Expert: Immigrants Used as ‘Poker Chips’ in Birthright Case

John C. Yang has held important positions in U.S. government, but also knows what it’s like to be vulnerable to immigration law. He was, as a kid, among the nation’s many undocumented immigrants — until Reagan-era legislation offered a path to permanent residency and then citizenship for many undocumented immigrants.

Now, Yang, president and executive director of the rights group Asian Americans Advancing Justice – AAJC, is speaking out after a key procedural ruling related to the Trump Administration’s executive order attempting to limit birthright citizenship. The U.S. Supreme Court recently decided that district courts could not restrain such executive orders nationwide. (Update: On July 10, after this issue went to press, a district judge in New Hampshire effectively blocked for now Trump's executive order on birthright citizenship from going into effect through a class action lawsuit, with the possibility of appeal.)

In the late-June, 6-to-3 decision in “Trump v. CASA, Inc.,” the court did not rule on the core issue of birthright citizenship that is protected under the U.S. Constitution, but instead asserted that district courts had issued overly broad rulings by blocking the executive order across the country. The decision, say legal experts, will have broad and confusing legal implications, even if the same injunction relief might be gained by class action suits.

“The administration knows they have little chance of winning on this issue” of birthright citizenship, said Yang. “Instead, they used the lives of millions of immigrants as a poker chip in an effort to curtail nationwide injunctions, which have been one of the best tools we have to hold this administration accountable for unlawful actions.”

In addition to his legal advocacy work at Advancing Justice-AAJC, Yang is longtime attorney who served in the Obama administration as the Senior Advisor for Trade and Strategic Initiatives at the U.S. Department of Commerce. He graduated with honors from George Washington University Law School. Sampan spoke by phone with Yang about the case.

Sampan: Could you start by talking about your own story as an undocumented immigrant?

Yang: I became an undocumented immigrant as a kid. When we came over to the United States, my father had a business visa and unfortunately, when I was around 7 or 8 years old, he was unable to renew that visa. We were undocumented – and for me that was around middle school and high school. It wasn’t until the Immigration Reform and Control Act of 1986 that I was able to have a pathway to citizenship. So this notion of being undocumented … hits very personally to me.

Sampan: I can imagine this is quite common – where young people through no decision of their own – find themselves in a similar situation….

Yang: That is correct …. And for many Asian families, our parents never told us about it, until there was a pathway to citizenship or a pathway to legalization, because this notion of shame, the notion of keeping your family secrets in the family, were deeply held. So it wasn’t until I was an adult that I realized my immigration story.

Sampan: It seems we have two things going on now, one is the ongoing challenges to the birthright citizenship executive order, and the other this early ruling on injunctions. What is your take on the recent decision by the Supreme Court?

Yang: First, it’s important to remember that nothing about this Supreme Court case affects the constitutionality of birthright citizenship. … What this Supreme Court case does do is it limits the ability of district courts to fashion relief for everyone at the same time. Previously, the district court could give you what we call “nationwide injunctions,” so an administration could not implement – in this case its birthright citizenship executive order – without going through further legal proceedings. Now the burden shifts somewhat to the plaintiffs, or the immigrant community, to establish the limitations on what the what the administration can do…..

Sampan: So it seems like this decision, it really kind of throws things – would it be fair to say – into chaos?

Yang: It creates a bigger burden on immigrant rights’ communities. And what I mean by a bigger burden is – and, again, at the end of the day, right now, birthright citizenship is still the law – but our concern is that the administration, and potentially other state and local governments, will try to ignore the law and impose restrictions on immigrants. Then, it will be on the immigrant community to file additional lawsuits to get the relief that they need. So we need to do more to just maintain our constitutional rights.

In other contexts, it should be understood that once you have a constitutional right, someone else has to prove why it should be taken away from you. With this Supreme Court ruling, there is going to be a greater burden to prove – from the immigrant community – that these rights are theirs and can’t be taken away.

(Also) with this Supreme Court ruling, there is a danger that there will be sort of inconsistencies based on where someone lives. That is definitely the concern that we have.

Sampan: And it sounds like you’re not so concerned about the outcome of the specifics of the birthright citizenship case, and that you think it will most likely in the end be maintained?

Yang: We remain extremely confident that birthright citizenship will remain the law of the land….

Sampan: Veering away from this specific order and case, what do you think about the threats to use criminal convictions (after obtaining citizenship) as an excuse to take away citizenship in the case of naturalized citizens and promises and threats to pursue “de-naturalization” of some citizens? While it’s hard for many people to have sympathy for people who’ve committed major crimes, it seems that there is a danger in kind of qualifying someone’s citizenship in this way. (The Department of Justice has recently broadened its guidelines for pursuing revocation of naturalized U.S. citizens.)

Yang: So certainly for anyone who is a citizen, to take away their citizenship because of a crime is a very, very serious matter, and we need to be very careful about that.

But I do want to distinguish between that vs. someone who is not yet a citizen and is seeking to become a citizen, right? Because under the Constitution, there are different legal protections based on these different classes. But you are absolutely correct: This notion that people’s citizenship, which they already have, can be taken away, is something that’s very, very dangerous to us as a nation, because that is something that we can see governments weaponizing in a way that is just fundamentally un-American.

Sampan: Again, this isn’t specific to this case, but in parallel to what’s been happening, there’s been all these other executive orders and crackdowns on various immigrant groups, and now we have this new spending legislation that would expand funding for immigration policing. Do you think we could get to a place where all people will be compelled to carry around some sort of identification to prove, you know, their status, including that they are citizens?

Yang: I have serious concerns about how this so called immigration crackdown is implemented against all Americans, not just American immigrants, but all Americans. We have seen this done in a way that undermines people’s trust in the government. We have also seen this done in a way that American citizens are being targeted. Part of the problem is there seems to be an attempt by this administration to redefine what it means to be American. And the reality is we know that the people who are being questioned further are people that generally are not white, people that are part of communities that are already minorities.

Editor's note: This story has been updated.