 "Donald Trump signs executive order to end birthright citizenship. How will it affect Indians?")
US President Donald Trump issued a slew of executive orders upon his return to the White House.
Among these, perhaps the most controversial is his move to end birthright citizenship.
This executive order, which will likely be challenged in the courts, has already sparked much debate on social media.
But how could it impact Indians in the United States?
Let’s take a closer look:
A brief look at birthright citizenship
First, let’s briefly examine birthright citizenship.
Birthright citizenship in the United States is guaranteed under the 14th Amendment to the US Constitution.
It states, “All persons born or naturalised 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.”
In essence, it states that any child born on US soil is a citizen of America.
As per Hindustan Times, the 14th Amendment to the US Constitution was passed in 1868 – after the end of the Civil war.
The idea behind it was to illuminate the status of those who had previously been enslaved.
According to the Brennan Centre, the US Supreme Court endorsed this around 130 years in United States vs Wong Kim Ark.
That case, which was litigated in 1878, dealt with Wong Kim Ark who was born in San Francisco in 1873.
After Ark went to visit his parents in China, he was not allowed to reenter the United States.
Government officials claimed he was not a US citizen.
However, the US Supreme Court begged to differ, saying in its ruling that birthright citizenship is “ancient and fundamental.”
Now, let’s look at Trump’s executive order.
Under Trump’s executive order, a child born in the US can only become a citizen if
At least one parent is a citizen
One parent is a green card holder
One parent is in the US military
Trump’s order reads, “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.”
“…But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof,” the order signed by Trump argued.
As per CNBC, the order is set to take effect in 30 days.
It does not apply retroactively – meaning those already naturalised will not lose their citizenships.
A Trump administration official in a briefing, referring to the 14th Amendment to the US Constitution, said, “The federal government will not recognise automatic birthright citizenship for children of illegal aliens born in the United States. We are also going to enhance vetting and screening of illegal aliens.”
Trump himself had called birthright citizenship ‘ridiculous.’
He said he “absolutely” planned to halt birthright citizenship after taking office.
How will it affect Indians?
As per CNBC, there are around 5.4 million Indian-Americans in the US.
They comprise 1.47% of the population.
While two-thirds are immigrants, 34 per cent are born in the United States.
Trump’s order, if it goes into effect, means that Indians in America on work visas would no longer see their children become US citizens at birth.
This could affect hundreds of thousands of children per year.
Those waiting for green cards could face even longer delays.
As per The Times of India, over a million Indians have been waiting for years to get an employment-linked green card.
Cyrus D. Mehta, New York based immigration attorney told the newspaper, “If both parents are in the US in a non-immigrant status, such as in H-1B and H-4 (dependant visa) status, under Trump’s EO the State Department will not issue a US passport to the child as they are no longer regarded as ‘subject to the jurisdiction thereof’. This EO will obviously be challenged in court, but I can see the Trump administration taking this all the way to the Supreme Court in the hope that the majority of conservative justices could agree with Trump’s new interpretation of the 14th Amendment.”
“If the courts agree with Trump’s interpretation, going forward children of H-1B and H-4 non-immigrants who are born in the US, will not be recognized as US citizens. There is a ripple impact. Many Indians are caught in 100 year employment-linked green card backlogs, and so their only hope was for their child born in the US to sponsor them, when he/she attained 21 years. Now this will not be possible.”
As per Indian Express, Trump’s order will impact Indian families using ‘birth tourism’ – where women travel to the United States and deliver there to get citizenship for their children.
Indians and Mexicans are among the highest percentage of those using ‘birth tourism,’ according to the newspaper.
What do experts say?
Experts think the executive order is likely to be struck down by the United States Supreme Court.
The Brennan Centre piece noted that not only is the right enshrined in the Constitution, but that the court has a long history of adhering to it.
“Trump’s order contends — as opponents of birthright citizenship long have — that the children of undocumented immigrants can’t be citizens, because they allegedly aren’t “subject to the jurisdiction” of the United States. That’s nonsense,” the piece argued.
It also noted that though the right-wing court has ruled in favour of Trump time and time again, courts throughout history have found no way to counter the 14th Amendment’s straightforward language.
“This precedent will loom — rightly and heavily — over any move the Court makes,” the piece noted.
“When we ratified the 14th Amendment, we rejected the idea that some people born here are less than others in the eyes of the law. We reject that idea again today. We say that out loud — for everyone to hear — because protecting our Constitution requires all of us to speak and act like we still have one. No matter what kinds of orders might come off a president’s desk,” it concluded.
Greg Siskind, co-founder of Siskin Susser, an immigration law firm, told The Times of India, “The unconstitutionality of this is stunning. The term ‘subject to the jurisdiction thereof’ was never intended to apply to those targeted by the EO. It was meant to apply to diplomats who are not subject to the jurisdiction of the US. This is going to be litigated and I predict it will be enjoined before it is effective in 30 days. But obviously there’s no guarantees here.”
The case may land up in the Supreme Court sooner rather than later.
Trump’s executive order is already facing a legal challenge.
Immigration advocates in New Hampshire said the order leaves children and their families facing “a lifetime of exclusion from society and fear of deportation from the only country they have ever known.”
“But that is illegal. The Constitution and Congress — not President Trump — dictate who is entitled to full membership in American society.”
With inputs from agencies
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