Trump 2.0 Tuesday Immigration Updates with Gabriella Agostinelli

TLDR: In its final session, the Supreme Court issued three major immigration decisions: it struck down President Trump’s executive order attempting to end birthright citizenship, upheld the government’s authority to use “metering” to limit entries at the border for asylum seekers, and ruled that TPS terminations for countries like Haiti and Syria can proceed while litigation continues. Together, the rulings show the Court drawing a line between constitutional rights (birthright citizenship, hardest to change) and executive/agency discretion (TPS and border processing, easiest to change). Birthright citizenship is settled law going forward; TPS holders should treat their status as unstable and start planning alternatives.

Transcript:

Hi everybody thank you for joining our webinar today and we have some things to discuss so you might have heard the supreme court in its final session was very busy at the end of June and it had three decisions concerning immigration. Now, the top one that everyone wants to talk about and everyone should talk about is the big birthright citizenship decision. But there are also two other decisions that came through that also carry quite a bit of weight. And what’s interesting is that all of these cases dealt with different issues. Yes, they fall within the realm of immigration, but What these cases really were about is the separation of power. And they all really ask a core constitutional issue, which is who gets to make immigration policy? Is it Congress? Is it the president? Or is it the courts?

So first, let’s explore this in the context of the birthright citizenship decision. When we have a what what happened in essence is that in 2025, President Trump tried to issue an executive order effectively ending birthright citizenship. Which is part of the Fourteenth Amendment to the Constitution of the United States. This was obviously a huge, huge thing. A president trying to harness the power of executive action to change our Constitution. So obviously this threw everybody into panic. Multiple lawsuits ensued all the way to the Supreme Court, which was supposed to be answering the question, can a president have a power to change the Constitution?

And going a bit deeper for anybody who’s not aware, What he what President Trump was trying to achieve was saying if a child is born to a person who a mother who is here either invalid status, but not married to a U.S. citizen or the parent is not the co-parent is not a U.S. citizen. Or if that child was born to an individual who was not here in any legal status and the father was not a U.S. citizen, will that child be able to be born a U.S. citizen? And the Trump administration was trying to put an end to that. We’ve also heard a lot of discourse about anchor babies, a crude term. But the practice of birth tourism is something that this administration has been pretty clear that they are looking to put a stop to.

So goes all the way up to the Supreme Court. And what does the Supreme Court say? Now, remember, this is a conservative policy. court. But essentially, what the Supreme Court was saying here is that regardless of a parent’s immigration status, that child will be born a U.S. citizen. And, you know, a lot of us were going into this thinking, well, yeah, you know, it’s always been a rule that if you want to change the Constitution, that requires an amendment. To obtain an amendment, you need to have two thirds of both houses of Congress agree to that. And then you need three quarters of the states to agree to that, not just A proclamation written by a president signed in big writing and issued off to the press. That is not how we do things.

And basically what the Supreme Court was validating here. Yes, a conservative Supreme Court was still validating the fact that at the end of the day, rule of law still prevails. This is the Constitution. We cannot change it. And what a slippery slope we would have if a president could just willy-nilly change the Constitution because he or she felt like it. So this was a big win for law. This was a big win for the Constitution.

And as we talk about the two other cases that came up, I want to kind of remind you that Not all immigration benefits have this same legal foundation. What do I mean by that? Well, we think about it, it’s like a pyramid. At the top, we have constitutional rights, and this is birthright citizenship. These are things that hardest for an administration to change, which is why even though we’ve seen this administration pull out many, many, many, many, many stops to curb legal or illegal immigration, we still have this hierarchy of what the executive branch, that is the branch headed by a president, what they can and cannot do.

So if we think about constitutional rights at the top, in the middle, let’s think about statutory rights. These are things that are set by Congress. These are things like temporary protected status, which we’ll get to in a second, asylum, employment visas, family petitions. These are all things that Congress can change through legislation. They’re a little bit easier for the president to try to work on, but still not great. What he’s going to have most success with is changing things at the bottom, which are executive policies. These are things like agency guidance on how, for instance, U.S. citizenship and immigration services can change. review a case or how ICE can use its powers and exercise its discretion.

So when we think about the birthright citizenship, to put a nice little bow on it, we remember the Constitution prevails and is the law of the land, and it must reflect the will of we the people. Any kind of change that this government wants to make that is based in our Constitution must represent the the the desires of we the people okay so what happened in addition to the birthright citizenship decision well there was also a decision that came up about immigration metering and what this basically is is the practice of when somebody’s trying to come to the united states to seek asylum can the government, does the president have the right to change a policy where they can stop somebody from physically entering the United States to be inspected so that they can claim asylum in the U.S.?

