On President Trump’s first day in office, he signed a series of executive orders that could have far-reaching implications on immigration law in the near future. President Trump’s orders were designed to further his hardline immigration agenda that he promised during his campaign. However, in attempting to accomplish this task, President Trump signed some of the most aggressive and legally imaginative executive orders in recent memory.
This begs the question: Are President Trump’s new immigration orders legal?
End of Birthright Citizenship
President Trump signed an order called “Protecting the Meaning and Value of American Citizenship” prohibiting birthright citizenship when 1) the child’s mother was unlawfully present in the United States or 2) when the child’s mother’s presence in the United States was lawful but temporary (such as a tourist visa) and 3) the father was not a U.S. citizen or legal permanent resident at the time of the child’s birth.
This order is likely illegal. The Fourteenth Amendment of the United States Constitution states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
Trump is attempting to argue that the Fourteenth Amendment does not apply to children born to undocumented aliens because they are not “subject to the jurisdiction” of the United States. This argument will likely fail. If an undocumented alien was not subject to the jurisdiction of the United States, then the United States would not be able to place the undocumented alien in removal proceedings for immigration violations or jail if they committed a crime.
Furthermore, the U.S. Supreme Court has already ruled on this exact issue in United States v. Wong Kim Ark, 169 U.S. 649 (1898). In that case, the United States Supreme Court held that a boy that was born to Chinese citizens who were residing in the United States became a U.S. citizen at birth. In making the holding, the U.S. Supreme Court determined that the phrase “subject to the jurisdiction thereof” meant that the individual was subject to the laws of the United States.
The bottom line is that birthright citizenship has been decided for well over a century and President Trump is not likely going to change that.
Expansion of Expedited Removal
President Trump signed an order encouraging the expansion and increased use of expedited removal by immigration officers. This order was followed by the publishing of a federal register notice rescinding the prior immigration policy to only use expedited removal for aliens that were apprehended within 14 days of entry and within 100 miles of the border. The new federal notice permits expedited removal anywhere in the U.S. as long as the alien cannot prove continuous presence in U.S. for at least two years.
This order is likely legal. Expedited removal has been a law since 1996. The actual statute only restricts the use of expedited removal to aliens that have been apprehended within two years of entry. There is no geographic limitation. The increased restrictions mentioned above were implemented in 2004 pursuant to a notice issued by the Department of Homeland Security. Therefore, Trump is likely within his authority as the head of the executive branch to order this enforcement policy because it is not inconsistent with the language in the statute.
Indefinite Suspension of Asylum
President Trump signed an order entitled “Guaranteeing the States Protection Against Invasion” indefinitely suspending the entry and continued presence of aliens engaged in the “invasion of the southern border”. President Trump’s order effectively eliminates asylum both at a port of entry and arguably while inside the U.S. if it is determined that the alien is part of the “invasion of the southern border”.
This order is likely illegal. President Trump is attempting to invoke this authority under Article IV of the U.S. Constitution which orders the President to “protect each of the States against invasion” and INA 212(f) which permits the President to “suspend entry of all aliens or a class of aliens” if the President finds that the alien’s entry would be “detrimental to the United States”.
No President has ever attempted to classify illegal immigration as an “invasion” under the Constitution. Surely, this is not what the Framers of the Constitution intended. In addition, while other Presidents have invoked the powers under INA 212(f), no President has issued a blanket order against all classes of aliens from different countries. This order is likely overbroad and is unconstitutional because it directly conflicts with asylum laws enacted by Congress. In addition, a similar order was blocked by federal courts during Trump’s first term.
Call Hubbs Law for all Your Immigration Needs
If you or a loved one needs legal representation for an immigration case, give our office a call. Our attorneys handle all types of immigration (link to immigration page) cases including bond (link to immigration bond page), removal proceedings (link to deportation and removal page), green card adjustments (link to family based petitions), and citizenship (link to naturalization and citizenship page).
Our attorneys, E.J. Hubbs or Erika Hubbs, will thoroughly evaluate you or your loved one’s case. During the consultation, they will be able to properly advise you on the potential benefits or risks of certain actions pertaining to fighting a removal case or applying for immigration relief.
Call today to schedule your consultation at 305-570-4802 or contact us here.
Disclaimer: Please note that by reading this blog you are not entering into an attorney-client relationship with Hubbs Law, P.A. This blog only provides general legal information. Every case is unique and you should request a consultation to ensure that you are getting the correct legal advice for your specific case.