Unpacking Trump’s birthright citizenship restriction: Who stands to lose?

President Trump has already moved to implement his anti-immigration agenda, by issuing an executive order to curtail the scope of birthright citizenship. (AP Photo/Evan Vucci) (AP)
President Trump has already moved to implement his anti-immigration agenda, by issuing an executive order to curtail the scope of birthright citizenship. (AP Photo/Evan Vucci) (AP)

Summary

  • Trump's executive order on birthright citizenship could impact millions. We decode the potential challenges, and the implications for immigrant families, particularly those on H1B visa

US President Donald Trump has issued an executive order aiming to curtail the scope of birthright citizenship, a policy granting citizenship to anyone born on US soil.

If upheld by courts, this order could hurt millions of immigrants, including those of Indian origin. Currently, 22 states are challenging the order in court. The move could also hurt the US economy, a rich country that faces a declining fertility rate and relies on immigration to strengthen its workforce.

America’s birthright citizenship is rooted in the 14th Amendment to the US Constitution, adopted in 1868. Section 1 of the Amendment states:

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This would seem fairly straightforward. However, the Trump administration has relied on the phrase “subject to the jurisdiction thereof", which qualifies the birthright to citizenship, to truncate that right.

This seems odd. The only limited exemption from US jurisdiction for anyone present in the US would be restricted to those present in the US on the diplomatic service of a foreign power.

In general, just because someone is subject to the laws of a country where driving on the left side of the road is the norm, that does not mean they can do so in the US. If someone wishes to adhere to laws that differ from those in the US, they cannot reasonably claim citizenship or naturalization.

The executive order stipulates that “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States:

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

(2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth."

Also Read: America’s H-1B visa is vital to US interests—and suits India too

Implications of the executive order

It should be noted that both conditions outlined in the order stipulate two conditions each for disentitling children for birthright citizenship. These conditions are conjoined by ‘and’, and not ‘or’. That means that both conditions must be met for the disqualification to kick in.

Lawful presence is defined as being either a citizen, possessing permanent residency, or possessing a valid temporary visa.

Further orders could be issued to privilege the legal status of the father, blood generally being traced, in legal traditions, if not in medical science, through the father’s line. That would disqualify combinations 4 and 7 as well. If citizenship is derived through jus sanguini, right of blood, privileging of the father is a possibility. That should fall foul of the Constitution’s equality guarantee for all citizens, regardless of gender.

It is more than likely that the executive order would be struck down as illegal.

The executive order would deny citizenship to children born to parents who are on work visas, rather than permanent residency. This is stipulated prospectively rather than retrospectively. Children of an H1B visa mother would be denied citizenship, unless the father is either a citizen or a permanent resident. Children of a man working in the US on an H1B visa and his dependent spouse would fall under combination 5, and would be disqualified.

Also Read: Why Indians are losing a lot of money due to visa rejections

 

Clues from the past

Children of H1B visa holders would typically grow into high-achieving members of society, if the Indian diaspora history is any guide. Turfing them out would only deny the US the kind of talent its knowledge sectors would require.

The government of India does not apply the jus soli principle when it comes to India-born children of foreign nationals. There is no big chance of Indian diplomatic pressure changing Trump’s mind on truncating birthright citizenship.

America’s history and tradition as a nation of immigrants, and its legal system would have to yield the kind of solution that H1B visa workers would like to have.

Also read: Mint Primer: How H-1B visas got caught in the MAGA debate

 

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