Birthright Citizenship in the U.S.

Having survived the previous Trump Administration, immigration attorneys across the nation are bracing ourselves for what is to come. One of the first things the Administration has promised to do is end birthright citizenship. Read on to find out what this means and if an executive order can really end birthright citizenship.

Birthright Citizenship in the U.S. – What is it?

Simply put, birthright citizenship is U.S. citizenship obtained by birth in the U.S. There is only one exception that applies – those who are not “subject to the jurisdiction thereof.” There is only one clear instance of those not subject to the jurisdiction thereof: those born to foreign diplomats within the U.S., as they are protected by sovereign immunity.

The most recent case the Supreme Court has ruled on this exact issue was in 1898, in United States v. Wong Kim Ark. In that case, Wong Kim Ark was born in San Francisco to parents of Chinese citizenship, who were subject to the Chinese Exclusion Act. The Court ruled that under the 14th Amendment, Wong Kim Ark was naturalized and obtained citizenship at birth since he was born in the U.S., regardless of his parents’ immigration status.

Can Birthright Citizenship End by Executive Order?

Technically, yes. Realistically, no.

What will likely happen is that the Trump Administration will be sued once the executive order is published. It seems that the Administration hopes to get the issue before the Supreme Court, where they hope the three justices appointed by Trump will rule in his favor.

However, this process will take years and a decision to uphold the executive order would require an interpretation of the 14th amendment that has never been held. It is quite a feat but one that is not impossible.

I Was Born in the U.S. to Undocumented Parents, Now What?

If you are at least 21 years old, then you should submit an I-130 petition on behalf of your parents, at the very least. Consult with an immigration attorney to determine options and next best steps. But as of the publishing date of this post (January 8, 2025), you have the right to petition for your parents. Whether your parents are eligible for permanent residence is a separate matter but filing the I-130 petition is the first step.

If you do not yet have a U.S. passport you should apply for one. Even if the Trump Administration issues an executive order to halt or hinder the passport application process for birthright citizens, they cannot be applied retroactively. So submit applications for new or renewal passports now.

Conclusion

Procedurally and technically speaking, yes, the Trump Administration can try to end birthright citizenship through executive order. However, succeeding in this attempt would take years and be a monumental feat, as it would require a new interpretation of the 14th Amendment. If you have any doubts or would like to file for yourself or parents, consult with an immigration attorney!