Can Parents Be Asked To Prove Their US Citizenship For Their Children’s Passports?

The US State Department has proposed requiring parents and legal guardians to provide proof of their own citizenship or immigration status when applying for passports for their children, according to draft guidance reviewed by Reuters. The move is part of the Trump administration’s effort to implement a new executive order restricting birthright citizenship in certain circumstances.

The draft guidance would require parents to submit documents such as a US passport, birth certificate, I-94 form or legal permanent residency card when applying for a child’s passport. The information would be used to determine whether the child qualifies for citizenship under President Donald Trump’s August 6 executive order. The order targets “birth tourism” and expands the circumstances in which a child could be denied citizenship, but it is facing legal challenges in federal court.

What would change for children’s passport applications?

Currently, parents applying for passports for children born in the US generally need to prove their relationship to the child and provide photo identification. They are also asked to indicate on the application whether they are US citizens, but they are not required to submit supporting documents proving their own citizenship.

Under the proposed guidance, parents or legal guardians would have to provide evidence of their citizenship or immigration status as part of their child’s passport application.

A valid US passport or birth certificate could be submitted as proof of citizenship. Parents could also provide an I-94 form or legal permanent residency card as evidence of their immigration status.

“The Department will require parental information and evidence of parental citizenship or immigration status as part of its determination ‌whether the ⁠applicant is subject to EO 14418,” the State Department draft guidance reads, citing the executive order number.

Reuters reported that the draft guidance is the first detailed look at how the State Department could enforce Trump’s August 6 executive order through the passport application process.

What does Trump’s August 6 order seek to change?

Trump’s earlier executive order on birthright citizenship would have granted automatic US citizenship at birth only to children with at least one parent who was a US citizen or a lawful permanent resident, known as a green card holder.

The US Supreme Court found the order unlawful. In a 6-3 ruling, the majority held that that it violated the Citizenship Clause of the Constitution’s 14th Amendment.

Trump’s August 6 order is narrower and focuses on “birth tourism”, in which women travel to the United States to give birth so their children can obtain automatic citizenship.

The order would also withhold citizenship from children in certain circumstances involving their parents. These include cases where a parent works for a foreign government in the US, is engaged in fraud or a commercial transaction to obtain citizenship, or is classified as an “alien enemy”.

The White House referred Reuters questions about the proposed passport requirements to the State Department. State Department spokesman Tommy Pigott said that “President Trump has been unequivocal that ​this Administration will protect the meaning and value of American citizenship, full stop, and that includes making sure our passport adjudication process fully ​reflects that standard."

Why is the order facing legal challenges?

Trump’s August 6 order could still be blocked in court. Lawyers pursuing class-action lawsuits on behalf of babies who would be deprived of citizenship under Trump’s initial order have asked two different federal judges to prevent his latest order from taking effect.

One of those lawsuits is before US District Judge Deborah Boardman, who was appointed by Democratic President Joe Biden.

At a hearing on Friday in Greenbelt, Maryland, Boardman voiced scepticism about what she called Trump’s unprecedented order. She also allowed the plaintiffs to revise their lawsuit so she could consider whether to block it.

The Justice Department has argued that a restraining order would be inappropriate and that the legal challenge was premature because federal agencies had yet to issue public guidance on how the president’s directive would be implemented.