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IMMIGRATION FEBRUARY 21, 2025 | The Indian Eye 34

The False Distinction Between Legal

and Undocumented Immigrants in the

Debate on Birthright Citizenship

BY CYRUS D. MEHTA AND KAITLYN Amendment, has long guaran- tic, and often false, one. A non- fully, these children are subject Discretion in the enforce-
BOX* teed children born in the U.S. citizen who entered the U.S. with to deportation. But there is no ment of immigration law em-
the right to U.S. citizenship, re- a valid visa can easily fall out of assurance that a child subject to braces immediate human con-
onald Trump’s executive gardless of the immigration sta- status, while a path to U.S. citi- deportation will ever be deport- cerns. Unauthorized workers
order restricting birth- tus of their parents. The Trump zenship may eventually become ed. An illegal entrant might be trying to support their families,
Dright citizenship, which administration is incorrectly as- available to an individual who granted federal permission to for example, likely pose less
we analyzed in a previous blog, serting in its executive order that was previously undocumented. continue to reside in the country, danger than alien smugglers or
has now been temporarily en- the 14th Amendment was never Indeed, legal and “undocu- or even become a citizen. aliens who commit a serious
joined and is the subject of multi- intended to confer birthright cit- mented” immigration are points The Court affirmed that an crime. The equities of an indi-
ple lawsuits. The executive order izenship to parents who are not on a continuum rather than dis- undocumented individual living vidual case may turn on many
has also brought to light the false lawfully in the US or to parents crete concepts. An entirely un- in the United States “is surely ‘a factors, including whether the
dichotomy between “legal” and who may be lawfully in the US documented individual who is person’ in any ordinary sense of alien has children born in the
“undocumented” immigrants, but on temporary visas. Many placed in removal proceedings that term,” “[w]hatever his sta- United States, long ties to the
obscuring the nuance of U.S. people participating in the de- can seek cancellation of removal tus under the immigration laws.” community, or a record of dis-
immigration laws. [Although bate on social media feel that and become a permanent res- Plyler v. Doe, 457 U.S. 202, 210 tinguished military service. Some
the Trump administration has birthright citizenship should only ident. Similarly, an individual (1982). discretionary decisions involve
replaced references to undocu- be conferred by parents who are who entered the U.S. on a non- Moreover, some individuals policy choices that bear on this
mented individuals with the term legally in the US, and if a tweak immigrant visa and overstayed it who do currently have a lawful Nation’s international relations.
“illegal”, we use “undocument- has to be made in Trump’s execu- for many years could meet and status may nonetheless be autho- Returning an alien to his own
ed” here to refer to individuals tive order, it should only remove marry a U.S. citizen spouse, thus rized to remain in the U.S., as we country may be deemed inap-
who currently have no legal im- the restrictions on parents who becoming eligible to apply for highlighted in another prior blog. propriate even where he has
migration status in the U.S.] are legally in the US but on tem- permanent residence. At times, An asylum applicant is autho- committed a removable offense
“Legal” and “undocument- porary visas. The executive order Congress bestows such perma- rized to remain in the U.S. and or fails to meet the criteria for
ed” immigrants alike are subject is unconstitutional in its entirety nent residency to previously-un- apply for employment authori- admission. The foreign state may
to the jurisdiction of the Unit- and should be struck down. documented individuals through zation 150 days after filing the be mired in civil war, complicit in
ed States pursuant to the 14th This distinction between section 245(i) or the LIFE Act. asylum application even though political persecution, or endur-
Amendment. The concept of “legal” and “undocumented” Moreover, one thinks of he has not yet been granted asy- ing conditions that create a real
jus soli, enshrined in the 14th immigrants is an overly simplis- an undocumented immigrant lum and would not qualify as an risk that the alien or his family
as a person who entered asylee under 8 CFR 245.1(d)(1) will be harmed upon return. The
the United States without (iii). Similarly, an individual who dynamic nature of relations with
inspection or who came has filed an I-485 application other countries requires the Ex-
to the US legally on a visa to adjust status is authorized to ecutive Branch to ensure that en-
and overstayed. Howev- remain in the U.S. even if she forcement policies are consistent
er, the term is broader to does not have a valid, underlying with this Nation’s foreign policy
encompass persons who nonimmigrant status. An indi- with respect to these and other
were previously unautho- vidual in removal proceedings is realities.
rized and who have been authorized to remain in the U.S. Drawing a distinction be-
authorized to stay such as and seek relief until the conclu- tween those on temporary visas
recipients of the Deferred sion of the proceedings. Even a and those who are lawful per-
Action of Childhood Arriv- noncitizen who has been ordered manent residents also ignores
als (DACA) program, ap- removed but filed petition for re- the practical reality that many
plicants for Temporary Pro- view in circuit court can apply for nonimmigrants are “Americans
tected Status (TPS), those work authorization and continue in waiting”. A nonimmigrant in
who have pending asylum to reside in the U.S. during the H-1B status has a clear path to
applications and applica- pendency of the appeal. becoming a permanent resident,
tions for other relief such as In Arizona v. United States, and eventually a U.S. citizen,
under the Violence Against 567 U.S. 387 (2012), the Supreme through sponsorship by an em-
Women Act (VAWA) or Court emphasized the importance ployer but has to wait for many
crime victim U visas. There of discretion in removal proceed- decades due to backlogs in their
are also those who are on ings, explaining that it is not al- green card category. DACA re-
supervised release or who ways appropriate to place even an cipients who have lived almost
have obtained stays of re- entirely undocumented individual their entire lives in the U.S. may
moval and eligible for em- in removal proceedings: have few ties to any other coun-
ployment authorization Congress has specified try and could become lawful per-
m of year after year. which aliens may be removed manent residents through mar-
In 1982 in Plyler v.
CYRUS D. MEHTA & PARTNERS PLLC Doe, 457 US 202 (1982), a from the United States and the riage to a U.S. citizen or LPR
spouse, or through an employ-
procedures for doing so. Aliens
landmark Supreme Court may be removed if they were in- ment-based category.

case which held children admissible at the time of entry, On the other hand, a non-
could not be deprived of have been convicted of certain citizen who comes to the United

  a public education on the crimes, or meet other criteria States with a valid visa may not
   
­ basis of their immigration set by federal law. See §1227…A could later overstay their visa,
€
‚  
status, the Court eloquently principal feature of the removal thus becoming “undocumented”.
explained that an individu- system is the broad discretion Violations of a nonimmigrant
al’s undocumented status is exercised by immigration offi- visa also render a noncitizen’s
cials…Federal officials, as an ini-
immigration status ambiguous.
often temporary, stating:
To be sure, like all tial matter, must decide whether An H-1B worker who works
2 6th Floor persons who have entered it makes sense to pursue removal from home and moves across

    the United States unlaw- at all… the country before an amended
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