United States: District Court Temporarily Halts Birthright Citizenship Executive Order

The Executive Order (EO) at issue seeks to limit birthright citizenship for certain groups of children born in the United States after February 19, 2025. It applies to the following children born after February 19, who do not have a U.S. citizen or U.S. lawful permanent resident father at the time of their birth:

• Children with a mother who is unlawfully present in the United States at the time of the birth; and
• Children with a mother who is lawfully, but temporarily, present in the United States at the time of the birth.

The second group of children includes those born to a mother in any nonimmigrant status, such as B-1/B-2 (including Visa Waiver), F-1, J-1, H-1B, L-1, E, O-1, P, TN, and any nonimmigrant dependent status. There are no exceptions in the EO for any type of temporary immigration status and there are no exceptions for foreign national parents who are in the green card process.

In defining who is deemed a mother or father for the purposes of the EO, President Trump states that “Mother” means the immediate female biological progenitor and “Father” means the immediate male biological progenitor. Therefore, parents of adopted children and parents with legal but not biological parentage of a child are not considered to be a “mother” or “father” under the order.

The EO is explicit that it applies only to children born after February 19, 2025. If the EO is permitted to go into effect, children born in the United States on or before February 19, will still be considered U.S. citizens after that date. Those who are U.S. citizens on February 19 will not lose or be stripped of their citizenship as a result of the EO.

Also, if it is permitted to take effect, the EO orders federal agencies to stop issuing documents that recognize U.S. citizenship for affected children after February 19, and to refuse to accept documents issued by State, local, or other authorities that recognize their U.S. citizenship. Families may find that they are refused U.S. passports by U.S. authorities for these children, and refused issuance of U.S. citizen social security numbers.

Further, since under the EO, children born after February 19 to unlawfully present parents will have no U.S. immigration status, these children would be subject to deportation. For children born to parents with H-1B, L-1, TN, O-1, P, or any other lawful, temporary status, though the EO does not specify, these families would presumably be required to obtain evidence of their child’s dependent nonimmigrant status (e.g., H-4, L-2, TD, etc.) through an immigration application.

The underlying legal authority for birthright citizenship is found in Section 1 of the 14th Amendment to the U.S. Constitution and its interpretation in the 1898 U.S. Supreme Court case, United States v. Wong Kim Ark, 169 U.S. 649 (1898). The relevant 14th Amendment language is (emphasis added): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” (emphasis added).

For more than 125 years, pursuant to the 14th Amendment and its interpretation in Wong Kim Ark, the United States has operated under the legal principle of jus soli, which grants U.S. citizenship based solely on birth on U.S. soil, regardless of the parents’ status in the United States. The only significant exception to this jus soli principle has been in the narrow circumstance of children born in the United States to foreign diplomats. These children – like their diplomat parents – are not subject to U.S. jurisdiction because their diplomatic status grants them privileges and immunities from U.S. law. Violations of law are generally handled diplomatically rather than through the U.S. legal system. Because the children of diplomats hold the same diplomatic exemptions as their parents, they are not “subject to the jurisdiction” of the United States as required by the jus soli provision of the 14th Amendment, and therefore, do not acquire U.S. citizenship upon birth in the United States.

President Trump’s EO interprets the 14th Amendment clause “subject to the jurisdiction thereof” to encompass a narrower group of children born in the United States. The EO takes the position that, in addition to children of diplomats, children born to undocumented mothers and to mothers who are in a lawful, but temporary, status are also not subject to U.S. jurisdiction; this is not a prevailing view among experts on the U.S. Constitution and U.S. citizenship laws.

The birthright Executive Order is temporarily paused by court order until at least February 6, 2025. Several other lawsuits have been filed in federal district courts and may yield separate injunctions or limiting court orders. However, the outcome of litigation cannot be predicted. If foreign nationals believe that their children may be affected by the birthright citizenship EO, were it to take effect after February 19, they should consult with qualified immigration counsel.