Perpetual Limbo

Government plan to implement birthright citizenship executive order is legally dubious

It’s been almost a decade since Alicia Chavarría López left El Salvador. Bothell, the Seattle suburb where she now lives, couldn’t be more different, but she calls it home nonetheless. The federal government knows she’s there. It says so on the asylum application she sent them. But requesting safe harbor in the United States requires patience. There are 1.5 million asylum applications currently in the government’s backlog so it can be years before immigration officials reach a decision.

Photo by Ricardo Gomez Angel on Unsplash

As the years pass, life goes on. People get jobs, go to school, fall in love, and buy homes. Chavarría López got pregnant and is expecting a baby any day now. Whether that baby is recognized as a U.S. citizen may depend entirely on the whims of bureaucratic backlogs. The Trump administration says Chavarría López’s baby isn’t a U.S. citizen if it’s born while her asylum application is pending. But if the baby is born after Chavarría López gets asylum, assuming she does, then the baby would be a U.S. citizen, according to a memo released by USCIS last week.

The federal government’s implementation plan reveals, for the first time, details about how the Trump administration would put in practice the president’s executive order rewriting birthright citizenship. Courts have blocked the administration from implementing the order, but the Supreme Court allowed agencies to begin planning for that possibility.

The order adopts what had long been a fringe constitutional theory embraced most prominently by John Eastman, a former law professor who was disbarred after helping hatch Trump’s attempt to stymie the Electoral College’s certification of Joe Biden’s victory in 2020. Under Trump’s order, children born in the United States are not U.S. citizens if their father is neither a U.S. citizen nor permanent resident and their mother is either unlawfully present in the United States or living here lawfully but temporarily. A person is unlawfully present in the United States if they entered clandestinely – anyone who wasn’t admitted or paroled, in the language of immigration law. It also includes the hundreds of thousands of people annually who come to the United States for vacation or school but don’t leave when their visa expired.

Identifying who is living in the United States lawfully but temporarily is more difficult. The USCIS memo includes everyone who has received Temporary Protected Status, which Congress created in 1990, and parole, a legal authority that has existed since the middle of the twentieth century. It also includes everyone who received a legal protection from deportation called withholding of removal which only immigration judges can grant and only to people who prove that they are likely to be persecuted if sent to a particular country. There were almost 1.1 million TPS recipients alone at the end of September 2024.

As detailed in the memo, Trump’s executive order likely applies to thousands of children born in the United States every year, none of whom would be recognized as U.S. citizens if courts allow it to go into effect.

Like Chavarría López’s baby, who was due last week, all those children would be left in a legal limbo. The memo explains that the agency plans to allow those children to acquire the legal immigration status of either parent. Some children don’t have a parent with lawful immigration status. These kids will simply be left living in the United States, the country of their birth, as unauthorized migrants. Many will be left stateless because many countries don’t grant citizenship to children born abroad.

The USCIS memo promises lawful immigration status to kids born to at least one parent with lawful status. Whether it can do so is doubtful. The memo compares children targeted by Trump’s executive order to the children of diplomats. Since the late 1800s, the Supreme Court has taken the position that there are three constitutional exceptions to the Fourteenth Amendment’s birthright citizenship clause. Everyone born in the territorial United States is a U.S. citizen except for children born to invading forces, indigenous tribal members, and diplomats. Congress later enacted a law granting citizenship to indigenous people and there has never been a circumstance, since the Fourteenth Amendment was enacted, in which an enemy force invades the United States.

By contrast, the children of diplomats are not treated as U.S. citizens at birth. Instead, a government regulation lets them apply for permanent residence. But neither the Supreme Court nor Congress has ever backed up this regulation. Indeed, the 1982 notice that the Justice Department, which oversaw immigration policy at the time, published explaining the rationale for this regulation doesn’t point to any solid legal foundation. It merely identifies one decision from a federal district court and two decisions of the Board of Immigration Appeals, the Justice Department unit that deals with appeals of immigration judges’ decisions.

None of these decisions provides a solid foundation for the Trump administration’s promise. The more recent of the two BIA decisions, from 1972, takes as given that children of diplomats are eligible for permanent residence. The earlier decision applies logic, rather than law, to reach this conclusion. “It would be absurd and a vain thing to require aliens who are born in the United States and have never left this country to depart and be readmitted simply to effect a lawful admission,” the BIA wrote in its 1965 decision Matter of Huang. As logical as the Board’s argument sounds even today, the decision doesn’t point to any legal authority granting it the power to create permanent residence options. (I haven’t been able to find the district court case.) A later federal district court decision merely points to the BIA decisions and regulations without identifying any independent legal support.

If the Trump administration were to use the government’s exceptional treatment of the children of diplomats to create pathways to legal status for children who have, up until now, been treated as U.S. citizens, courts are likely to balk. Congress has created a complex net of requirements for obtaining immigration legal status, even for the dozens of visas that allow people to live or work in the United States for a period of years. Without meeting those requirements, it’s hard to see how USCIS creates a legal pathway out of nothing.

No recent administration has tried to do anything like this. The parole authority and TPS that the Biden administration used vigorously are statutes enacted by Congress. Likewise, the Deferred Action for Childhood Arrivals program relies on parole and the prosecutorial discretion that all law enforcement agencies inherently possess.

The agency’s claim that it plans to use its regulatory authority to create lawful immigration status seems like a smoke-and-mirrors promise. It’s meant to distract from the criticism that the president’s executive order will leave generations of children stateless. Without citizenship in the country of their birth, they face the possibility of floating in a perpetual legal limbo without citizenship anywhere. Plus, the agency’s promise flies in the face of the politics of immigration in the United States. By stretching its regulatory powers to the benefit of migrants, USCIS would overreach its legal authority far more than what Republicans have routinely gone to the courts to stop Democrats from doing.