Esther Yoo, Professor at the William S. Richardson School of Law, joins producer/host Coralie Chun Matayoshi to discuss what happens to the children of immigrants including those illegally brought to the United States as children, birthright children born in the United States to illegal immigrants, and will families be split apart in the process? Q.  The Trump administration has pledged to carry out a mass deportation of immigrants on Day 1.  It sounds like the Trump administration will try to use any and all means to execute its mass deportation plan.  Who will they go after first? From the statements of future Trump administration officials like Stephen Miller and Tom Homan, it sounds like ICE will prioritize noncitizens who are being held in jails and prisons first. These removable noncitizens are generally the easiest for ICE to find because of programs like Secure Communities. ICE, however, has always prioritized this group for enforcement, no matter which administration. The Biden administration prioritized filing deportation cases against those who were recent border crossers or who presented a national security threat or had a serious criminal conviction. ICE was told not to file cases or consider dismissing cases against those noncitizens who did not fall into these categories (exercising their "prosecutorial discretion"). For example, if a lawful permanent resident was placed in removal proceedings because of a petty misdemeanor drug possession conviction, ICE under Biden would have likely dismissed the removal case. The new administration will likely change that practice and tell ICE attorneys to prosecute all cases, no matter how minor the offense. The next easiest group for ICE to remove are noncitizens with existing orders of removal. When a noncitizen already has an order of removal and is found within the country, ICE can simply "reinstate" their removal and physically deport them without having the noncitizen go in front of an immigration judge and have a chance to argue their case in a hearing. People are perhaps the most concerned with undocumented immigrants who have lived here for a long time, have family and community ties, and have no or a very minor criminal record. This group includes recipients of Deferred Action for Childhood Arrivals (DACA), undocumented immigrants who were brought to the United States as young children. In a recent interview, President-elect Trump said he is planning to “protect” DACA recipients, but during his first term, he tried to end DACA and was stopped by the Supreme Court, which said his administration didn’t follow the proper procedures to end it.  So, it’s unclear whether he is actually planning to protect them.  Many of the longtime undocumented also have U.S. citizen children and live in "mixed-status" families. Hawaii has over 50,000 undocumented people, many of whom have U.S. citizen family members. Deporting this group would be the most disruptive and the most destructive of our communities. Here, Miller and Homan have talked about re-starting workplace raids, a practice that generally did not happen under Biden.  President-elect Trump has also indicated that he plans to end “twilight” statuses (statuses that give the holder permission to stay here and work but doesn’t provide a pathway to a green card or citizenship), like parole and Temporary Protected Status. Temporary Protected Status is a form of humanitarian relief for nationals of certain designated countries, such as Afghanistan, El Salvador, Haiti, and Ukraine. If these groups don't have alternate pathways to lawful status, they would be at risk of deportation to countries where they could experience persecution and conflict. Q.  The last time President-elect Trump was in office, Immigration and Customs Enforcement (ICE) border czar Tom Homan executed a family separation policy that detached over 5,500 children from their parents.  As of April 2024, over 1,400 minors have still not been reunited with their parents.  Do unaccompanied minors have any rights when crossing the border?  Children in immigration custody have certain protections. If a child is unaccompanied, meaning they came to the United States without a parent, ICE hands them over to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services. ORR is supposed to find their closest relative and send the child to that person, who is called their “sponsor.” Some of the children end up with cases filed in Immigration Court, and some do not.  The rules governing the release of, and conditions of detention for, migrant children largely come from a settlement agreement called the Flores Agreement. This litigation began in 1985, when a Hollywood actor found out through his maid that the Immigration and Nationality Service (INS, the ICE of that time) was detaining young migrant girls in a deserted motel in Los Angeles. INS was detaining them with unrelated adults and strip searching them. The actor alerted a couple of constitutional lawyers, who sued the government. The case wound its way through the courts and finally settled in 1997 during the Clinton administration. The settlement agreement outlined how long minors could be kept in immigration custody, who they should be released to, and what the conditions of their detention should be, i.e. “safe and sanitary.” The settlement agreement was also a “consent decree,” so that the court kept some involvement in the case. Q.  What about children who come with their mothers or other relative – are they separated while their asylum case is pending?  For many years, the Flores case was relatively quiet, until 2014, when the plaintiffs came back to ask the court to order the government to release children who were in immigration custody at the border.   At this time, the Obama administration had a policy of detaining children who came accompanied by their mothers while their asylum cases were pending. This meant that a child could be held in detention for years since asylum cases can take a long time to resolve, particularly if there are appeals.  By this time, the original judge on the case had passed away, so by lottery the case was reassigned to Judge Dolly Gee of the U.S District Court of the Central District of California.  I was her law clerk at the time, and she assigned me to work on the motions for this case. Judge Gee held that the rules in the agreement applied to all minors, both unaccompanied and accompanied.  She also held that the parents should be released with their children, provided they could show they were not a public safety risk. The government appealed her decision to the Ninth Circuit, which agreed that the agreement applied to all minors and required the expeditious release of children from immigration custody, but the Ninth Circuit panel disagreed that it also required the release of the parents. When their ruling came out, the Obama administration complied and, to its credit, released the parents with their children to avoid family separation. However, when President-elect Trump was elected the first time and faced the same decision, Trump chose a “zero tolerance” policy that led to the parents being detained while their kids were released from detention, effectively separating parents and children, including babies. The family separation policy, in the Trump administration’s mind, was very intentional, to act as a deterrent to others who might want to come here.  