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The Indian Eye
IMMIGRATION AUGUST 21, 2026 45

purpose of giving birth on Ameri- mains study, employment, business, as an attack on birthright citizenship, recasting birthright citizenship as a
can soil.” The order on birth tourism or another lawful activity. The order but as a dragnet that can chill lawful privilege to be withheld from children
states that U.S. immigration laws thus risks turning ordinary visa adju- travel and destabilize settled lives whose parents it labels undesirable.
“establish discrete categories of tem- dications and admissions inspections even before any court strikes it down. These orders would invite arbitrary
porary nonimmigrant visas to allow into intrusive inquiries into repro- Both orders are blatantly uncon- enforcement, chill lawful travel, and
foreign visitors into the United States ductive status and motive, with un- stitutional and should meet the same unsettle the citizenship of children
for study, exchange, temporary em- predictable consequences for lawful fate as the initial executive order whom the Constitution places be-
ployment, tourism, and other transi- visa holders, their employers, univer- rejected in Trump v. Barbara. The yond presidential discretion. Courts
tory activities that are now exploited sities, and families. It may also deter Fourteenth Amendment does not should therefore reject this renewed
by birth tourism operators. Partici- pregnant nonimmigrants from travel- permit the President to create disfa- attempt to narrow birthright citizen-
pants in birth tourism schemes abuse ing, seeking medical care, or candidly vored categories of children born on ship and reaffirm the simple rule that
these categories to establish a perma- answering routine questions, because U.S. soil and then strip them of citi- has long anchored constitutional cit-
nent foothold in the United States by any mention of childbirth in the Unit- zenship because of their parents’ sta- izenship: with narrow exceptions, a
securing the advantage of citizenship ed States could be misconstrued as tus, motives, associations, or manner child born in the United States and
for their children and then potential- evidence of “birth tourism.” In this of entry. Nor may the government subject to its jurisdiction is a citizen
ly for themselves.” way, the order operates not merely evade the constitutional command by at birth.
Apart from being unconstitution-
al, the second order will sow confu- ________________________________________________________________________________________________________________________________________________________________________________________________
sion and fear well beyond the narrow Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
category of people it purports to tar- & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
get. A long-term nonimmigrant who mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
has been living lawfully in the United Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
States in F-1, H-1B, L-1, O-1, or oth- of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
er temporary status, and who briefly
travels abroad before returning while Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
pregnant, could be wrongly suspect- Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
ed of entering for the impermissible on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
purpose of giving birth. Consular of- Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
ficers and CBP inspectors may feel and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
pressured to probe pregnancy, med- immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
ical plans, family intentions, or future
immigration possibilities, even where the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
the person’s primary purpose re- in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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