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Birthright Citizenship

With President Trump’s recent announcement on his plans to end birthright citizenship through an executive order, questions have arisen in recent news as to both the underlying reasons and the practical implementation of such a declaration.

President Trump asserts that the U.S. is “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States.” While it is true that the majority of the world’s nations do not offer automatic citizenship to those born within their borders, there are at least 30 other countries, including Canada and Mexico, where children born on their soil are granted automatic birthright citizenship. On the other hand, over the past few decades, countries that once did so, including Australia and the U.K., have repealed those policies, with others considering changes.

Children born in the U.S. are granted automatic birthright citizenship through the application of the 14th Amendment’s Citizenship Clause, which states “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The application of the Citizenship Clause to children of foreign nationals was addressed by the Supreme Court in 1898 in United States v. Wong Kim Ark, in which the Court ruled 6-2 that a child born in the U.S. of Chinese parents, who at the same time had a permanent domicile and residence in the U.S., automatically became a U.S. citizen. The Court however did not address whether this would extend to children born in the U.S. to parents that were present without valid status.

Although it may not be possible to change the Constitution through a planned executive order, it is within the power of Congress to define the scope of the Citizenship Clause through legislation without amending the Constitution (as long as, of course, it does not run afoul of it). Bills have been introduced from time to time in Congress, challenging conventional interpretation of the clause, albeit unsuccessfully (including the Birthright Citizenship Act of 2009 and Birthright Citizenship Act of 2011). On the heels of President Trump’s announcement, Senator Lindsey Graham stated that he would introduce legislation in Congress to accomplish the objectives of the proposed executive order.

While it is almost certain that there will be strong pushback to the idea of eliminating birthright citizenship, the thought that it could one day become reality brings into the question how this might be implemented. United States Citizenship and Immigration Services (USCIS), the arm of the U.S. Department of Homeland Security that administers the country’s naturalization and immigration systems, would be dealing with a new level of bureaucracy to determine whether at least one parent was in the U.S. legally at the time of birth.

Given the current environment and attitude towards immigration, one may question the policy objectives behind the elimination of birthright citizenship. If the aim is to prevent those granted automatic citizenship after their parents entered without inspection or valid status from receiving benefits as a U.S. Citizen, including someday petitioning for their once-or currently-undocumented parents, how does it address those that come on a valid visitor (or other non-immigrant) visa and do the same? How would this affect parents who entered without inspection or valid status but were later granted valid status through the asylum process? Many questions are left unanswered, and it remains to be seen if and how plans for the elimination of birthright citizenship will proceed.

The United States has long been a worldwide leader, setting examples for other countries, and should continue to do so. The American Dream is rooted in the Declaration of Independence, which proclaims that all men are created equal with the right to life, liberty and the pursuit of happiness. James Adams defined the American Dream in 1931 in his book The Epic of America: “that dream of a land in which life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement . . . a dream of social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position.” Thomas Wolfe said, “…to every man, regardless of his birth, his shining, golden opportunity ….the right to live, to work, to be himself, and to become whatever thing his manhood and his vision can combine to make him.” The removal of birthright citizenship, disadvantaging innocent children born here through no fault of their own, seems to fall short of these ideals.

– Michael S. Yu

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Invisible Wall

The term “invisible wall” is a well-known term among immigration attorneys. While the current administration calls for the construction of a physical wall, the administration has already erected an invisible wall which appears to reduce and discourage, not only illegal immigration, but legal immigration as well. While one of the stated goals of the administration is to reduce regulations in order to promote businesses, there is one area where the reverse appears to be taking place. In the field of skills-based immigration law, the administration’s new policies, guidelines, and rules are making it more difficult for American businesses to bring necessary talent to the United States. This is being accomplished through new bureaucratic obstacles and excessive requirements that deter American corporations from bringing engineers, software and computer specialists, and other technical personnel, to the United States. Although the administration is framing these regulations as a necessary measure to protect U.S. workers, the regulations may also reflect a political statement about the administration’s attitude toward immigrants.

The concept of protecting U.S. workers is difficult to argue against, and is a concept many want to enforce. However, one could also argue that there are times where U.S. companies may have a hard time finding available local U.S. employees for highly-skilled occupations, as the U.S. employees tend to be currently employed elsewhere. Or that, even if the talent brought from overseas is occupying a spot that otherwise could be occupied by a U.S. worker, the foreign employee could help enhance the U.S. company’s products, make the company more competitive worldwide, improve exports, help businesses remain viable, and create new innovations and jobs for U.S. workers. Such arguments would also support the concept of protecting U.S. workers.

