California Criminal Defense Lawyer Blog
In the United States, birthright citizenship is guaranteed by the Fourteenth Amendment to the Constitution. Affirmed by the United States Supreme Court in 1898 in the case, United States v. Wong Kim Ark, this right extends to any child born in the United States, regardless of the child’s parents’ nationality and regardless of whether that child later lives in another country.
Recently President Trump signed an executive order to deny birthright citizenship to specific categories of individuals. The executive order was immediately challenged in the federal courts, and it in all probability the United States Supreme Court will once again be tasked with interpreting the Fourteenth Amendment.
The executive order would deny citizenship to those babies born of undocumented immigrants or those in the country with temporary status. It is the latter category that is the subject of this blog.
Birth tourism, also known as maternity tourism or passport babies, is a phenomenon where pregnant women travel to the U.S. to give birth, primarily to secure U.S. citizenship for their child in that country. Usually, the mother enters on a tourist visa. Birth tourism typically involves women traveling late in her pregnancy, where she checks into with an agency or medical facilities for a pre-arranged birth package.
While birth tourism is not explicitly illegal in the United States, visa misrepresentation is. If a pregnant women enters the U.S. on a visa that she obtained under false pretenses, such as a tourist visa without disclosing her intent to give birth in the country, she could be accused of visa fraud. U.S. immigration law requires that visa applicants provide truthful information about their intentions.
There have been legislative attempts and policy discussions to curb or regulate birth tourism more strictly. For instance, in 2020, U.S. Immigration and Customs Enforcement (ICE) announced a policy aimed at cracking down on birth tourism, focusing on the operators of such services rather than the women themselves. However, these measures primarily target the commercial aspect of birth tourism, not the act of giving birth in the U.S. per se.
Recently a Rancho Cucamonga couple was found guilty of operating a “birth tourism” racket. The couple charged Chinese nationals tens of thousands of dollars to arrange and facilitate the birth of their child in the U.S. They ran “maternity houses” where their clients were provided with short-term housing and other services, including customs entry guidance, and legal document assistance. The couple advised their clients on how to obtain a tourist visa and how to subvert visa and customs regulations. According to the evidence, the scheme operated from at least January 2012 to March 2015,
The couple was convicted on charges of conspiracy and international money laundering and both have been sentenced to lengthy prison sentences. Following the arrests of this couple, federal authorities indicted 19 other individuals linked to birth tourism operations in Southern California. One of those operations was in Orange County and was advertised as to Chinese nationals as “You Win USA .” You Win USA housed pregnant “tourists” in at least 20 apartments in Irvine and charged between $40,000 to $80,000 to its clients for each birth.
Whether President Trump’s birthright citizenship executive order is ultimately found lawful or not, the fraudulent procurement of a tourist visa for the purpose of giving birth on U.S. soil is now and is likely to remain unlawful. However, the child born under such circumstances will enjoy the right to U.S. citizenship. President Trump’s executive order would change that.
Orange County criminal defense attorney William Weinberg is available for a free consultation. You may contact him by calling him at his Irvine office at 949-747-8008 or by emailing him at bill@williamweinberg.com.