Atty Lou Tancinco shares her latest updates via our quarterly newsletter.
Dear TLAW Subscribers:
The landscape of immigration law is constantly evolving, and recent policy shifts have brought significant changes and heightened uncertainty. To help you stay informed, our latest quarterly newsletter offers timely insights into key immigration issues.
In this edition, we focus on empowering individuals with knowledge about their rights, particularly in the event of an encounter with Immigration and Customs Enforcement (ICE). We address crucial questions such as: What are your rights if a friend or family member is detained? What recourse is available if there is no final order of removal?
We also delve into other critical topics, including:
We encourage you to take a moment to review these informative articles and updates. Staying informed is crucial for navigating the complexities of immigration law.
We remain committed to advocating for just, fair, and humane immigration reform. In the meantime, we urge you to be vigilant in asserting your rights. Our firm is here to provide guidance and support. If you have any questions or require legal assistance, please do not hesitate to contact us.
Despite being in the U.S. Constitution’s, birthright citizenship has come under attack and is being ridiculously threatened with repeal.
The 14th Amendment to the U.S. Constitution unequivocally 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.” For over a century, this constitutional guarantee has conferred citizenship on individuals born within U.S. territory, irrespective of their parents’ immigration status. Despite its clarity, birthright citizenship has recently come under attack, raising critical legal and ethical questions.
Can a Constitutional Amendment Be Repealed by Executive Order?
Today President Donald Trump signed an executive order repealing birthright citizenship. Legally, this claim warrants scrutiny. A constitutional provision cannot be overturned by executive order. To amend the Constitution requires a rigorous process: a two-thirds majority vote in both the House and the Senate, followed by ratification from three-fourths of the states.
Previous attempts to deny citizenship to U.S.-born children of undocumented immigrants through state and federal legislation have consistently been deemed unconstitutional. Even if a Republican-controlled Congress were to pass such a law, it would undoubtedly face significant legal challenges in the courts, given its conflict with established constitutional protections.
A Misguided Approach to Illegal Immigration
Proponents of repealing birthright citizenship argue that it incentivizes illegal immigration. They believe withholding automatic citizenship from the children of undocumented immigrants could serve as a deterrent. Some extremists even frame the issue as a national security concern, suggesting the potential for exploitation by terrorists—an argument that strains credulity.
However, eliminating birthright citizenship is far from a viable solution. In fact, it could exacerbate the challenges posed by illegal immigration. Without birthright citizenship, children born to undocumented immigrants would lack legal status, creating a vulnerable, stateless population. These individuals, unable to fully participate in society, would face heightened risks of exploitation and involvement in criminal activity. Instead of addressing the root causes of illegal immigration, such a policy would compound the problem, leaving both individuals and communities worse off.
The Uphill Legal Battle Against the 14th Amendment
The 14th Amendment serves as a safeguard against arbitrary decisions by politicians about who deserves U.S. citizenship. Its protections extend to everyone born on American soil, ensuring equal treatment under the law. Repealing or undermining this foundational principle would not only provoke significant legal challenges but also carry far-reaching political and social consequences.
President Trump’s proposed repeal would face an uphill battle, requiring a constitutional amendment—an exceedingly rare and complex process. Beyond the procedural hurdles, such an effort would risk eroding the very values of inclusion and equality that underpin the Constitution.
A Counterproductive Proposal
The push to repeal birthright citizenship is not a solution but a diversion. It shifts focus away from addressing the systemic issues driving illegal immigration and instead targets one of the most fundamental principles of American identity. Far from deterring illegal immigration, this proposal would deepen existing challenges, creating a new underclass of individuals without legal recognition.
As a nation, we must carefully weigh the implications of such drastic measures. The debate over birthright citizenship is not just a legal issue but a moral one, reflecting the values we uphold as a society. Rather than dismantling a constitutional cornerstone, the focus should be on comprehensive immigration reform that addresses the root causes of illegal immigration while preserving the rights and dignity of all individuals.
(Atty. Lourdes Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C., law firm established since 1992. She is also a producer/host of Pusong Pinoy sa Amerika, an immigration law informational show aired on GMA Pinoy TV. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)
In a recent development relating to transmission of U.S. citizenship to children born abroad to same sex couples, the U.S. Department of State said that it will recognize birthright citizenship for children born abroad to married parents, as long as one parent is an American citizen. This is a policy change that makes it easier for same-sex couples to pass citizenship on to their children born overseas.