What metering is, is the idea that If the border is an absolute zoo and is crazy and there’s tens of thousands of people camped outside waiting to try to have their turn to claim asylum, can the government actually turn them away? Metering is the term meant to describe, we’ve reached our quota from the day, you gotta go back, you can’t come in. And what the Supreme Court ultimately decided here was, yes, the government has that ability. They can say here, that you can’t make your entry to the U.S. Because remember, the law for asylum is as long as you have entered the United States, you can claim asylum. The government can now prevent that entry so that you can’t claim asylum. And what they generally would do is remove those people and say, you cannot come in. Maybe when the line’s a little bit slower or a little bit shorter, you can come in. But for now, we’re not allowing you to make that entry. Which asylum advocates obviously say is, you know, that’s problematic because we, you know, we are a land of the free. We are a land that is supposed to take the poor huddled masses. We’re the ones that are supposed to be welcoming people into this country. This legal right to claim asylum is not being honored.

But here… Here, this is an example of where the Supreme Court went in a different direction, and they referenced that pyramid in a way by saying, this is an executive decision. We, the Supreme Court, don’t have the authority to tell you or to tell the government that you can’t that you can or cannot process somebody. It is their discretion to be able to do that.

Okay, now the last case to talk about is centering around temporary protected status. And what that is, is for many countries around the world that there are really unsafe conditions, Afghanistan, Nepal, Sudan, And up until now, Haiti and Syria, many others, Ukraine is another example. The government says, listen, if you come from a really, really unsafe country and you’re in the United States and you’re from one of these temporary protected status designated countries, you can seek this temporary status to stay in the United States and you can even apply for the authorization to work. But in twenty twenty five, the Trump administration started taking steps to repeal or take away temporary protected status for citizens of many of these countries.

And one of these court cases that ensued had to do with the TPS being removed for Syria and for Haiti, and the government contended that they have the right to decide Who gets these discretionary programs? And they can take them away at any time. And the plaintiffs argued that, no, there was no country investigation being done to determine whether these were still safe or not safe to return to. And the other thing is that a lot of the statements the president had made, they argued, were rooted in racism and that the decision to repeal TPS was coming from that sentiment rather than, you know, this is actually a safe place for people to return.

So ultimately here, the Supreme Court held that Congress gave the Secretary of Homeland Security broad discretion over TPS designation. and termination decisions. And because the TPS statute significantly limits judicial review of discretionary determinations, the court said these terminations of TPS can proceed while litigation continues.

So what is the takeaway with all of these things, you guys? Well, first, we want to say that, you know, it’s important to distinguish the court, the Supreme Court. Again, I will say a conservative Supreme Court is not simply pro-immigrant or anti-immigrant, and we can’t really interpret the decisions as a result. What they are looking at is the law and authority and who has say over how things happen. So the questions here is whether the executive branch, the president, has been acting within the authority granted to it by either the Constitution or Congress. This is constitutional law. This is civics, you guys. This is not a court that believes that people should have birthright citizenship. It’s nothing about that. It’s about the rule of law.

So Going forward, what I want you to know, do not worry about birthright citizenship. If you are somebody who has been losing sleep over this, please do not. It’s over for the president. Guys, this has been decided. There is nothing that the Trump administration can do to take away your ability to be born a citizen in the United States. It’s reached the end of the road. We’re done. It’s been litigated. It’s over. and certainly doesn’t affect anybody retroactively. If you were born and became a citizen due to birthright citizenship, where both your parents were not U.S. citizens, do not worry about it. It’s over. If you are pregnant and you are about to have a baby, that baby will be born a U.S. citizen if they are born in the United States.

If you have TPS, this is an increasingly unstable category. And what I would tell all of my clients is if you are hoping to stay in the united states you need to have a plan b we cannot rely on tps being an everlasting benefit for you start thinking about other ways that you can remain in this country or could because unfortunately it could be the end of the road for many individuals

So thank you guys for joining us today. These were big decisions. And who knows what’s coming down the pipeline in the immigration world? We say every day we come to work and we don’t know what’s going to fall in our laps today. But you can be sure that we will be keeping you posted. We will help you stay on top of all of these developments, make sense of them. And it goes without saying, if you ever have any questions, don’t hesitate to reach out. Take care, guys.