The federal court’s preliminary injunction against President Donald Trump’s second birth‑right citizenship executive order has been sidestepped by the Department of Homeland Security (DHS), which moved one of the order’s categories into federal regulation despite the court’s ruling.
Injunction scope
- Judge: U.S. District Judge Deborah Boardman (Western District of Washington)
- Date of injunction: September 2, 2024
- Case: CASA, Inc. v. Trump – class‑wide preliminary injunction covering the “certified class.”
- Certified class definition:
- Any child born in the United States after February 19, 2025 to a mother who was unlawfully present or lawfully but temporarily present.
- The father must not be a U.S. citizen or lawful permanent resident at the time of birth.
- Enjoined parties: Secretary of State, Attorney General, Secretary of Homeland Security, Commissioner of Social Security (the President was not enjoined).
- Surviving provisions:
- Section 2(d) – births in territories where federal law does not confer citizenship.
- Section 3(b) – requirement that every agency publish implementation guidance within 30 days.
Government’s response
- DHS interim final rule: Filed September 4, 2024 (effective the same day); published in the Federal Register on September 9, 2024 (docket USCIS‑2026‑0496).
- Authority used: Foreign affairs exception and “good cause” to bypass notice‑and‑comment.
- Key change: Replaces the narrow term “foreign diplomatic officer” with “foreign government employee.”
- Includes accredited diplomats, embassy/consulate staff, and officials of foreign governments or international organizations who enjoy immunity.
- Excludes personal employees hired by individual officials, third‑country nationals, and officials traveling in a private capacity.
- Regulatory citation: Amended 8 CFR 101.3(a)(1).
- Effect: A child born in the United States to a foreign government employee is placed outside U.S. jurisdiction for birth‑right citizenship unless one parent is a U.S. citizen. Such children may apply for lawful permanent residence on Form I‑485, with an approved record retroactive to the date of birth.
- Limitation: DHS acknowledges it will not apply the rule to members of the certified class while the Maryland injunction remains in force; the agency must first obtain relief from that injunction.
Unresolved issues
- Birth‑tourism order (EO 14419): Targets visa misuse rather than citizenship. It is not covered by the injunction, but implementing guidance has not yet been published, leaving consular and border officers without a formal standard. The State Department’s Birth Tourism Prevention Task Force reported over 600 visa revocations as of August 12, 2024.
- New Hampshire motion: Plaintiffs in the earlier Barbara case filed a motion on August 11, 2024, asking the New Hampshire district court to confirm that its July 2025 injunction already applies to the new order or to issue a fresh injunction. No ruling is on the public docket.
- Future of the injunction: Judge Boardman invited the government to move to modify or dissolve the injunction after agency guidance is issued. The deadline for that guidance under EO 14418 was September 5, 2024.
Practical implications
- For families of foreign government employees: Children born in the U.S. after September 4, 2024 will not automatically receive citizenship unless a U.S. citizen parent is present. They must pursue permanent‑resident status via the standard adjustment‑of‑status process.
- For birth‑tourism operators: Enforcement continues under EO 14419, but without published guidance, the criteria for visa revocation remain discretionary.
- For immigration practitioners: The coexistence of a court injunction and an agency rule creates uncertainty; any advice to clients must note that the rule cannot be applied to the certified class until the injunction is lifted or modified.
The clash between the judiciary’s block and DHS’s regulatory maneuver underscores ongoing legal uncertainty around the Trump administration’s attempts to curtail birth‑right citizenship.
Source article: www.imidaily.com
