Will Having U.S. Citizen Children Prevent Deportation of Undocumented Immigrant?

For many non-citizens who either cross the southern U.S. border illegally or overstay a visa, settling down and giving birth to children might be natural next steps in their family's life. A baby who is born in the United States has, by longstanding constitutional right, become a U.S. citizen automatically. But there are two issues for parents to consider, including:

• How will recent efforts to end birthright citizenship for persons in the U.S. without immigration documents play out in the relevant courts?
• If birthright citizenship remains possible (at least in some parts of the United States), will the parents receive any added rights to immigrate to the U.S.; in particular, to avoid removal (deportation)?

The answers are not simple ones, for the reasons laid out below.

Supreme Court Wouldn't Allow a Judge to Bar Trump's Order Ending Birthright Citizenship Nationwide

Immediately upon taking office in January of 2025, the Trump White House issued an Executive Order (EO) stating that U.S. citizenship will no longer be granted to U.S.-born children whose mother was unlawfully present in the United States in cases where the father was neither a U.S. citizen nor a lawful permanent resident. (The order was extended to children of lawful but temporary visitors, as well.)

Immediately after that, the ACLU and other civil liberties groups and numerous U.S. states filed lawsuits.

The central legal issue is whether children of undocumented persons are covered by the 14th amendment to the U.S. Constitution, which guarantees U.S. citizenship to anyone born in the United States and subject to the "jurisdiction of the U.S. government." This has long been held to apply to virtually every child born here other than diplomat's children (who are largely immune from U.S. law). However, the Trump executive order asserts that parents lacking immigration status are not subject to the jurisdiction of the United States.

The main counterargument from legal experts is that undocumented immigrants must follow U.S. laws, pay U.S. taxes, and so on. What's more, they point out that this order will result in a permanent U.S. underclass of people who potentially (depending on their home country's laws) have no citizenship at all.

A rapid response came from a federal judge in Seattle: Senior U.S. District Judge John Coughenour (a Reagan appointee) put a temporary hold on the order pending further litigation, and reportedly stated, "This is a blatantly unconstitutional order." Other judges in other states' federal courts followed suit, and the matter made its way to the U.S. Supreme Court in the case of Trump v. CASA.

Although many people believe the Supreme Court simply green-lighted the Trump Order, that's not the case. It did not address the constitutionality of the Trump EO. Its decision was more procedural, saying judges in one federal circuit can't issue nationwide orders (as in, orders blocking Trump's EO across the U.S.).

In response, on July 10, 2025, a federal judge in New Hampshire found a new way to block Trump's order restricting birthright citizenship, by certifying a nationwide class for purposes of a class-action lawsuit. The judge prohibited the Trump order from taking effect until the litigation is over. Assuming this judge eventually rules against the Trump order, we can expect the birthright citizenship issue to be taken to the Supreme Court once again, this time for a decision on the heart of the matter, namely the constitutionality of birthright citizenship.

Given the many months it will likely take for all this litigation to be completed, the timeline of when the Trump order would take effect, if upheld, is unclear. The Trump order is NOT retroactive; in other words, children born before the order takes effect to a mother who lacks immigration papers or is in the U.S. temporarily can safely be assumed to hold U.S. citizenship.

Parents of U.S. Citizens Cannot Apply for U.S. Lawful Permanent Residence (a Green Card) Until the Child Turns 21

U.S. immigration law allows U.S. citizens to petition for their parents (among other family members) to receive green cards; but only after the U.S. citizen child turns 21. Staying in the United States without legal permission for all that time could be difficult and lead to negative immigration consequences.

Leaving the U.S. with the child is the safer option, if one is willing to embark on a long-term plan of having the child return as an adult and then petition for the parents. But since the subject of this article is whether the U.S. citizen child can help the parents avoid deportation, that's a topic that we're assuming isn't as relevant or attractive to readers.

Parents Who Entered the U.S. Illegally and Stayed Might Now Be Inadmissible

Anyone who entered the U.S. illegally (without inspection) faces further complications in seeking to obtain a green card through family.

When the child turns 21 and petitions for them, they won't be able to stay in the United States to complete the green card application through the process known as "adjustment of status." (Only parents of U.S. citizens whose last entry to the U.S. was a legal one can do that.) Instead, they will need to go to a visa interview at a U.S. consulate.

The consular officer will then inquire as to whether each parent is "inadmissible" on various grounds; in particular, for having spent more than 180 days (six months) in the U.S. illegally while over the age of 18. If so, the person might be barred from the U.S. for either three or ten years. See How soon can the U.S.-born child of an undocumented immigrant petition for the parent? for additional discussion of this issue.

Some people can potentially apply for a waiver of the unlawful presence ground of inadmissibility, but only if they can prove that being denied the visa would cause extreme hardship to their own U.S. citizen or lawful permanent resident parents or spouse or U.S. citizen fiancé. Hardship to U.S. citizen children does NOT count in this context.

The U.S. Citizen Child Will Need to Qualify as a Financial Sponsor

After turning 21 and petitioning for the parents, the child will need to be living in the United States and earning enough money to serve as the parents' financial sponsor, in order to ensure that they will be supported at a level that takes them 125% or more (in most cases) above the U.S. Poverty Guidelines. That could be a tall order for a child of that age. But it could be overcome if the family has enough assets to make up the difference.

Avoiding Deportation Based on U.S. Citizen Children

Another relevant government policy you might have heard of is known as "prosecutorial discretion" (PD) or "deferred action." Because U.S. immigration enforcement authorities ("ICE") cannot deport everyone, they typically concentrate their efforts on high priority cases such as criminals, and drop the cases of people with many ties to the United States, including family.

By granting "prosecutorial discretion," the authorities wouldn't give the parents of a U.S. citizen a green card or anything like it, but they would promise not to deport them for the present.

However, under the 2nd Trump Administration, PD has become extremely difficult to obtain.

Cancellation of Removal a Possible Remedy in Removal Proceedings

Even undocumented parents who are placed into removal proceedings might not be out of luck. If they have been living in the U.S. a long time, it might be possible to apply for what's called Cancellation of Removal (under I.N.A.) § 240A(b)(1)(D)), based on:

1. having lived (been "continuously physically present") in the U.S. for at least ten years
2. a showing that removal ("deportation") from the U.S. would cause "exceptional and extremely unusual hardship" to a qualifying relative or relatives who are U.S. citizens or lawful permanent residents (most likely the child)
3. a showing of "good moral character," and
4. proof of not having been convicted of certain crimes or violated certain laws.

Getting Legal Help

Living in the U.S. illegally in hopes of eventually immigrating is something that immigration law discourages, with numerous specific consequences. Your best best is to consult with an experienced immigration attorney.