The majority of reputable studies examining the effects and impacts of foreign workers on the U.S. economy have determined that foreign talent brought to the United States ultimately helps our economy and produces a large number of new jobs for U.S. workers. As anecdotal evidence, some of the largest U.S. entities were, and are, created by immigrants or children of immigrants, for example, Apple or Tesla. Such companies continue to hire many U.S. workers.

The issue with the potential negative consequences of the invisible wall is that its effect will not be seen for years to come, and is slow to materialize.  The administration’s new regulations and policy surrounding immigration may not have a tangible effect on the U.S economy within the next year or two, but would have an effect within a decade or two – long after those who are creating these policies could be held accountable for the decisions they are making today.

The slow materialization of the effects of the invisible wall increases the difficulty of the opposition to the invisible wall, and increases the difficulty for those who may believe the studies which reflect that immigration adds a substantial value to our society and to our economy. The only hope is that more reasonable attitudes will prevail, and the current impediments to immigration (which has been the cornerstone to our society since Independence) are temporary and that our view towards immigration will be restored to its normal, optimistic vision.

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Temporary Protected Status

On October 3, 2018, Federal Judge Edward M. Chen presiding over the United States District Court of the Northern District of California made a groundbreaking decision to grant a preliminary injunction to beneficiaries of Temporary Protected Status (TPS) from El Salvador, Haiti, Nicaragua, and Sudan. Temporary Protected Status, established by Congress in the Immigration Act of 1990, is a designation given by the Secretary of Homeland Security to countries that have been destabilized by catastrophe (war, natural disaster, epidemics, etc.) During the time that the Secretary of Homeland Security designates a country for TPS, TPS beneficiaries are not removable from the United States, can obtain employment authorization, and can be granted travel authorization. TPS grants protections to over 300,000 people in the U.S. from El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. Through the end of 2017 and beginning of 2018, the Trump administration announced the end of TPS designation for El Salvador, Honduras, Haiti, Nicaragua, and Sudan. In response, multiple lawsuits were filed in U.S. District Courts across the United States against the administration’s decision, alleging that the administration engaged in racially discriminatory practices in choosing to end TPS designations for certain countries and violated the Administrative Procedure Act (APA), the 1946 federal statute that governs the way in which administrative agencies of the federal government may propose and establish regulations. On January 24, 2018, the National Association for the Advancement of Colored People (NAACP) filed a lawsuit against the Department of Homeland Security (DHS) in the U.S. District Court of the District of Maryland, alleging that the decision to end TPS designation for Haiti was intended to racially discriminate against Haitians, violating the Equal Protection and Due Process Clauses of the Fifth Amendment. On February 22, 2018, TPS beneficiaries from El Salvador, Haiti, and the Massachusetts immigrant’ rights organization Centro Presente filed a similar lawsuit against the DHS in the U.S. District Court of the District of Massachusetts. Lawsuits were also filed on March 12, 2018 in the U.S. District Courts of the Northern District of California, on March 15, 2018 in the Eastern District of New York, and on March 23, 2018 in the District of Maryland by TPS beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan and U.S. citizen children of TPS beneficiaries.

These lawsuits are currently ongoing and have been challenged multiple times by the administration, which claims that the Courts do not have jurisdiction to hear these cases. However, Federal Judges from the U.S. District courts of the District of Massachusetts, the Northern District of California, and the Eastern District of New York have all rejected the federal government’s Motions to Dismiss, citing the very real possibility of both constitutional and procedural violation by the DHS. On August 23, 2018, the TPS beneficiaries from Northern California filed a preliminary injunction to stop the government from terminating TPS while the lawsuit is ongoing and to stop the government from beginning deportation proceedings for TPS beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan, which could have begun as early as November 2, 2018. On October 3, Judge Edward M. Chen granted this preliminary injunction, enabling TPS holders to maintain their status until further decisions have been made, protecting hundreds of thousands of people in the United States from being suddenly and forcibly removed. A Case Management Conference is set for October 26. Meanwhile, the United States Citizenship and Immigration Services has not yet published instructions or guidance reflecting the injunction. Instead, USCIS states on their website that “Additional guidance with respect to evidence regarding TPS status and employment authorization is forthcoming.” We eagerly await more news.

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