Immigration Under Trump: Part 5

-Will your child be a US citizen?


Posted July 11, 2018 - By Shahzad Ahmed With NeJame Law

In a previous article, we discussed the notorious Trump Travel Ban. In his further attempt to inhibit and discourage immigration to the US, President Trump announced that he will end birthright citizenship via an Executive Order. This announcement sent fears among the immigrant community about whether their children, born in the United States, will be U.S. citizens. It also raised the question of whether such an order by the President would violate the U.S. Constitution.

The part of the 14th Amendment relevant to this issue reads:

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.

. . . .

The legal argument for not granting citizenship to a child born in the U.S., rests primarily on the interpretation that a child born to an “illegal alien” in the U.S. is not subject to the jurisdiction of the United States. In other words, since his or her parents did not enter the United States lawfully and did not avail themselves to the full laws and protections of the United States, that the child is not properly under the jurisdiction of the United States, and therefore, not United States citizens.

However, such would be an extremely narrow interpretation of the 14th Amendment. Even though a parent may enter the U.S. unlawfully, they are subject to many laws and protections of the United States. For example, they are subject to the criminal laws and may be punished accordingly. Also, they are entitled to due process.

For those who fear that birthright citizenship encourages illegal immigration, then their resort is at the ballot box and to have the Constitution amended. Until then, it appears unlikely that the Courts would uphold any presidential executive order revoking birthright citizenship.