Trump’s Executive Order Could Hurt US Expats

On the first day of his second presidency, Donald Trump signed an executive order declaring that the 14th Amendment to the US constitution doesn’t actually mean what it says. This has dire implications for many people born in the US but who have not yet got documentation of their citizenship or permanent residency.

The amendment, passed in 1867 in the aftermath of the Civil War, says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Trump Administration’s argument is that “subject to the jurisdiction thereof” does not include the children of noncitizen and non-permanent resident couples.

There will be a legal battle about this—a federal district judge has already ruled the order “blatantly unconstitutional.” Anyone inside US territory is subject to its jurisdiction, whether they’re there legally or not. The sole exception is diplomats, who remain technically under the authority of their home countries. The 1873 Supreme Court case Wong Kim Ark v. the United States confirmed this.

Much has changed in the last 150 years, however. It’s possible that the current Supreme Court could side with Trump.

The question is what that would mean to people potentially affected by this policy shift… and what they should do in anticipation.

Trump’s executive order doesn’t say people he considers non-citizens will be deported. Instead, the federal government won’t accept documents issued by local or state governments that recognize citizenship under the 14th Amendment. That will stop such people from getting passports, grants, medical care, and any other services from the federal government.

In effect, the new policy means such people will become stateless, unless their parents have already applied for citizenship from their countries of origin. This has happened before, under the Nazis, in India and Pakistan post-partition in 1947, and in Eastern Europe after World War II.

Given those experiences, many experts recommend the following to people potentially affected by this, particularly those from South and Central America:

1. Submit immediate applications for US passports before the government implements the order.
2. Apply for recognition of citizenship and passports from parents’ home countries to ensure children don’t end up stateless.
3. Consider applying for Spanish residency, which allows a shortened naturalization of two years for nationals of Latin American countries and other ex-Spanish territories.

Although it hasn’t yet been suggested publicly, another potential outcome is that people who’ve already acquired citizenship documents and passports could have them revoked. This is of special concern to anyone who acquired citizenship under those circumstances currently living outside the US. Loss of citizenship and a passport under such circumstances would mean immediate statelessness.

As I suggested during the election cycle, it’s important for Americans living in countries whose citizens might be affected by these types of orders to beware of retaliatory policy changes. For example, Colombia has already engaged in a serious diplomatic spat with Washington, after refusing to accept repatriation flights from the US. One threatened response, thankfully averted, was to revoke visa-free visitation rights by Americans. Politicians in Canada, Panama, and Denmark have made similar threats.

As always, if you have any immigration or emigration related issues you’d like to discuss, feel free to drop me a line and I’ll help you make appropriate plans.