United States: Nationwide Class Provisionally Certified in Birthright Citizenship Litigation; Preliminary Injunction is Granted But Stayed

The case is Barbara et al v. Trump et al., (25-cv-00244, D.N.H.). It was filed on June 27 by the ACLU, other advocacy organizations, and individuals after the U.S. Supreme Court issued a June 27 decision that limited three district court nationwide injunctions to the litigation parties, but left open the possibility of nationwide class actions and other broad remedies for litigants to seek widespread relief. The Supreme Court also barred the U.S. government from implementing the birthright citizenship EO for at least 30 days, meaning the EO cannot take effect until at least July 27. In the meantime, several existing and new plaintiffs have filed new and amended legal challenges to the EO, seeking to bar implementation nationwide before it can take effect.

Plaintiffs in the Barbara case sought and have now been granted provisional certification for a nationwide class defined as all current and future persons who are born on or after February 20, 2025, where:

(1) that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or

(2) that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The court filings and court order use the language of “mother” and “father” because the EO uses these terms rather than “parent.” In addition, the EO defines “mother” as the immediate female biological progenitor and “father” as the immediate male biological progenitor.

The district court has granted this provisional class a preliminary injunction that bars the federal government from implementing the EO against the class, but the injunction is stayed for seven days, providing time for the U.S. government to appeal the certified class and injunction to higher courts.

If the orders survive higher court rulings, it will mean that the government will not be permitted to implement the EO with respect to class members while litigation challenging the legality of the EO continues.

It is expected that the government will appeal the district court rulings in an expedited manner. Rulings are anticipated from other federal district courts in response to varied requests in other lawsuits for nationwide relief from U.S. states and other plaintiffs. It is expected that any ruling favorable to plaintiffs in lower courts will be quickly appealed to higher courts by the government, so the litigation landscape will remain fast-paced and fluid.

If a nationwide remedy is not granted prior to July 27, the birthright citizenship EO could be implemented on that date in U.S. states and against individuals that are not protected by an injunction. The government could also decide to delay implementation of the EO. Regardless of the outcome of the current array of preliminary injunction requests and appeals, the legality of the EO itself will continue to be litigated in the lower courts in the underlying lawsuits.