US District Judge Deborah Boardman blocked enforcement of President Donald Trump’s second birthright citizenship order on September 2, granting a classwide preliminary injunction in CASA, Inc. v. Trump. Her 35-page opinion describes Executive Order 14418 as “almost certainly unconstitutional as applied to the certified class.”
Two days later, the Department of Homeland Security (DHS) issued an interim final rule that moves one of the order’s four categories into federal regulation. Its own text concedes the injunction.
Trump signed the order, along with its birth tourism companion, on August 6, five weeks after the Supreme Court struck down his first attempt in Trump v. Barbara.
Who the injunction protects
The certified class covers any child born in the United States after February 19, 2025, to a mother who was either unlawfully present or lawfully but temporarily present. It reaches that child only where the father was neither a citizen nor a lawful permanent resident at the time of birth. That definition matches the class this court certified against the 2025 order.
Boardman enjoined the agency defendants, among them the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security. She did not enjoin the President.
Two provisions survive. Plaintiffs never challenged section 2(d), which covers births in territories where federal statute confers no citizenship, so the court left it alone. Section 3(b), requiring every agency to publish implementation guidance within 30 days, also stands.
The date the government would not swear to
The 2025 order limited itself to children born after February 19, 2025. Its successor names no date at all.
Justice Department lawyers told the court in briefing, and again at an August 28 hearing, that the order reaches only children not yet born. They declined, despite the judge’s requests, to file a sworn statement from the White House to that effect. Boardman took the text as written, finding that it reaches any child meeting its criteria regardless of birth date.
That August 28 hearing produced a denial widely reported as a setback for the plaintiffs. The reason was procedural: Their operative complaint predated the new order, and a court cannot enjoin conduct nobody has pleaded. Judge Boardman granted leave to supplement, and the plaintiffs refiled hours later.
DHS moves the foreign government employee category into the rulebook
DHS filed the rule on September 4, the day it took effect, and it applies to children born on or after that date. Publication in the Federal Register follows on September 9, under docket USCIS-2026-0496. Homeland Security Secretary Markwayne Mullin signed it without notice and comment, invoking both the foreign affairs exception and good cause.
It replaces the narrow term “foreign diplomatic officer” in existing regulations with the broader “foreign government employee.” That term reaches accredited diplomats and embassy or consulate staff who are nationals of the employing state. Officials employed by a foreign government in an official capacity fall inside it, as do staff of international organizations holding immunity.
The definition also carries exclusions. Personal employees hired by individual officials sit outside it, along with third-country nationals and officials visiting in a private capacity.
Amended regulation 8 CFR 101.3(a)(1) places a child born in the United States to a foreign government employee outside US jurisdiction for birthright citizenship purposes. One US citizen parent is the only exception. Those children may instead register as lawful permanent residents on Form I-485, and an approved record carries back to the date of birth.
DHS cannot say how many children the rule reaches, since USCIS has never tracked them as a category. The preamble adds that the department will not apply the rule to members of the certified class unless the government first obtains relief from the Maryland injunction.
Visa enforcement runs on the second order
Executive Order 14419, which targets birth tourism through visas rather than citizenship, sits outside the injunction. Its implementing guidance has not appeared, leaving consular and border officers without a published standard for judging a traveler’s purpose.
Enforcement started anyway. On August 12 the State Department announced a Birth Tourism Prevention Task Force, which reviews the activity of visa holders worldwide, revokes visas, and targets the networks that arrange US births. The department’s fact sheet put the count at more than 600 revocations already.
A parallel motion waits in New Hampshire
Plaintiffs who won Barbara returned to the New Hampshire district court on August 11. They asked it to confirm that its July 2025 classwide injunction already reaches the new order, or to enter a fresh one. No ruling on that motion has reached the public docket.
Boardman invited the government to move to modify or dissolve her injunction once the agency guidance issues. Executive Order 14418 set the deadline for that guidance at September 5.
