Pregnancy profiling: Latest nativist immigration policy from Trump

In mid-January, a woman from Japan was refused the ability to board a plane from Hong Kong to the U.S. unless she submitted to a pregnancy test, after an airline agent determined, incorrectly, that she was in an advanced stage of pregnancy. Immigration and civil rights lawyers went on alert.

Airlines stand to be fined for allowing inadmissible persons on their flights into the U.S. As a consequence, the actions of airlines sometimes signal advance knowledge of internal memos or immigration rules about to be formally enacted.

We were correct to be on alert. A few days later, media outlets obtained unclassified, but not public, Department of State cables reflecting a Trump Administration rule and guidance for Department of State consular officers, directing them to erect additional admission hurdles for women they believe to be pregnant. 

Under the terms outlined in the cable, women believed by a consular officer to be pregnant, but otherwise eligible to enter the U.S., would now bear the burden of proving that there was a reason for travel, other than giving birth in the U.S. 

In other words, the U.S. will now assume that pregnant women are coming to the U.S. for the sole purpose of giving birth, and it will be incumbent upon women. Only women, to go with additional evidence to rebut that presumption. 

The policy purports to get at the “problem” of “birth tourism.” Both the policy itself, and this assumption that “birth tourism” is a problem, and that this policy will stem the tide, are both flawed, for several reasons. 

First, the policy inevitably springs from the mind of a nativist, for whom the myth of the so-called “anchor baby,” a factually and morally flawed, as well as a pejorative phrase, has been in a constant spin cycle. Nativists use the term as a justification for ending jus soli citizenship — that is, citizenship conferred by being born in the U.S.

The phrase is a myth because there is no such thing as a baby “anchoring” a family that would otherwise not have status in the U.S., by that infant’s citizenship. For a child to apply for a family to immigrate, that child must reach the age of 21. 

After that point, the child can apply for its parents only, who must also be admissible. If this law creates an “anchor,” it is attached to a very long and very tenuous chain. The first lady was able to bring her parents much more quickly than could a baby born on U.S. soil.

Secondly, the rule depends on the incredibly broad, unreviewable, and unappealable discretion of consular officers. In the late 90’s we learned about the explicit racial and economic profiling engaged in by consular officers, at the direction of the government, when one such officer was fired for refusing to comply with the profiling. 

The lawsuit revealed that consular officers regularly engaged in “gut assessments” when denying visas. They made a subjective judgment about applicants based on their appearance, employing letters to indicate their findings. The letters were “LP” to indicate “looks poor,” as well as “talks poor” and “looks scary,” and on this basis alone would deny a visa applicant.

Third, and this is perhaps the worst, the rule is incredibly misogynistic. It only impacts women, and it assumes that the primary reason any woman would have to come to the U.S. would be to give birth. It creates a rebuttable presumption, initiated by consular officers engaging in pregnancy profiling, that places the burden on the applicant — and only on female applicants — to establish a primary basis for travel unrelated to pregnancy. 

The new policy allegedly only pertains to B1/B2 visas, which are for tourism and business travel. 

Yet, if profiling visitors seeking visas will stem the alleged tide of “birth tourists,” then why only B visas? The 22 visa waiver countries, whose citizens are not required to obtain a visa to visit, and who are also more often North European and wealthy, are not to be screened.

Further, how long before the Department of State, which still screens all-female visa applicants who apply outside of the United States, screens all for pregnancy? 

The recipient of an O visa, the so-called “Einstein visa,” which, incidentally is what the first lady has claimed to have received, would be presumed if she “looked pregnant” to be coming to the U.S. to give birth unless she proved otherwise. 

A male visa holder would never bear this burden; even though, as was proven by the story leading off this opinion piece, it is apparently easy to guess incorrectly about whether or not a woman is pregnant. 

One of the first rules of etiquette is to never ask a woman if she is pregnant, because the likelihood of being wrong is both so high, and so traumatizing, as the Japanese woman at the outset of this piece stated.

The pregnancy profiling rule is a way of bringing “birthright citizenship” or jus soli up for discussion again, which is what nativists seek. Although the 14th Amendment is quite clear in granting citizenship to all persons born in the United States, nativists are also not fond of this Amendment. 

Like many of the misogynistic and anti-immigrant policies that seem to be dictated by a nativist agenda, rather than by what is legally, morally and economically good policy for the United States, this one too is incoherent, discriminatory and disingenuous. It should never be implemented, and we should not have to live in a country where our policy advisers even conceive of such laws. 

Dina Francesca Haynes is a professor of law at New England Law.