The ban on the US birthright citizenship (jus soli-right of the soil) by the 47th President of the United States Donald Trump is perhaps one of the most discussed topics at this moment across the globe. This means babies born in the US soil are no longer entitled to obtain citizenship automatically by birth. Earlier President Donald Trump termed it as "birth tourism" and banned this century long constitutionally guaranteed right immediately after being sworn. He signed the directive called "Protecting the Meaning and Value of American Citizenship" on 20 January. However, the order would take effect in following 30 days.

Notably, the 14th amendment to the USA Constitution provides legal recognition of citizenship by birth and states "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 Immigration and Nationality Act of 1952 defined citizens and also recognized birthright citizenship. Subsequently in 1982, in Plyler v. Doe, the US Supreme Court reaffirmed birthright citizenship for children of undocumented immigrants.

Interestingly, there are exceptions too. For instance, a child born in the US to a foreign diplomatic officer with diplomatic immunity are not considered as the US citizen because they are not subject to the jurisdiction of the United States. Pertinently, in 2021, the Supreme Court declared that anyone born in American Samoa's unincorporated territories are not automatically guaranteed birthright citizenship, unless Congress enacts legislation. Also, the baby of enemy occupiers – does not have the birthright citizenship.

The new Executive Directive now creates two groups of individuals born in the US who would not be entitled to birthright citizenship automatically. First, those whose mother was unlawfully present in the US and whose father was not a US citizen or lawful permanent resident at the time of the child's birth; and second, those whose mother was in the US on a lawful but temporary visa e.g., as a student or tourist and whose father was not a US citizen or lawful permanent resident at the time of the birth. The order relies on legal interpretation that the phrase "subject to the jurisdiction" of the US would not be applicable for the undocumented immigrants.

Although Plyler v. Doe (1982) promulgated that according to the 14th Amendment, there was "no plausible distinction" between immigrants who entered lawfully and those who entered unlawfully as both were subject to the civil and criminal laws of the State they resided in.

The US District Judge John C. Coughenour issued a ruling on 23 January in response to suit from a coalition of states — Washington, Arizona, Illinois and Oregon, temporarily restraining Trump's order nationwide for next 14 days. The court called the order as blatantly unconstitutional. President Trump's administration is set to challenge the restraining order.

Donald Trump claimed that the US is the only state offering birthright citizenship. Although more than 30 countries have the same system of acquiring citizenship including Argentina, Brazil, Canada, Mexico, Uruguay, Venezuela etc. On the contrary, more than 20 countries have reversed or rolled back their policies like the UK, Ireland etc.  There were an estimated 11 million immigrants in the U.S. illegally in January 2022, a figure that some analysts now place at 13 to 14 millions. Their US-born children are considered by the government to have the US citizenship. 

This new presidential directive eliminating birthright citizenship if sustained will affect immigrants and short-term visa holders. Even if the Trump administration is unable to completely ban birthright citizenship of the children of certain immigrants for court's intervention, officials have reportedly been exploring other ways to tackle the 'birth tourism'. For instance, they could try to restrict short-term visas for pregnant travellers.

Interesting to note, Bangladesh does not recognise birthright citizenship under its citizenship laws. Section 4 of the Citizenship Act of 1951 stipulates that a person shall not be a citizen by birth if their father possesses immunity as an envoy of a sovereign power and is not a citizen of Bangladesh or their father is an enemy alien, and the birth occurs in a place then under occupation by the enemy.

Enemy aliens are people who do not recognise or refuse to recognise the sovereignty, territorial integrity and independence of Bangladesh and whose country of citizenship is, or was, at war with Bangladesh since the declaration of independence. However, citizenship of Bangladesh can be acquired by birth if the identity or nationality of the parents is unknown except children of enemy aliens born in Bangladesh, people residing illegally or refugees in Bangladesh. This is why, the stranded Bihari  children did not get citizenship of Bangladesh until 2008 when the High Court Division decision in Md. Sadaqat Khan (Fakku) and Others v. Chief Election Commissioner, Bangladesh Election Commission.

The writer is doctoral research at the School of Law, University of Galway, Ireland and Associate Professor of Law at Dhaka International University.