'Planned a Baby Sooner': Birthright Citizenship Has Indian Immigrants on Edge

Immigration lawyers told The Quint that if the executive order is implemented, it will create "unprecedented chaos".

Ending the birthright citizenship will deny citizenship by birth to those born to undocumented people within the US and to the children of those on student, work, tourist and certain other types of visas.

(Photo: Kamran Akhter/The Quint)

Reet Sachdeva (name changed on request), an Indian-origin software engineer based in Providence, Rhode Island, moved to the US around six years ago. She and her husband, also an Indian, are both on H-1B visas.

The 36-year-old is pregnant with her second child—something that she confesses to having planned sooner than later so that the child can be born before the birthright citizenship ban, which was one of US President Donald Trump's key poll promises, comes into force.

"We wanted to have the baby as soon as we could. My due date is in July-end, so hopefully the baby will be born before the nationwide injunction is lifted," she tells The Quint.

Legal battles over Trump’s executive order to end birthright citizenship continued last week when a New Hampshire federal district judge issued a preliminary injunction that will prevent federal officials from enforcing the order nationally. The injunction is on hold for seven days to allow the Trump administration to appeal.

The 10 July order comes days after the Supreme Court decision on 27 June which limited the ability of lower court judges to issue universal injunctions to block executive orders nationwide. That ruling was seen as a victory for Trump as it removes yet another impediment on the path to the administration's prospective birthright citizenship ban.

Ending the birthright citizenship will deny citizenship by birth to those born to undocumented people within the US, but also to the children of those on student, work, tourist and certain other types of visas.

'I'm Praying for the Baby To Be Born Before the Injunction is Lifted'

In her eighth month of pregnancy, Reet has been encountering anxiety pangs and sleepless nights over the last few days.

"Most people are focusing on the experience of illegal immigrants, but there is a large population that is included in the executive order (to ban birthright citizenship) who have a legal temporary status here," Reet says while speaking to The Quint. "It’s especially pertinent for Indians since so many are on H-1B visas, which is what our current status is here."

Reet had had her first child in March 2024. She wanted to wait for at least two years before planning another baby, but she wanted her second child to be born a US citizen.

When Trump had announced the executive order on his first day back in office in January, as many as 22 states had sued the government in a bid to block the birthright citizenship ban from coming into place. Rhode Island, where Reet and her husband reside, was among the 22 states.

While the Supreme Court has stated that Trump's executive order will go into effect for anyone not a party to the lawsuit within 30 days, at least theoretically Reet and her family are safe since Rhode Island is a party to the lawsuit.

However, given the precarious climate that immigrants in the US find themselves in, even that has done little to stem her anxiety.

"It’s hard to say what will happen once the nationwide injunction is removed since there aren't any directives from official sources about how this is going to be implemented and where. So it’s all very confusing. No one knows what the status of the children born after will be. Obviously we want to avoid that if possible. But, right now, there's just a lot of uncertainty."

Reet Sachdeva

Birthright Citizenship: A Dozen Different Interpretations

The anxiety of expectant mothers and immigrants in general is compounded by the level of confusion concomitant with the Supreme Court's recent order on birthright citizenship. The fact of the matter is, people are unsure about how such a ban could impact them, or whether it could impact them at all.

While some believe that they will be protected since they reside in a state which is one of the plaintiffs in the case, others who live in states which are not plaintiffs are mulling whether to move to another state in a bid to claim citizenship for their child.

Whether any of these measures will work is hard to say, at least for the moment.

Let us first decipher the basics of the Supreme Court's judgment.

1. Implications of the ruling

Some believe that the recent ruling is the final nail in the coffin for those expecting Trump's executive order to be struck down. This is not so.

The court was hearing a plea against "nationwide injunctions" against birthright citizenship ordered by the federal district courts of three states: Maryland, Massachusetts and Washington.

Ravneit K Brar, an immigration lawyer and member of the American Immigration Lawyers Association (AILA), says that the Supreme Court ruling is not a ruling on birthright citizenship or the substantive part of the law at all.

"What the Supreme Court has done is, they've told the federal courts that they cannot extend their injunction to the entire nation, and have to restrict their relief only to the litigant(s) who brought their case to them. This essentially means that you can't have a nationwide injunction wherein millions of other people are affected," she tells The Quint.

Let's simplify further.

Say, for instance, if a resident of New York goes to a federal court in his state and asks for relief in some matter, then the court can only grant relief to that person. The relief can't be granted to people residing in some other state(s), even though they may have the exact same problem.

Hence, the Supreme Court has essentially curtailed the powers of federal district courts from pronouncing nationwide orders that could have ramifications for people across the country.

