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Three babies born in the last several months don’t know it yet, but they are on their way to making history. Joined by their parents, these little bundles of joy are plaintiffs in Barbara v. Trump, a landmark case challenging President Donald Trump’s executive order that seeks to limit who is eligible for U.S. citizenship. The Supreme Court agreed to hear their case last week, and these young plaintiffs represent thousands of babies born to immigrants around the country. They’re facing a Herculean task, risking their safety and their futures for the sake of all Americans, born here or not.
The Barbara case came together after the Supreme Court banned lower court judges from issuing universal injunctions in a devastating decision that came down in June. It was prompted by the Trump administration’s challenges of three separate universal injunctions that had stopped Trump’s executive order from taking effect. That order sought to restrict U.S. citizenship from babies born on U.S. soil to mothers who do not have legal status or are in the country on a temporary basis and whose fathers are not U.S. citizens or lawful permanent residents at the time of their child’s birth.
The Supreme Court left one pathway to challenge Trump’s birthright citizenship executive order, and that is through class-action lawsuits, which brings us to Barbara. The main plaintiffs are three separate families with parents who are not U.S. citizens or green-card holders who brought a child into the world on U.S. soil this year after Trump’s executive order was signed. The outcome of this case will determine if their babies, along with thousands of others born to immigrants living in the U.S., will become stateless, or be granted U.S. citizenship as the Constitution has demanded for more than 100 years.
Conchita Cruz is deeply familiar with the struggles immigrants living and working in the U.S. face, particularly since Trump began his second term, because she serves as co-executive director of the Asylum Seeker Advocacy Project. She was part of the groups behind the first birthright citizenship lawsuit, CASA v. Trump. The same day SCOTUS released its decision in the CASA case, the ASAP filed a class-action lawsuit, and by Aug. 7 a judge certified the ASAP’s class. The judge also issued a new injunction against Trump’s executive order that has effectively been preserving U.S. citizenship for all babies born throughout the U.S. While she doesn’t represent the specific Barbara plaintiffs, Cruz’s clients are similarly situated.
I spoke with Cruz to understand the challenges that the Barbara plaintiffs face and what they represent for all Americans born in the U.S. Our conversation has been lightly edited and condensed for clarity.
Shirin Ali: How do you go about finding plaintiffs for such a consequential lawsuit?
Conchita Cruz: I have a slightly different perspective, because I work at a membership organization. For us, when we are bringing a lawsuit, which we did in the context of birthright citizenship, that’s now also a class-action lawsuit, we do so because our members reach out to us and tell us that they’re worried about something, or that they’re being impacted by a policy, or that they’re scared that they could be in the future. Around birthright citizenship, we’ve heard from hundreds of expectant parents, if not thousands, over the last year who were worried that their children would not be able to access U.S. citizenship based on the executive order that limits birthright citizenship for children of immigrants.
Parents I have found who we have spoken to and who have been part of our case have wanted to not just protect their children’s rights, but stand up on behalf of all children who should be born U.S. citizens and all families who are scared that their kids might not be, based on the executive order. I don’t personally believe in convincing people to be plaintiffs for lawsuits. I think that there are people who want to stand up because they’re brave and because they have something very significant at stake, and our job is to support them in doing so. I assume that the same is true for the people who are plaintiffs in the Barbara case, that they’re standing up because they first of all want to protect their future children, but also because this is the right thing to do. They know that the Constitution is clear and they want to stand up to protect not only their children, but other people’s children who are in this situation.
President Trump is infamous for his vindictiveness, so families who choose to join a lawsuit challenging his birthright citizenship executive order would be taking a pretty big risk. What’s being done to protect them?
