Understanding Birthright Citizenship

 Posted on January 29, 2025 in English

Last week, a federal judge blocked an executive order to end birthright citizenship – at least temporarily. The order would have denied automatic citizenship to children born in the United States to noncitizen parents. The judge who blocked the executive order called it "blatantly unconstitutional." There is currently a four-state (Arizona, Illinois, Oregon, and Washington) lawsuit challenging the move to end birthright citizenship, and this hearing was only the first.

The lawsuit argues that the executive order violates the 14th Amendment, which guarantees citizenship to all those born on U.S. soil. Legal precedent dates back to a landmark 1898 Supreme Court case, United States v. Wong Kim Ark. This lawsuit is one of several, filed by 22 states and immigrant advocacy groups, all of which point out the harm to children who could be effectively left "stateless."

Immigration issues have always been complex and may become even more so. If you are worried that this order or any others coming from the new administration could harm you or your family, it is important that you speak to an experienced Herndon, VA immigration attorney. You may also have questions about what to do in the event you or a family member are targeted for removal/deportation.  

The History of Birthright Citizenship

The 14th Amendment, adopted on July 9, 1868, overrode the 1857 Supreme Court decision in Dred Scott v. Sandford, which denied citizenship to African Americans, whether they were born in the United States or not. Pursuant to the 14th Amendment, along with the Immigration and Nationality Act of 1952, a person born in the United States automatically acquires citizenship.

These laws apply to the territories of Puerto Rico, the U.S. Virgin Islands, the Northern Mariana Islands, and Guam as well as to the United States. The Wong Kim Ark ruling in 1898 affirmed the citizenship of a child born to Chinese immigrants in San Francisco despite the restrictive immigration laws in place at the time, like the Chinese Exclusion Act.

Birthright citizenship was extended to Native Americans born in the United States under the 1924 Indian Citizenship Act. In 2016, an estimated 6 percent of all births across the U.S. were to unauthorized immigrants.  

Should Birthright Citizens Be Worried?

Right now, birthright citizens in the United States are not at risk of deportation. Add to this that the new administration has said that they may not make the issue retroactive. If the birthright citizen issue gets past judges and the Supreme Court but is not made retroactive, then only children born from this point on to parents who are not U.S. citizens will be denied citizenship and potentially deported.

What Should Immigrants Be Doing Right Now?

Regardless of the reason a person is an undocumented immigrant, he or she should take immediate steps to prepare in the event of deportation efforts. Each family should have all necessary documentation in a location where it can be easily found. Copies of applicable documents should be regularly carried with the individual.

Individuals should notify a trusted family member of any plans and talk to his or her family about what to do if a family member is detained by ICE. Those with school-age children should leave a list of trusted adults who are authorized to pick up the children. Most importantly, every undocumented immigrant should speak with an immigration attorney who can assess his or her situation and offer proactive steps that can be taken.

If ICE comes to an immigrant’s workplace, it is important to remain calm, never provide false documentation, be polite, but offer no information and ask to speak to an attorney. Immigrants who are arrested by ICE should never sign anything without first speaking to an attorney and should keep important numbers with them at all times.   

Contact a National Immigration Attorney

If you are worried about deportation, contact a Fairfax County, VA immigration attorney from Immigration Legal Advisors, PLLC who can help you get your family’s immigration papers in order or give you advice or assistance regarding potential deportation. We are a full-service, supportive law firm with 20-plus years of experience. We speak English and Spanish. Call 571-441-2233 to schedule your free consultation.