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IMMIGRATION SEPTEMBER 18, 2026 | The Indian Eye 41

“born in the United States, and sub- born children. To the contrary, it cod- been: a constitutional and statutory moved from the classic ambassadorial
ject to the jurisdiction thereof,” “shall ifies the ordinary rule of citizenship guarantee, not a presidential favor. or diplomatic function, such as a jan-
be nationals and citizens of the Unit- at birth for those born in the United But Trump’s attack on birth- itor employed by the United Nations
ed States at birth”. In other words, States and subject to its jurisdiction. right citizenship is unrelenting. An or an administrative assistant working
even if the government characterizes That is why the administration’s re- interim final rule dated September 4, in a consular mission.
a parent’s trip as “birth tourism,” the newed effort collides not just with 2026 implements the foreign-govern- Fortunately, the administration
child’s citizenship still turns on the the Constitution and Supreme Court ment-employee portion of the 2026 concedes that the interim final rule will
child’s birth in the United States and precedent, but also with Congress’s Executive Order by defining “foreign not take effect so long as the injunc-
subjection to U.S. jurisdiction. Judge own enacted citizenship rule. government employee” to include tion in Casa v. Trump remains in place.
Boardman therefore refused to let the The Constitution does not permit ambassadors, certain embassy or con- But that is cold comfort. Trump’s as-
government evade Barbara by repack- the President to sort U.S.-born children sular employees, persons employed sault on birthright citizenship persists,
aging disapproval of parental motive into favored and disfavored categories by a foreign government in an offi- and he will keep trying to chip away
into a new exception to citizenship. based on their parents’ immigration cial capacity, and persons employed at it with impunity despite Trump v.
Judge Boardman’s opinion recog- status, alleged affiliations, motives for by an international organization that Barbara. The courts must continue to
nizes that the case is about preserving travel, or manner of entry. Barbara re- possesses international-organization hold the line, because citizenship by
the citizenship of children the Su- jected that project, and Judge Board- immunity. That definition is broader birth is a constitutional guarantee, not
preme Court has already declared to man’s injunction makes clear that than the narrow birthright-citizenship a privilege the President may narrow
be citizens. The administration cannot the administration cannot revive it by exception traditionally associated with by executive fiat against children born
use a new executive order to do indi- administrative ingenuity. Birthright foreign diplomatic officers, and it may to parents in the United States he does
rectly what Barbara forbids directly. citizenship remains what it has long sweep in people whose roles are far re- not like.
As Judge Boardman explained, the ________________________________________________________________________________________________________________________________________________________________________________________________
relevant question was whether the Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
plaintiffs were entitled to preliminary & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
relief because the order was likely mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
unconstitutional as applied to the cer- Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
tified class, and “[t]he answer to that of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
question is yes”. Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
The same rule of birthright cit- Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
izenship appears not only in the on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
Fourteenth Amendment but also in and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
8 U.S.C. § 1401(a). That statute does immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
not empower the President to create the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
new disfavored subclasses of U.S.- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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