In our lawsuit, CASA v. Trump, the parents and children who are now class representatives—plaintiffs—in our lawsuit are proceeding under pseudonyms. That’s really an important way to make people feel comfortable. Obviously, they do not want to be targeted by the government, but I think that there are other concerns that people have for why they wouldn’t want their full name being used on a public docket in such a high-profile case—the fact that there could be private individuals who may try to locate the families because they may not agree with their position. There are many individuals who fear their kids would be impacted by this policy, so for instance our members who are asylum-seekers may be trying to remain private or out of the spotlight because they fled persecution in their country of origin and do not want the country that they’re from to even know where they are, let alone that they’re currently having this potential issue with their child about receiving U.S citizenship or not.
Many of our members who have been plaintiffs in the birthright citizenship case that we brought wanted to advocate publicly in the media. Some of the precautions they’ve taken in addition to having a pseudonym in the legal cases has been also using a pseudonym when speaking to the media, while not showing their face on camera. They won’t say what city they live in, maybe only saying the state.
Considering that the White House has been going after all immigrants, those with legal status and those without, the plaintiffs in the Barbara case also could face deportation or detention, right?
I think that for parents who I’ve spoken to who have a pending asylum application and who are having a child in the U.S. at this moment and are worried about that child’s access to U.S. citizenship, the stakes are very high. The parents are acutely aware of that because they themselves understand what it’s like to live in the United States and not have a secure immigration status and to live in fear that you could be detained and deported to another country. But also for U.S.-born children, the idea that they may never be able to get a form of identification, a driver’s license, the ability to access higher education, basically, to have a real future in the United States, is really scary to a lot of parents.
I think for a parent who is fleeing persecution from another government in particular, there doesn’t always feel like there’s an ability to confer your own citizenship to your child. If you’re fleeing persecution from another government, you don’t want that government to know that you even have a child, let alone walk into a consulate and give the government the name and date of birth of that child, right? So that in and of itself puts parents in a really difficult position, where on the one hand, their child would be stateless, or on the other hand, their child would be known to a foreign government that has persecuted them and who then could persecute their child as a result of that knowledge. Parents in this situation are really scared, understandably, and I think that not being able to prove entitlement to U.S. citizenship in the future could really affect a lot of people, regardless of their immigration status, if they’re not able to present the right documents or paperwork. Those are concerns that I think expecting parents should be thinking about, regardless of their own immigration status, because the consequences are so dire.
The namesake plaintiff in this case is a woman named Barbara who is a Honduran national, married to a man who is not a U.S. citizen, nor is he a legal permanent resident. In October, they had their fourth child together, but according to the president’s executive order, that baby is ineligible for U.S. citizenship. The stakes for this family could not be higher; what do they represent?
I think the stakes are definitely very high for immigrant families, regardless of exactly what the parents’ immigration status is. The idea of not being able to confer U.S. citizenship to your child who is born in the United States is very scary, especially considering people who are from countries where it would be difficult for them to even confer their own citizenship to their child. We know many parents are afraid that their children could be born stateless, and that’s especially an issue for people from Venezuela, for example. There’s no consulate in the United States for Venezuela, so if someone wanted to get their child a Venezuelan passport or register their child for Venezuelan citizenship while living in the United States, they’re not able to. Right there you automatically have a number of children who would be born stateless and wouldn’t be able to get a passport to travel anywhere else in the world.
I’m always in awe of our members and other immigrants who are speaking out about injustices and where they see that the government is breaking the law, all the more so on the issue of birthright citizenship. I’ve worked with so many pregnant mothers who are dealing with the throes of pregnancy, morning sickness, health complications, and so many other obstacles in their day-to-day life, who are not only brave, but also want to take the time and the energy to speak out about this issue because it affects their future child and other people’s children. I’m always in awe of those moms, especially having a child myself. I know what it’s like to be pregnant and already struggling to get through the day, so I imagine that working with an attorney on a lawsuit, speaking out in the media, it all takes a lot of energy and time. I’m grateful to these parents for speaking out, and honestly, for protecting this constitutional right for everyone, not just for their children and other children of immigrants. It’s so plainly the case that the Constitution guarantees birthright citizenship that I feel that these parents are speaking up on behalf of all U.S. families who truly have something at stake here.
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