The Governor of the Mexican state of Baja California, Marina del Pilar Ávila Olmeda, is coming under political fire for her decision to give birth to her son in the United States instead of in Mexico, according to an article posted this week by The Border Report. The birth, confirmed by the Mexican government, took place last Friday in Brawley, California, a city just north of the U.S.-Mexico border—to be exact, 36 miles north of the Governor’s hometown of Mexicali, Mexico.
The Border Report notes this is the second time Avila Olmeda has crossed into the U.S. to give birth to a child. In 2016, she gave birth to her first child, a daughter, in the very same hospital in Brawley, California.
Ms. Avila Olmeda, who previously served as a federal legislator and then as mayor of Mexicali, was elected governor of Baja California just last summer. She is not only the state’s first female governor, she is also it’s youngest governor. At her swearing in ceremony, she stated: “I am committed to show what women can do. To break glass ceilings to participate in public service as our grandmothers and mothers have dreamed.” (The San Diego Union Tribune, Nov. 1, 2021) She also voiced her commitment to fighting corruption.
According to Border Report, however, critics are now calling the governor’s decision to give birth in the U.S. “elitist,” “hypocritical,” and an “insult.” Governor Avila Olmeda’s office did not respond to criticism of the decision, but merely responded that Avila Olmeda’s son is most certainly Mexican and will have dual citizenship.
But criticism has continued this week. In an interview for the California Globe, Maria Diaz, an immigration specialist in Tijuana, said that poor people go to the U.S. to give birth and get citizenship for their children because it can take years to get a visa. “But when wealthier people do it,” she added, “it’s almost entirely for the reason of giving them a head start in life. You don’t need visas to get to good colleges in California with U.S. citizenship, and they can afford the dual taxes. If anything, we see this as benefiting the U.S. because of all the money wealthier Mexicans and their children put back into the U.S. rather than in Mexico. What Avila Olmeda did, that is seen as ultra-elitist. She can try and claim the hospitals are better or there is less crime in California, but we all know the real reason.”
In addition to the political fallout in Mexico, the event raises questions about Ms. Avila Olmeda’s immigration status and whether she obtained a visa to cross into the U.S. to give birth. Mexican citizens have several avenues by which they can easily enter the U.S. to have a child. For example, if Ms. Avila Olmeda were a dual citizen or a green card holder, she would generally be able to enter the U.S. without restriction.
However, Mexicans who are not dual citizens or green card holders usually need a visa to enter the U.S., as Mexico is not a visa waiver country. Absent a work visa (presumably, as a Mexican official, Avila Olmeda is not employed in the U.S.), a Mexican would need some other type of visa, most likely a tourist visa (B-2), to enter the United States. A B-2 visa typically is valid for 10 years and permits multiple entries of six months each (maximum).
However, pursuant to regulations issued in 2020 by the Trump Administration, giving birth in the U.S. to obtain citizenship for a child is no longer a valid reason for obtaining a B-2 visa. Furthermore, any applicant for a B nonimmigrant visa “who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.” (22 CFR 41.31)
Thus, if Ms. Avila Olmeda applied for the visa recently, pregnant and having made plans to give birth in a U.S. hospital, the State Department should not have issued her the visa. However, if Ms. Avila Olmeda applied for the visa years ago, before she became pregnant and before the issuance of the 2020 State Department regulation, consular officials would likely not have scrutinized her application.
Either way, the circumstances surrounding Ms. Avila Olmeda’s decision to give birth to both her children in the U.S. demonstrate how individuals have long taken advantage of U.S. immigration laws, whether legally or illegally, to obtain visas for reasons beyond the original intent of the law. Birthright citizenship has long encouraged such abuse, often called “birth tourism,” by granting citizenship to any child born in the U.S., regardless of the parents’ immigration status. The practice has received greater attention in recent years as multiple media outlets have documented the emergence of businesses designed for the express purpose of helping pregnant women come to the U.S. on tourist visas to give birth and obtain passports for their children. (See, e.g., Associated Press, March 22, 2019; NPR, March 4, 2015)
This case also demonstrates the ongoing need for Congress and the Executive Branch to eliminate opportunities for fraud and abuse and continually strive to preserve the integrity of the U.S. immigration system. Until the State Department adopted the 2020 regulation, little had been done to combat such abuse of the system, which was technically legal. It remains to be seen whether the Biden Administration maintains the 2020 regulation or rescinds it in a knee-jerk fashion as it has done with so many immigration regulations issued during the Trump Administration.