Birthright citizenship: Crucial new details on how the Trump administration's policy would work — if the courts ever allow it
So far, courts have repeatedly found that Trump does not have the power to unilaterally nullify a constitutional right, which has automatically granted anyone born in the United States citizenship — regardless of their parents' circumstances — for more than 150 years. The final say will likely come from the Supreme Court, which gave Trump an important procedural win last month but has yet to weigh in on his authority to revoke birthright citizenship.
Another critical question that has lingered for the past seven months is who it would apply to. Trump's order established broad categories for the types of immigrants whose children would not be granted birthright citizenship. What it didn't provide was specifics on which types of immigrants would fit into those categories.
On Friday, U.S. Citizenship and Immigration Services (USCIS) quietly published a memo to its website outlining those long-awaited details.
Trump's original order outlined two sets of circumstances in which a child would not be granted citizenship:
1. The mother is 'unlawfully present' in the U.S. and the father isn't a citizen or permanent resident.
2. The mother's presence in the U.S. is 'lawful but temporary' and the father isn't a citizen or permanent resident.
That first category is straightforward. The children of mothers who are not in the U.S. legally would not be granted citizenship. That second category, though, hinges on the definition of 'lawful but temporary,' which was not included in the original order.
The U.S. immigration system is incredibly complex. There are dozens of different types of visas, statuses and other mechanisms that can allow someone to come and stay here. The most important thing the new memo does is define 'lawful but temporary' for the first time. Under the updated guidelines, 'lawful but temporary' status will include immigrants who are here legally but whose presence in the U.S. is 'time limited, for duration of status, or otherwise not perpetual.'
It also includes a list that this definition will apply to. According to the new rules, birthright citizenship would not be granted to the children of mothers who have:
Entered the U.S. for tourism, business, medical care or temporary work.
Been granted a stay of removal because their life, freedom or safety would be threatened in their home country.
Filed to voluntarily leave the U.S., but have not left yet.
Received legal status through programs for certain relatives of immigrants who became legalized aliens.
Received a visa through programs for victims of human trafficking and certain other crimes.
Been granted Temporary Protected Status (e.g., Haitian migrants), deferred removal (i.e., DACA recipients) or parole for "urgent humanitarian or significant public benefit reasons.'
Cumulatively, these categories mean that the vast majority of legal immigrants will not pass on citizenship if they have children in the U.S. However, there are some important groups that would not be considered 'lawful but temporary' whose children would be granted citizenship.
They include:
Permanent residents
Asylum recipients
Refugees
U.S. nationals who are noncitizens (e.g., people from American Samoa)
Certain Native Americans who were born in Canada
The memo adds that although the children of people with 'lawful but temporary status' would not be citizens, the government's policy will be designed to protect those children from 'any negative immigration consequence' as a result of being born without an official legal right to be in the U.S. Specifics of what that might mean, most importantly whether noncitizen children born in the U.S. would be subject to deportation or how their parents might apply for legal status, were not provided.
All of these new details only matter if the courts give the Trump administration the power to put Trump's plan to revoke birthright citizenship into action, but they provide important clarification on how things would work if the policy ever does take effect.
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