This change in policy was prompted by a series of federal court cases where the court sided with same-sex couples, many of whom married and started families abroad before the U.S. legalized same-sex marriage.
One of the cases filed was that of Laura Fieldne. Laura, a U.S. citizen, is married to her wife, Maria, a Spanish citizen. Maria gave birth to their older daughter, L.F., in Spain with the help of an anonymous sperm donor. Laura, being a U.S. citizen, reported the birth of LF abroad as a U.S. citizen but the registration was denied, stating that the qualifying US citizen parent does not have a biological relationship with the child. In 2020, Laura filed a federal lawsuit against the U.S. Department of State policy as being discriminatory and unconstitutional.
Under the Immigration and Nationality Act, while married couples can give birthright citizenship to their children born abroad if either parent is eligible to do so, children born “out of wedlock” must be biologically related to the eligible citizen parent. The State Department’s policy before was to treat babies born through assisted reproductive technology to same-sex couples as out of wedlock. This policy is certainly unconstitutional disregarding the dignity and equality of the marriages of same-sex couples. How can both same sex couples be blood-related to the child?
The change in policy is a welcome development to the immigrant and LGBTQ community. State Department spokesperson Ned Price said in a press statement that children born abroad to married parents can now have birthright citizenship if they have a genetic or gestational tie to at least one of their parents and if at least one of their parents is an American citizen.
“This updated interpretation and application of the [Immigration and Nationality Act] takes into account the realities of modern families and advances in [assisted reproductive technology] from when the Act was enacted in 1952,” Price said.
IN AN EFFORT to curb illegal immigration, Republican presidential candidate Donald Trump announced his plan, if he is elected, to eliminate this birthright citizenship to children of the undocumented immigrants.
Is this plan an effective solution to resolving the broken US immigration system? Why is it that other Republican candidates do not support Trump’s proposal?
Karen entered the United States on a fiancé visa. Her US citizen fiancé George knew that Karen was a victim of a sexual offense and became pregnant prior to entering the US as a fiancée.
Six months after her arrival in the United States, Karen gave birth to Mariel. Meanwhile, Karen and George had a falling out and never got married.
Mariel is a US citizen by birth while her mother has an expired fiancée visa and is now an undocumented immigrant. Having heard of the proposed elimination of the birthright citizenship, Mariel, who is now in high school is wondering if she will be “deported” and divested of her US citizenship should Trump succeed in getting elected President. What is the likelihood that the birthright citizenship will be eliminated?
Birthright citizenship
Unlike in the Philippines where citizenship is determined by the citizenship of the parents, the United States follow the jus soli principle of citizenship. This means that any individual born in American soil is a US citizen at birth irrespective of the nationality of the parents. This birthright citizenship is not a legal principle but a constitutional right enshrined in the Fourteenth Amendment of the US Constitution.
This birthright was historically intended by the framers of the Constitution to place citizenship status above prejudices based on the fundamental belief that each person is born equal regardless of color, creed or social status.
Proposal
The 14th Amendment withstood many challenges in judicial courts and in Congress. Now that it is being mentioned again, it is not clear how this elimination of birthright citizenship is going to take place. In fact, Trump has not specifically stated in detail which proposal he is going to make.
One of the proposals being floated is that both parents must be citizens or legal residents at the time of each child’s birth. The other extremely cruel proposal is that all US citizen children of immigrants should retroactively prove that they were entitled to their citizenship by proving the legal status of their parents.
Mariel’s fear of being divested of her US citizenship will, in all probability, not be a reality. It is election season and it is not unusual that this birthright citizenship is an issue that is being brought up but there are high legal hurdles that will need to be accomplished before that even happens.
A constitutional amendment, for example, requires the vote of two-thirds of Congress and three-fourths of all the states. With the views on immigration as polarized as it is, getting the two-thirds majority in Congress will be an impossible task. Much less will it be any easier to get three-fourths of the states to approve a constitutional amendment.
(The author may be reached at law@tancinco.com, facebook.com/tancincolaw, tancinco.weareph.com/old or [02] 721-1963.)
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