One of the architects of the policy, Tom Homan, is slated to become the head of ICE soon. The government lost track of these children. During the Biden administration, immigrant advocacy groups have been searching for the kids and their parents to reunite them, but as you mentioned, as of April 2024, over 1,400 children have still not been reunited with their parents. Q.  There are four million mixed-status families including 8.5 million U.S. citizens who lived with undocumented immigrants.  Will these mixed-status families be torn apart? About 5.1 million U.S. citizen children live with an undocumented family member. When an undocumented family member is ordered deported, it creates an extremely difficult choice for these mixed-status families: choose either family separation or have the family, including the U.S. citizen members, deported together.  About two thirds (66.3%) of undocumented immigrants arrived in the country as adults; a quarter (25.1%) arrived as children between the ages of five and 17; and 8.6%arrived as children younger than five years old. About 58% of undocumented immigrants speak English proficiently.  As they have settled into their new communities, they have found jobs to earn a living, raised families, bought homes, and actively participated in their local communities. In 2022, 39% of undocumented immigrant households owned their homes. Mass deportation would uproot the lives of at least 1.6 million homeowners. The effects of mass deportation would likely be most acutely felt in California, Texas, and Florida, states that combined are home to nearly half of the nation’s undocumented population. Undocumented immigrants comprised 6.4% of the total population in Texas, 5.5% in California, and 5% in Florida. In Hawaii, there is an estimated 50,000 undocumented persons.  Many undocumented immigrants share their lives with U.S. citizens. Removing them from the country would pull apart four million mixed-status families. Those families include 8.5 million U.S. citizens who lived with undocumented immigrants, 5.1 million of whom are children. These family members of undocumented immigrants would not only suffer from tremendous emotional stress but also face potential economic hardship due to the loss of major income earners in their families. [Source:  https://www.americanimmigrationcouncil.org/research/mass-deportation] In a recent interview, President-elect Trump discussed the deportation of U.S. citizen children with their undocumented parent as the better option. But, in my experience, this is wrong. It inflicts a lot of harm on U.S. citizens, as many of them don’t speak the language of their new countries and don’t fit in culturally. They tend to struggle emotionally and educationally. Depending on the laws of their parent’s home country, they might not even have automatically acquired citizenship in that country from their parents, so our immigration system has forced them to become undocumented in their new countries. Both family separation and deportation of U.S. citizen children are inhumane. Q.  What about children that were born in the U.S. to illegal immigrant parents.  Don’t they automatically become citizens? Birthright citizenship is the citizenship one obtains simply by being born on the soil of the United States.  President Trump and Project 2025 have talked about ending birthright citizenship in the United States.  The conservative legal movement has long wanted to get rid of it because they believe that undocumented immigrants and temporary visitors take advantage of it to give their children U.S. citizenship, and these children are changing the demographics of the United States from being a majority white country to a more pluralistic one. However, birthright citizenship is guaranteed by the Fourteenth Amendment of the Constitution, so it is difficult to change. The Citizenship Clause of the Fourteenth Amendment 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 Fourteenth Amendment came about, of course, after the Civil War, and the Citizenship Clause was meant to grant citizenship to the newly freed slaves. The application of the Citizenship Clause to other persons beyond black or white came about because of a Supreme Court case called Wong Kim Ark.  Wong Kim Ark was born in the United States to two Chinese national parents. Although his parents had lived in the United States for a long time, Chinese people were not allowed to naturalize. Wong Kim Ark left the U.S. to visit China, and when he came back and tried to re-enter the U.S., he was not allowed to enter. The Chinese Exclusion Acts were in effect at this time, prohibiting further immigration from China. So, Wong Kim Ark sued, arguing that he was a U.S. citizen because the Fourteenth Amendment said “all persons born . . . in the United States” are citizens. The Supreme Court decided in Wong Kim Ark’s favor, which was surprising because this was the same Supreme Court that decided in Plessy v. Ferguson to enshrine the racist principle that “separate but equal” is okay. Some historians think that the reason the Supreme Court decided in Wong Kim Ark’s favor is that to end birthright citizenship at the time would have dispossessed a lot of white Americans of their citizenship because immigration to the United States at that time was largely from Europe. Today, conservatives would need to either pass a constitutional amendment or have the Supreme Court reinterpret the Fourteenth Amendment to end birthright citizenship. The former seems impossible. If they did attempt it, it would more likely be through the Supreme Court. There are conservative legal scholars who argue that the jurisdictional clause – “and subject to the jurisdiction of” – doesn’t apply to the children of the undocumented because they are here unlawfully. However, that interpretation seems too broad. In Wong Kim Ark, the Supreme Court limited the application of this jurisdictional clause to children of diplomats and to children of a foreign invading army. Unlike diplomats and a foreign invading army, the undocumented are not trying to avoid obeying all laws. For example, they still have to pay traffic tickets and even pay taxes. Plus, ending birthright citizenship, even if it wasn’t applied retroactively, would cause a logistical mess. There is actually a gap in our laws, which currently recognizes children born in the territory as citizens through the Fourteenth Amendment as well as children born abroad to at least one U.S. citizen parent through the Immigration and Nationality Act.  But there’s no specific mechanism yet to recognize children born here to a U.S. citizen parent because it’s never been necessary due to the Fourteenth Amendment’s guarantee of birthright citizenship. I’m trying to imagine a future where for every child born here in the United States, one or both parents need to furnish evidence of their citizenship or immigration status in order for their children to be recognized as citizens and thinking it will be administratively very inconvenient.       To learn more about this subject, tune into this video podcast. Disclaimer:  this material is intended for informational purposes only and does not constitute legal advice.  The law varies by jurisdiction and is constantly changing.  For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.