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Birthright Citizenship in the United States

March 7, 2025

By: Daniel E. Kelly, Esq. and Daniel Ezraty, Esq.

On January 20, 2025, the President issued Executive Order 14160 “Protecting the Meaning and Value of American Citizenship” (“EO”). The EO attempts to strip fundamental rights provided by the U.S. Constitution from individuals born in the United States. The executive order attempts to end birthright citizenship in the United States for children of unauthorized immigrants, as well as immigrants legally present in the U.S. This challenges the Fourteenth Amendment to the U.S. Constitution, which provides that individuals born on U.S. soil are, with limited exceptions, U.S. citizens.

The Executive Order restricts birthright citizenship for certain categories of individuals born in the U.S. Specifically, it states that U.S. citizenship will no longer automatically extend to children born in the U.S. when:

  1. The mother was unlawfully present in the U.S. and the father was not a U.S. citizen or lawful permanent resident at the time of birth, or
  2. The mother’s presence was lawful but temporary, such as, but not limited to, visiting on a visa, and the father was not a U.S. citizen or lawful permanent resident.

The plain intent of the EO is to limit the automatic acquisition of citizenship only to children born in the United States whose mother or father is a lawful permanent resident or U.S. citizen. This would impact the children of undocumented parents, as well as the children of parents who are in lawful nonimmigrant status, such as TPS or H-1B. The EO makes clear that children of lawful permanent residents are not affected. This would also adversely impact the ability of U.S. companies to recruit the best and brightest talent from around the world to contribute to the nation’s economic growth and innovation. Additionally, the EO limits the definition of who a mother and father are, to include only biological men and women. These narrow definitions could impact the children of same sex couples and children born through Artificial Reproductive Technologies.

Analysis

The policy was set to take effect 30 days after the issuance of the EO and apply to children born on or after February 20, 2025, however on January 23, 2025, U.S. District Court Judge John Coughenour of the U.S. District Court for the Western District of Washington issued a temporary restraining order blocking the EO, stating that he “had difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” and that it “boggle[d] [his] mind.”

Judge Coughenour subsequently issued a nationwide preliminary injunction on February 6, 2025 to stop the administration from acting on its plans to enforce the EO. Three other federal district court judges in Maryland, Massachusetts and New Hampshire have also issued preliminary injunctions blocking the administration from enforcing the EO. The U.S. Court of Appeals for the Fourth Circuit recently joined the U.S. Court of Appeals for the Ninth Circuit in maintaining the District Courts’ injunctive relief barring enforcement of the EO while litigation over its validity proceeds. The Fourth Circuit explained that “[f]or well over a century, the federal government has recognized the birthright citizenship of children born in this country to undocumented or non-permanent immigrants” and that it was “hard to overstate the confusion and upheaval” that would be caused if the EO is permitted to take effect. The Supreme Court has not taken up the issue yet.

Leech Tishman is closely monitoring the litigation concerning the EO as it proceeds through the Federal Courts.

Note, portions of the information contained in this Alert were derived from the American Immigration Lawyers Association.

This alert is meant to offer general information and understanding of the law, not specific legal advice. Receiving this communication does not establish an attorney-client relationship, and the content should not replace legal advice from a licensed attorney in your jurisdiction.

Daniel E. Kelly is an attorney in Leech Tishman’s Immigration Group, Litigation Practice Group, and White Collar Defense Group. He is based in the firm’s New York office. He can be reached at dkelly@leechtishman.com

Daniel Ezraty is an attorney in Leech Tishman’s Litigation Practice Group and is based in the firm’s New York office. He can be reached at dezraty@leechtishman.com

To stay up to date with the Trump Administration’s Executive Orders, please visit our Executive Order Legal Tracker.

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