“It will affect all families”: Challenges await Texas parents if birthright citizenship ends

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EL PASO — Texas parents may face bureaucratic obstacles next month in obtaining United States citizenship for their newborns after the U.S. Supreme Court ended a nationwide injunction on President Donald Trump’s executive order that seeks to eliminate the constitutional right.

The 6-3 ruling ignited a fresh wave of concern among immigrant rights activists, local elected officials and health care administrators who will be tasked with carrying out the order.

Shortly after the ruling, civil and immigrant rights groups filed a class-action lawsuit against the Trump administration, which could lead to a nationwide ruling that would prevent Trump’s executive order from taking effect. But as of Friday, the Supreme Court ruling allows the Trump administration to implement this policy 30 days from now, in 28 states, including Texas, that are not legally challenging Trump’s executive order.

Efrén C. Olivares, vice president of litigation and legal strategy at the National Immigration Law Center, said that “nothing changes for the next 30 days and anyone born in the United States is still a U.S. citizen.”

The scope of the executive order — which aims to prevent the children of undocumented immigrants from obtaining citizenship, a long-standing guarantee given to anyone born in the U.S. that dates back to the end of the American Civil War — will extend beyond immigrants, experts said. The result will crest a bureaucratic nightmare and a modern-day caste system.

All new parents in states that are not fighting the order will have to prove they are in the country legally if they want their children to also get citizenship, said Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School.

“The immediate effect of the ruling is deep uncertainty for families across the country about whether their babies will be born as US citizens or not,” Murkherjee said. “It's worth noting that if this order does take effect, it will affect all families, not just immigrant families, because every family will be required to prove their citizenship status or their lawful permanent resident status in the hospital delivery room.”

Leaving a baby stateless can also lead to their deportation, but to what country will depend on who is willing to accept a baby born in the U.S. without citizenship, she said.

“You could have thousands of babies that are essentially stateless,” said Domingo Garcia, national president of the League of Latin American Citizens United, an advocacy group with chapters in Texas. “It’s a very cruel and unjust place to put babies and families in.”

According to the Pew Research Center, about 250,000 babies were born to undocumented immigrants in the U.S., or 6% of the total births, in 2016, the latest year for which data is available. In Texas, which is among the states leading the country in live births, an average of more than 377,000 babies are born annually.

As of now, state officials and some hospitals have said they’ve not received any instructions from the federal government on how to proceed with potentially implementing Trump’s executive order.

“A birth certificate is simply a record of an event that occurred in Texas,” said Lara Anton, a spokesperson for the Texas Department of State Health Services. “They’re required to be filed for any birth in Texas, regardless of citizenship or immigration status, and citizenship is not a field on the birth certificate.”

Rural Texas hospitals don't plan on withholding birth certificates for babies born in their facilities, said John Henderson, president and CEO of the Texas Organization of Rural and Community Hospitals, representing 157 hospitals in the state.

The certificate is meant to record a birth, and hospitals "are still the source of truth when it comes to birth certificates and registry, and that's the same tomorrow as it is today," he said.

Henderson added he is not concerned about the ruling's effects on hospitals, but on the patients who might avoid seeking care as a result.

"I don't think hospitals will change the way that they provide care to anyone," he said, "but there might be a reluctance to go to a hospital when you need it."

If a birth certificate issued at an American hospital is not enough to prove citizenship, then it would be worthless, said Robert H. Crane, a retired immigration attorney in McAllen.

“The birth certificate will not prove that they're a U.S. citizen for all these purposes — the Social Security agency won't accept it, it won’t get you a Texas driver's license, won't get you a U.S. passport. It's virtually useless,” Crane said.

Obtaining a U.S. passport would require a much higher burden of proof, such as documentation of their parents’ lawful status.

“It's so chaotic that I can't imagine how it would be administered,” Crane said.

The Trump administration has also not said how it plans to implement this policy, if it could. Last month, during arguments before the U.S. Supreme Court, the lawyer representing the Trump administration said he doesn’t know how it could be implemented.

“The federal officials will have to figure that out essentially,” U.S. Solicitor General John Sauer told Justice Brett Kavanaugh, who pressed the lawyer to explain how and who will be in charge of determining if a baby is a U.S. citizen.

“We don’t know because the agencies were never given the opportunity to formulate the guidance,” Sauer conceded.

Trump’s order and the Supreme Court’s ruling that followed offered no help to local governments about how to tell health authorities to enforce it, said Ector County Judge Dustin Fawcett, a Republican. He said it creates instability for hospitals seeking to provide care in his West Texas county, which has a population of roughly 164,000.

“The clear direction is just not quite there on exactly what we’re supposed to be doing here,” Fawcett, the county’s highest-ranking elected official, said. “Are we not allowing U.S.-born children citizenship when that’s the standard practice?”

The U.S. is one of 30 countries in the world that automatically classifies babies born on its soil as citizens, regardless of their parents' immigration status. In other parts of the world, citizenship is determined by the citizenship or nationality of the parents. Only children born in the U.S. to foreign diplomats are not classified as U.S. citizens because they’re not subject to the U.S. Constitution.

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