currently, constitutions throughout Latin America grant their citizens the right to work and earn a decent living wage, to recreation, to live in a clean environment, to express their sexual orientation, and to preserve their distinct cultures, among other rights. And while many of these rights exist just in theory, these constitutions stand as examples of the notion that constitutions ought to guarantee and enhance the rights of citizens, rather than curtail them. In this sense, the Dominican Republic presents a mixed, troubling case of a new 2010 constitution that enhances the rights of its citizens while excluding from the benefits of citizenship an entire category of unwanted, racialized “others.”

Finally, both cases affect all of us as citizens living in democratic societies. These anti-immigrant laws, discourses, and practices violate basic human rights--rights enshrined in democratic conventions and in our civic institutions. Whether they take place in the Dominican Republic or in the United States, nationalist xenophobia and racial discrimination are undemocratic and dangerous to societies based on the concept of equality under the law. Calls for the unequal treatment of immigrants and their children not only strip them of their human rights; they also chip away at our democratic institutions. The harsh, authoritarian solutions employed by both the United States and the Dominican Republic in dealing with immigrant populations and their descendants have led to human rights violations, separation of families, economic losses, and widespread anguish among those families affected by these draconian measures.

Moreover, the elimination of birthright citizenship by arbitrary interpretation is wrong, unfair, and does a disservice to nations that depend on immigrant labor. These laws only serve to create an underclass of racialized immigrant workers--and their families--that live in the shadows of society, where they can be more easily exploited. Such a development would be tragic and against the best interest of both countries. The United States is a country of immigrants from all over the world, and the Dominican Republic is a melting pot of Caribbean races. In the United States, wave after wave of immigrants have built this nation. In the Dominican Republic, hundreds of thousands of Dominicans have moved overseas since the 1960s, most of them to the United States. The immigrant experience, therefore, is not alien to their national culture. Quite the opposite, it is ingrained in their social fabric. As such, both nations should embrace their immigrants and strive to assimilate them into the polity.

Calls to deport, denationalize, and reject immigrants are but the swan song of a dwindling, but vocal, minority bent on maintaining their racial and class privilege in the face of social change. The case of the Dominican Republic should serve as a cautionary tale for the United States in a period of rising anti-immigrant rhetoric.

In an effort to perhaps thwart what some will try to make inevitable, we pray this counter-narrative will shed light on darkness. We ultimately hope our accounts and arguments will affect minds and hearts, and will ultimately lead to the rejection of illogical, bias-driven, and economically tragic policies that target the most vulnerable among us.

Ediberto Román, Professor, and Director of Citizenship and Immigration Initiatives, Florida International University College of Law.

Ernesto Sagás, Associate Professor of Ethnic Studies at Colorado State University. Author, Race and Politics in the Dominican Republic.