In the grim final months of the first Trump Administration, several pregnant asylum seekers who crossed the U.S.-Mexico border in search of medical facilities were forcibly deported back to Mexico hours after giving birth, without notice of where they were being taken or paperwork to prove that their newborn children were U.S. citizens by birthright.
The new mothers were deported under Title 42 of the U.S. Code, part of a 1944 public health law invoked by the administration to curb migration in March 2020 amid the beginning of the COVID-19 pandemic. This law gave the Department of Homeland Security license to deport migrants—including asylum seekers otherwise protected under international law—on the grounds of protecting public health and ultimately resulted in over 1.8 million deportations. But neither Title 42 nor any other U.S. immigration policy authorizes the government to deport American citizens like these mothers’ newborn children.
The deportation of the “Title 42 Moms”—as they came to be called by immigrant rights advocacy organization Al Otro Lado, which represented them legally—provides a window into what U.S. policy might look like in the event that the constitutional guarantee of birthright citizenship is successfully challenged.
The Fourteenth Amendment—one of three amendments introduced after the Civil War to transform the U.S. Constitution to include formerly enslaved people—mandated citizenship for anyone “born or naturalized” within the geographic boundaries of the United States in 1868. Thirty years later, the U.S. Supreme Court affirmed in its United States v. Wong Kim Ark ruling that the Fourteenth Amendment’s citizenship clause applies equally to the children of U.S.- and foreign-born parents.
This equal application has long been a target of white nationalists, many of whom promote a racist and antisemitic conspiracy theory called the “Great Replacement,” which posits that international powerbrokers have orchestrated the immigration of non-white people to “replace” white Americans and Europeans. Since the 1990s, The Heritage Foundation and the Center for Immigration Studies—two extreme far-right think tanks that have significantly influenced the Trump Administration—have collaborated to push for the end of birthright citizenship. Their argument rests in part on the widely discredited idea, propagated by far-right operatives like disbarred rightwing lawyer John Eastman, that because the Fourteenth Amendment’s citizenship clause excludes noncitizen “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers,” it cannot apply to the children of undocumented immigrants.
On President Donald Trump’s first day back in office, his administration published a proclamation which similarly asserts that migrants are part of an invading force. This interpretation equates people desperately fleeing their homelands military partisans and suggests that their children should be precluded from birthright citizenship.
After being deported back to Mexico, the Title 42 Moms survived as best they could while living on the streets amid dangerous conditions. The “Migrant Protection Protocols” implemented by the Trump Administration in 2019 allowed the Department of Homeland Security to expel migrants, including asylum seekers, to neighboring countries. Known as the “Remain in Mexico” policy, this program violates the United Nations Convention and Protocols on the Status of Refugees, which stipulates that asylum seekers have the right to cross international borders and have their claims of potential persecution heard in court. While they were suspended under the Biden Administration, these protocols have been reintroduced under the new administration.
The name “Migrant Protection Protocols” is ironic, if not cruel, as the policy forces migrants to remain in border cities, where there are few shelter beds and services available to them. During the pandemic, there was only one clinic available for pregnant migrants in Tijuana, which has a population of more than two million. Angeline, a Haitian migrant who was deported soon after giving birth to her son, described her experience under Remain in Mexico in 2021: “When I crossed the border, that’s when I realized I was being taken to Mexico . . . . I started screaming, ‘What am I going to do with a baby, I don’t have any place to stay, anywhere to sleep.’ ”
Migrants living in these precarious conditions are vulnerable to a variety of threats, including transnational gangs enabled by the ready supply of guns flowing from the United States. Many report being kidnapped as they try to survive in the border cities they are forced to inhabit while waiting for their opportunity to cross into the United States.
In addition to birthright citizenship, the Fourteenth Amendment guarantees due process to everyone in the United States, including non-citizens. The due process rights of non-citizens have been reaffirmed in immigration law during both the McCarthy and war on terror eras, giving migrants standing in the U.S. judicial system.
In March 2021, a coalition of border and immigrant rights advocacy organizations including Al Otro Lado, the Haitian Bridge Alliance, and the National Immigration Litigation Alliance, submitted Freedom of Information Act requests for the birth certificates, Social Security cards, and hospital records for the Title 42 Moms’ U.S.-born children, ultimately recovering these documents after months of delay. This coalition successfully sued the U.S. Customs and Border Patrol agency over their initial refusal and subsequent delay of providing the documents, eventually winning a financial settlement.
In 2022, representing a broad array of migrant advocates, the American Civil Liberties Union sued the Department of Homeland Security on behalf of six migrant families, including plaintiff Nancy Gimena Huisha-Huisha and her birthright citizen child, who petitioned for relief from deportation. The U.S. Court of Appeals for the District of Columbia found that their deportations under the “Remain in Mexico” policy had the potential to subject these families to “extreme violence.” During the comparatively tolerant Biden Administration, the Huisha-Huisah decision provided an opening for migrant advocacy organizations to successfully petition for humanitarian parole—an exception to prevailing immigration policy which allowed Title 42 Moms and their families to enter the United States and claim asylum. But the Supreme Court’s recent response to Trump’s request for an emergency hearing on birthright citizenship has raised the possibility that the Fourteenth Amendment’s birthright citizenship clause may be ruled unconstitutional.
The Title 42 Moms’s predicament grimly illustrates that the guarantee of birthright citizenship is less secure than it may appear, and faces an uncertain future—and that the cruel conditions that birthright citizenship was established to redress more than 150 years ago are still a matter of reality for many non-citizens. Should the Trump Administration succeed in abolishing birthright citizenship, the lives of these brave women and millions of others like them will be jeopardized.