I am immigration attorney Jim Hacking of Hacking Law Practice, and I am disappointed in Trumps claim to end birthright citizenship, and his lack of understanding of how the Constitution works. I am here to fight for immigrants and their rights, and answer questions on the issue. Here is my proof, my website, CNN article on topic, my blog page

Disclaimer: The purpose of this Ask Me Anything is to discuss these ridiculous claims and immigration law.  My responses should not be taken as legal advice.

Thanks for tuning in and all the great questions!

Comments: 955 • Responses: 21  • Date: 

yes_its_him255 karma

Most "Western" countries (i.e. in Europe, and outside the Western Hemisphere, paradoxically enough) don't have jus soli birthright citizenship.

Why is it a given that the US must have this? Even the 14th amendment isn't categorical in this aspect.

jimhacking329 karma

So I don't think it is a given that the U.S. "must have this," but rather that we historically have. Since the passage of the 14th Amendment, anyone born in the U.S. is considered a U.S. citizen. Mr. Trump has not articulated any good reasons as to why we should do away with this.

Apparently, his goal is to have the issue litigated in the Courts. His thought is that if he issues an executive order, that it will be litigated in the federal courts and will eventually reach the U.S. Supreme Court.

It is interesting that he is left to use an executive order given the GOP's wailing and gnashing of teeth when President Obama used executive orders to protect undocumented young people from deportation. Trump's immigration proposals have gone no where and he is left to resort to executive orders.

starbuckroad91 karma

Is this an accurate quote of Sen Jacob Howard, Author of the 14th amendment? "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

Do you think an executive order on this issue would make it to the supreme court?

jimhacking39 karma

I think an executive order would make it to federal court and eventually to one of the Circuit Courts of Appeals. Whether the Supreme Court takes up the issue is unclear. Four justices would need to sign off on the writ of certiorari for the Court to consider it.

HalfEazy58 karma

“Subject to the jurisdiction thereof” Doesn’t this part of the amendment exclude people who aren’t citizens under our law?

jimhacking34 karma

This part of the amendment does not exclude those who are not yet citizens under the law. Many provisions of the Constitution, federal laws, state laws and municipal ordinances apply to citizens and non-citizens alike. So I don't think this argument has much traction.

Bllla52 karma

Why don’t people differentiate between legal immigrants and illegal immigrants when talking about these issues? It’s kind of an important point and it seems to get brushed over a lot. I haven’t met a single person who doesn’t believe that legal immigrants should be welcomed here.

jimhacking35 karma

Billa, I think this is a good point. Immigrants are often portrayed negatively, regardless of their immigration status.

Mr. Trump and Stephen Miller want to cut legal immigration as well.

p7100138 karma

With 3 million homeless Americans why should we be granting citizenship to otheres before we take care of our own?

jimhacking312 karma

Who is to say that we cannot do both. Giving U.S. citizenship to a newborn does not impact the country's ability to care for the homeless. Why is it an either or?

jimhacking34 karma

I think it is open to debate as to whether undocumented immigrants can be drafted.

Surely, many undocumented have served in the armed forces over the years.

What this has to do with birthright citizenship is unclear.

OmniOmnibus23 karma

Can you explain what happens when asylum seekers present themselves at a border crossing or US Embassy? I've heard this is the "proper" way to request asylum, but I have also heard that it doesn't work.

jimhacking312 karma

An individual can ask for asylum anywhere in the U.S.

They can also ask for asylum at a port of entry.

The problem at the border is that CBP is not allowing people to make asylum claims at the port.

This is illegal and contrary to our laws.

Individuals should be allowed to make their asylum claims at the border, but Trump won't let them.

MrNerdy4 karma

Seconded on a wish to have this more clearly explained. The standing argument I have received with regards to the "proper" way to go about this, as it has been said to me by those that don't see the current caravan situation as proper, is that asylum seekers are best to have the process application submitted, remotely, WELL prior to any attempt to arrive at or near the location they seek asylum within.

Is there any greater merit to doing the process this way? when the very nature of seeking asylum may come with the inherent implication that the seekers are not in a safe situation to process the paperwork with greatly advanced notice?

jimhacking310 karma

You cannot apply for asylum unless you are in the U.S. or at a port of entry. So I don't think you could apply for asylum ahead of time.

AloneDoughnut13 karma

As a Canadian, on the outside looking in, we actually had a really big issue with this a few years back, where there were hotels offering long term stay for the purposes for mother's giving birth in Canada. The purpose of course was to have a child of Canadian birthright, and therefore avoid being deported. Very similar to what is happening in the United States right now.

My question is, do you consider the birthing of an, and I'll borrow a less than favourable term, "anchor baby", morally acceptable, considering it circumvents the due process of immigration? Or do you think this is perfectly acceptable, and should be left as it, as an exploitable loophole?

jimhacking37 karma

I'm glad that you brought up the issue of "anchor babies."

Simply having a child born in the U.S. gives you know status or protection from deportation.

The U.S. deports the parents of U.S. citizens all the time.

A child born in the U.S. cannot convey an immigration benefit like a green card to their parents until the child turns 21. So unlikely to offer any immediate protection.

