Immigration was a key focus of the dozens of executive orders signed by the Trump Administration.
On its first day in office, the Trump administration published 46 executive orders dealing with a broad range of issues, including several which order significant changes that will impact immigration law, as follows:
Executive Order “Protecting the Meaning and Value of American Citizenship”
- Reinterprets the 14th Amendment to the United States Constitution to state that persons born in the United States are not “subject to the jurisdiction thereof,” and therefore are not U.S. citizens at birth, if:
- They are born to a mother who is unlawfully present in the U.S. and the father is not a U.S. citizen or Lawful Permanent Resident (LPR) at the time of the child’s birth.
- They are born to a mother who is in the U.S. on a temporary status (such as on a visitor, student or work visa) and the child’s father is not a U.S. citizen or LPR at the time of the child’s birth.
- This order states that it will go into effect within 30 days of the order being signed, or on February 19, 2025, and applies to all children born on or after that date.
- This is a deeply unconstitutional provision and has already been challenged in federal district court by the American Civil Liberties Union (ACLU).
- If taken at face value, declaring that foreign nationals who are physically present within the United States are not “subject to the jurisdiction of the United States” would mean that they also cannot be prosecuted for criminal activity within the United States.
- The order also makes no provision for the immigration status of children born in these circumstances, which means that they would be undocumented at birth, even if they are born to parents who are legally present in the United States.
- If not enjoined, this order would be particularly devastating to Indian nationals who often spend 20-30 years legally present in the U.S. before obtaining LPR status due to visa number limitations. This rule would mean that if they have children during those years, they would not only be born undocumented but also would likely age out of eligibility for permanent resident status as their parents’ dependents.
- This order also defines “mother” and “father” as the female and male biological progenitors of the child, which raises questions about whether the United States Citizenship and Immigration Services (USCIS) policy indicating that children born through Assisted Reproductive Technology are considered to be born “in wedlock” for immigration purposes.
Executive Order “Declaring a National Emergency at the Southern Border of the United States”
- Declares that a “national emergency” exists at the southern border of the United States.
- Invokes the National Emergencies Act and 10 USC §12302, which allows up to 1 million Ready Reserve troops to be deployed for a period of up to 24 consecutive months to address the national emergency.
- Authorizes provision of detention space, transportation and other logistics services in support of civilian-controlled law enforcement operations.
- Calls for the construction of additional physical barriers along the southern border.
Executive Order “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States”
- Declares that, “It is the policy of the United States to ensure that the Armed Forces of the United States prioritize the protection of the sovereignty and territorial integrity of the United States along our national borders.”
- Gives the Secretary of Defense 10 days to deliver to the President a plan to “seal the borders” by “repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities,” using the United States Northern Command forces.
Executive Order “Securing Our Borders”
- Similar to the above-noted executive orders, cites the existence of a “large-scale invasion at an unprecedented level” at the southern border.
- Establishes a national policy to “take all appropriate action to secure the borders” by:
- Establishing a border wall.
- Deterring and preventing the entry of “illegal aliens” into the U.S.
- Detaining, “to the maximum extent authorized by law,” those foreign nationals apprehended “on suspicion” of violating any federal or state laws, until they are removed from the U.S.
- Promptly removing all foreign nationals who enter or remain in violation of federal law.
- Pursuing criminal charges against “illegal aliens” who “violate the immigration laws,” as well as against those who facilitate their unlawful presence in the U.S.
- Obtaining “complete operational control” of the U.S. borders.
- Calls for deployment of military and civilian officers to the southern border.
- Calls for detention of foreign nationals until they are removed from the U.S. and for termination of “catch and release” practices.
- Orders resumption of Migrant Protection Protocols, requiring individuals are returned to Mexico while awaiting removal proceedings.
- Orders the Department of Homeland Security to stop using the CBP One app to facilitate scheduling of asylum applications at ports of entry along the southern border.
- Orders the termination of all categorical parole programs that are “contrary to the policies of the United States” as established in the January 20, 2025 executive orders, including the program for Cubans, Haitians, Nicaraguans and Venezuelans.
- This provision is likely to lead to delays with processing all individuals returning to the U.S. using advance parole, as CBP must determine which types of advance parole are deemed “contrary to the policies of the United States.”
Immigration was a key campaign point for the President Trump and there will likely be more changes enacted by the Trump administration in the coming weeks and months. The potential for legal battles to follow executive orders like the ones detailed above may further complicate the matter. It will be vital to stay up-to-date on additional changes to immigration law under the new Trump administration
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For more information, please contact a member of our Immigration Practice Team or the Phillips Lytle attorney with whom you have a relationship.