The Ninth Circuit Court of Appeals has just ruled that a man born in New York City in 1950 is NOT an American citizen.
The court affirmed what the Constitution’s framers and generations of Americans have always understood, the Fourteenth Amendment does not grant automatic citizenship to children born in the U.S. to foreign diplomats.
The case involved Roberto Moncada, who was born in New York City in 1950 while his father served as a Nicaraguan attaché at the United Nations.
For nearly seventy years, Moncada lived as an American, holding passports and even swearing oaths of allegiance multiple times.
But in 2018, after reviewing records, the government discovered that his father had served as an attaché, a diplomatic position that carried full immunity, not a simple consul as previously believed.
That detail changed everything. Under the Fourteenth Amendment, only those born “subject to the jurisdiction” of the United States are citizens.
Children of foreign ministers and diplomats are explicitly excluded. Moncada’s father’s immunity meant his entire household, including his newborn son, was outside U.S. jurisdiction.
The court reviewed conflicting evidence, including records listing Moncada’s father as both “Deputy Consul” and “Attaché.” But after weighing the record, most importantly the State Department’s “Blue List” identifying him as an attaché with full diplomatic privileges, the panel concluded that the government had proved by clear and convincing evidence that Moncada was never a U.S. citizen
Moncada filed suit in 2019 to challenge that decision.
Judge Anthony Johnstone, a Biden appointee, wrote in his opinion:
The government repeatedly affirmed that Moncada’s father’s apparent status as a Nicaraguan consul did not confer diplomatic immunity on his children. So, the government explained, Moncada was born “subject to the jurisdiction” of the United States according to the Fourteenth Amendment. U.S. Const. amend. XIV, § 1. And under the Constitution, citizenship was his birthright. But the government was, as the district court put it, “wrong all along.”
In 2018, the government reviewed its records and found that Moncada’s father served as an attaché, not a consul, when Moncada was born. Unlike a consul, an attaché and his family possess full diplomatic immunity.
So, the government now asserted, Moncada was not born “subject to the jurisdiction” of the United States. Therefore, he was not a birthright citizen. The government revoked Moncada’s passport and told him he “did not acquire U.S. citizenship by virtue of [his] birth here.”
Moncada sued for a declaratory judgment that he is a citizen. The Secretary of State responded by producing a recently executed certification of Moncada’s diplomatic immunity at birth (“Certificate”).
The Secretary argued that this Certificate was conclusive evidence of Moncada’s lack of birthright citizenship and was therefore binding on the district court. The district court declined to recognize the Certificate as conclusive.
Still, based on the underlying record of government documents, it held that the Secretary established by clear and convincing evidence that Moncada was not born a citizen because it found, as a matter of fact, that his father was an attaché with diplomatic immunity when he was born. We affirm.
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