AllAboutMeMedia9 karma

Can you talk a little bit about what the typical immigration process is, how long it takes to get legal permanent resident status, and what the average costs are to becoming a legal immigrant in the US.? I ask because there is this idea that anyone in the U.S. that is here 'illegally' should get deported and just easily follow the legal immigration process.

jimhacking32 karma

This is a good question.

Some people often ask why people don't just get in line.

Why don't they just follow the law?

For the millions of people in the U.S. without status, there is no way to get legal permanent resident status (in most cases).

No fine to pay.

No forms to fill out.

No path.

For those from other countries who want to come here, they need a U.S. citizen family member to sponsor them or an employer to sponsor them. Without that, the only ways to get LPR status would be by claiming asylum for fear of returning back home or through the diversity visa lottery. Those are the four ways to get LPR status.

The process can take years and cost thousands of dollars.

For instance, if a US citizen wanted to sponsor their wife from Mexico to come to the U.S. it would take about 14 months and, with legal fees, cost around $5000. But to sponsor their brother or sister, the wait is over 20 years.

Similarly, the wait for some green cards for Indian nationals on the employment side could be 10 years or more.

BloodAnimus8 karma

How does it make sense to have our country bear the children of people who can't legally reside here? It's unlawful to let their parents reside here, and immoral to separate the children from their parents (barring serious criminal activities). It's also unfair to our legal immigrants turned citizens.

jimhacking32 karma

There are many children born in the U.S. to immigrants with valid immigration status.

Dowsererted7 karma

I'm an expat and have lived in a number of countries that do not have birthright citizenship. For example, someone from South Korea comes to America and has a child. That child is instantly a citizen of the US. If a US citizen gives birth in Korea they must present the child to immigration for a visa. No citizenship is automatically granted even if the child grows up in Korea and has never lived in another country.

Is it true that most countries of the world do not have birthright citizenship? Why shouldn't Congress re-evaluate the idea of birthright citizenship if most other countries do not practice the idea?

As a side note, I am planning to bring my foreign-born wife to America. It took us 10 years to raise the capital so that I can sponsor her visa. The alternative was to be without my wife for 6-12 months while I worked in the US. I do not support birthright citizenship or having illegal immigration as a path to citizenship. It isn't fair to make some work so hard for legal citizenship while granting amnesty to those who do not follow the law.

jimhacking31 karma

I think that people who followed the law and completed the immigration process might have the best argument against conferring status to those who did not necessarily follow the law. In other words, I understand your position.

sh1nes7 karma


jimhacking33 karma

It will take more than the EO. Either a Constitutional amendment or a really convoluted legal decision from the Supreme Court.

sneaksweet5 karma

I'm a birthright citizen, my parents legally immigrated here in the early 80's from Europe. My father passed before becoming a citizen, and my mother became a citizen in the late 90's when I was in 4th grade. On the super ridiculously rare chance that Trump's comments turn into action in getting rid of the 14th amendment, what then would happen to me or my younger brother? What kind of impact does this have on many people in similar situations to myself?

jimhacking310 karma

They won't be coming back to undo citizenship to those previously granted.

That would be nearly impossible.

But an interesting question and I understand why you are concerned.

ImSeekingTruth4 karma

Do you believe that someone who enters our country illegally is a criminal?

jimhacking35 karma

They can be. But most of our immigration laws are civil.

hubbyofhoarder3 karma

It seems like the law is crystal clear here:

The 14th amendment to the US Con. is clear: If you are born in the United States and subject to its jurisdiction, you are a citizen.

According to 31 CFR 515.329 (https://www.law.cornell.edu/cfr/text/31/515.329), any person inside the United States is subject to its jurisdiction.

Further, 31 CFR 515.330 (https://www.law.cornell.edu/cfr/text/31/515.330) defines a person within the United States as "Any person actually within the United States".

What Trump and Trumpeters don't understand is the issue of jurisdiction. If you are a person and on US soil, you are subject to the jurisdiction of the United States. There is no exception for immigrants of any kind (temporary, legal, illegal, documented, undocumented) or visitors. All of those folks (and citizens) are subject to the laws of the US. It *has* to be so. If undocumented immigrants weren't subject to US jurisdiction they couldn't be deported or charged with crimes; both of those things are legal matters tried under the laws of the US.

The only carveout for US jurisdiction is for those on diplomatic passports; those folks are not subject to US law pursuant to treaty obligations with their home countries.

The "most countries" argument is irrelevant. The above is what our law says in clear and unambiguous language. Lawyers certainly have tricks up their sleeves. One of those tricks is interpreting laws by "the clear language of the statute". There is no wiggle room here. Trump will lose this one, and he knows it. Trump is simply throwing meat to his base prior to the mid-terms.

jimhacking34 karma

Very well said and thanks for the citations.

-P4nda-1 karma

Should the executive order happen and be upheld by courts, would citizens who had gotten their citizenship this way have it revoked retroactively? If so is this even legally permissible?

jimhacking32 karma

I think that would be almost impossible.

irvingstark0 karma

What did we do when imigrants came through Ellis Island? Why did it change and why do we no longer offer refuge to those seeking assylum in our country? It seems it changed long before 9-11.

jimhacking32 karma

Chris Wallace said on Stephen Colbert last night that only 10% of people get asylum.

That is untrue. It is closer to about 50 percent.