2. Opinion of dissenting judges

Out of nine Supreme Court judges hearing the recent case, three of them – all liberals – issued a dissenting opinion.

Justice Sonia Sotomayor, the seniormost liberal judge on the bench, stated in her note of dissent that the majority "ignores entirely" whether Trump's executive order is constitutional, instead focusing only on the question whether federal courts have the equitable authority to issue universal injunctions.

"The gamesmanship in this request is apparent and the government makes no attempt to hide it. Yet, shamefully, this court plays along," Sotomayor added.

Her note of dissent is rooted in the 14th Amendment to the US Constitution, which states:

"All persons born or naturalised in the US and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside."

The Trump administration, however, has argued that providing automatic citizenship is not the correct interpretation of the 14th Amendment as it encourages "birth tourism" by pregnant women who come to the US to give birth and ensure citizenship rights for their children.

To push its case forward, the government has based its executive order on the 'subject to jurisdiction' clause of the 14th Amendment.

Firstly, what does 'subject to jurisdiction' mean?

It means that anyone living in a certain jurisdiction of the US is subject to that jurisdiction. If they do something illegal, they can be hauled by the courts. If they want relief in some matter, they can approach the courts of that jurisdiction.

However, the Trump government is attempting to prove that the 'subject to jurisdiction' clause excludes the children of people who are residing in the country temporarily, i.e. visa holders.

"What the executive order states is that if anyone born of a person who is undocumented i.e. doesn't have citizenship or permanent residency, they are not subject to jurisdiction. Only those who are born in the US or hold citizenship rights will be subject to jurisdiction," Kaur says.

If this interpretation passes legal scrutiny, the children of lakhs of immigrants who are yet to become citizens may be labelled as "aliens" and will become liable to be deported.

3. Is the birthright citizenship ban a recipe for bureaucratic disaster?

Another unanswered question is how the birthright citizenship ban will be implemented and what ramifications it will have on the US' administrative and judicial structure.

To start with, following the Supreme Court's ruling barring nationwide injunctions by lower courts, anybody who wants to challenge the birthright citizenship ban will have to bring a separate litigation, which will burden an already burdened US legal system.

"Courts will become clogged and it will be difficult to get any result whatsoever. One court may say something, and another court may say something else. Every judge is different, every jurisdiction is different. Some people in the judiciary have leanings towards the left and others towards the right. So it's not going to be uniform. Everyone is going to be sailing in their own boat now."

Ravneit K Brar

Another issue has to do with the jurisdiction of the birthright citizenship ban – will it be implemented nationwide or only in specific states?

According to Srinivas Reddy, a legal consultant at an immigration law firm in Virginia, the executive order will create "unprecedented chaos" as for the first time in US history, the citizenship status of a newborn would no longer be automatic, but would be decided based on the state in which they are born.

"There are 94 federal district courts in the US. If some courts issue territorial injunctions that block the executive order within their jurisdictions while others allow it to proceed, a child’s citizenship status could depend not on the fact of their birth on US soil but on the geographical location of the hospital in which they are born," he claims.

"This fragmented approach creates a two-tiered system of citizenship, where one child is recognised as a citizen and another – born the same day in a different state – is not."

Srinivas Reddy

Reddy adds that if the executive order comes into place, the US would likely have to create a national registry of citizens, something it has never had. Further, every hospital, state agency, and government office would be responsible for verifying the citizenship status for newborns, which may lead to errors.

"Innocent US-born babies could be wrongly denied citizenship due to bureaucratic mistakes, paperwork errors, or misunderstandings of complex immigration laws. Correcting these mistakes would require lengthy legal battles, adding further strain to families and the legal system," he says.

Ravneit Brar, however, says that the US government and different courts will take certain steps to ensure that there is uniformity in any prospective ban on birthright citizenship, as a difference on this matter among states would create a "bureaucratic nightmare".

"Firstly, immigration is a federal subject, but birth and death is a state subject. Now a state can only give you a birth certificate. But whether you are a citizen or not can only be decided by the federal government. States, per se, cannot decide whether a person is a citizen or an alien," she says.

Another legal remedy to maintain uniformity when it comes to birthright citizenship, according to lawyers, is to initiate a class action lawsuit instead of individual cases.

A class action lawsuit is a legal proceeding wherein one or more plaintiffs file a lawsuit on behalf of a larger group of people, known as a class, who are collectively seeking relief or damages in a legal matter.

"If a court issues relief to one individual, that can turn into a class action. Someone else will say I have the same issue, and so I want to join the class action," Brar says.

"But some children being aliens, and others citizens is going to be a mess. I don't think the government will allow something like this. Courts will also not let such chaos take place."

Ravneit K Brar