U.S. District Judge Deborah Boardman placed a temporary injunction on provisions in President Donald Trump’s executive order aimed at limiting birthright citizenship.
“Since his second term in office began on January 20, 2025, the President has tried, through Executive Order, to upend our country’s longstanding tradition of birthright citizenship and eliminate, for large swaths of Americans, the right to citizenship by birth, a right enshrined in the Citizenship Clause of the Fourteenth Amendment,” wrote Boardman.
The decisions affect Sections 2 and 3.
The plaintiffs allege the EO violates the Fourteenth Amendment and the Immigration and Nationality Act, “imposes immediate, irreparable harm on members of the class” by denying them citizenship, and that it “provides so little clarity about how or to whom it applies, causing confusion and fear.”
Boardman said the plaintiffs will succeed on the merits since the Supreme Court upheld birthright citizenship in June.
“The Supreme Court has spoken: Children in the certified class are ‘citizens at birth,’” wrote the judge. “Barbara is the law of the land. The President must follow it.”
Then there’s the clarity:
For example, the plaintiffs allege that because the “Executive Branch has taken a broad view of who qualifies as an alien enemy,” id. ¶¶ 27–30, sometimes resting its conclusions on false or speculative allegations, or even tenuous markers like tattoos or family affiliations, id. ¶¶ 32–36, children whose parents may “rightly or wrongfully” be deemed by the government to be alien enemies face a credible threat of “being denied or stripped of their birthright citizenship” under Section 2(a) of the Executive Order, “even though they do not fall within a recognized exception to birthright citizenship,” id. ¶ 42.
Here’s Section 2(a):
(a) either parent of that person is an alien enemy, defined to include any member of a designated Foreign Terrorist Organization under 8 U.S.C. 1189 or Specially Designated Global Terrorist, consistent with the International Emergency Economic Powers Act, 50 U.S.C. 1701 et seq., and Executive Order 13224 of September 23, 2001 (Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), as amended;
However, based on Boardman’s description of those children’s parents, Section 2(a) doesn’t apply to them. Neither parent belongs to any of those organizations.
So why the decision? Boardman invoked none other than Kilmar Armando Abrego Garcia (omitted citations):
Their fear of enforcement is not speculative, as the defendants insist. Even though Monica and her husband “are not, and have never been, members of Tren de Aragua,” and even though Andrea and her child’s father are not members of La Nueva Familia Michoacana, their fears that they might be deemed alien enemies are well-founded. In the past year, in the immigration removal context, the government illegally removed Kilmar Armando Abrego Garcia to his native El Salvador after the government hastily labeled him an MS-13 member, even though he “was subject to a withholding order forbidding his removal to El Salvador.” The government chalked his removal up to “administrative error.” Id. Additionally, in AARP v. Trump, 605 U.S. 91 (2025), the government “t[ook] steps . . . toward removing [Venezuelan] detainees under the [Alien Enemies Act] including transporting them from their detention facility to an airport” on the belief that they were members of Tren de Aragua, even though the court had not yet determined “whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act.” And, in Sanchez Puentes v. Garite, Venezuelans who previously had temporary protected status and were arrested and detained based on allegations of being Tren de Aragua members sought habeas relief. The court granted the habeas petition because the government had not provided evidence of gang membership through anything except “shoddy affidavits and contradictory testimony.” These are not isolated incidents; this appears to be a concerning pattern of behavior by government officials. Given these examples of the government hastily and without credible evidence attempting to remove people from the United States because of purported affiliations with groups deemed alien enemies, it is no wonder that Monica and Andrea fear they or their children’s fathers too will be wrongly called an alien enemy and their children will be denied citizenship on that basis. They face a credible threat of enforcement of the 2026 Executive Order.
I cannot wait to see how that plays out in the next step of the judicial process.
The injunction only applies to children born after February 19, 2025, due to the nature of the case:
The 2026 Executive Order does not state that it applies prospectively. For instance, it does not state that it applies only to babies born after it was issued or after a certain date in the future. Nowhere in the order does it indicate it does not apply to children already born. Clearly, the President knows how to specify that an Executive Order on birthright citizenship applies only to children not yet born because he did so in the 2025 Executive Order, which said that the denial of citizenship by birth “shall apply only to persons who are born within the United States after 30 days from the date of this order,” that is, babies born after February 19, 2025. The President’s most recent Executive Order on birthright citizenship says nothing like that. The only fair reading of the plain language of the 2026 Executive Order is that it applies to any child who falls within any category in Section 2 of the order, which includes babies born after February 19, 2025.
“The 2026 Executive Order is almost certainly unconstitutional as applied to the certified class for the simple reason that the Supreme Court in Barbara already decided that the children in the class are citizens at birth,” wrote Boardman. “This Court must, once again, preliminarily enjoin enforcement of the President’s most recent attempt to strip the right to citizenship from them.”
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