“Birthright Citizenship” of Child of Foreign Diplomat Revoked

by Sharon Rondeau, h/t CDR Charles F. Kerchner, Jr. (Ret), blogging at cdrkerchner, ©2025

(Sep. 6, 2025) — In a striking opinion issued last month, a three-judge panel of the Ninth Circuit Court of Appeals affirmed a lower court’s opinion that now 75-year-old Roberto Moncada, though born in the United States, should not have been considered a “birthright” citizen.

The decision was first flagged to this writer by CDR. Charles F. Kerchner, Jr. (Ret), who on August 30 posted to his blog a video from attorney and broadcaster Robert Goveia providing an analysis of the panel’s 25-page opinion.

Born in New York City in 1950 to a Nicaraguan diplomat, Moncada worked in the United States and was issued a U.S. passport on five occasions, the case record states. Nevertheless, the U.S. District Court for the District of California found, and the Ninth Circuit panel affirmed upon Moncada’s appeal, “the government was…wrong all along” (p. 5).

On page 2, the opinion reads:

Moncada was born in New York City in July 1950, when his father, a Nicaraguan national, was working for Nicaragua’s permanent mission to the United Nations. For nearly seventy years, Moncada lived and worked in the United States as an American citizen. Five times he subscribed the oath of allegiance, and five times the government issued him a passport. In 2018, however, the government revoked his passport, telling him he did not acquire birthright citizenship because his father held diplomatic immunity when Moncada was born.

At issue during the litigation was whether Moncada’s father had been considered an “attaché” or a “consul,” as the former encompassed full diplomatic immunity while the latter did not. The opinions of both the district and appellate courts concluded Dr. Moncada’s role to have been an attaché, which excluded the family from qualifying as “subject to the jurisdiction” of the United States as invoked in the 14th Amendment’s citizenship clause.

As Kerchner pointed out, the panel quoted from Emmerich de Vattel’s The Law of Nations (1758), on pages 8 and 9 of its opinion:

Ambassadors and other public ministers hold full diplomatic immunity. Federal law in effect when Moncada was born voided “any writ or process [] sued forth or prosecuted . . . in any [] court[]” against “any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President.” An Act for the Punishment of Certain Crimes Against the United States, ch. 9, § 25, 1 Stat. 117 (1790) (codified at 22 U.S.C. §§ 252–254) (repealed 1978). This remains the law today. See Diplomatic Relations Act, Pub. L. No. 95-393, 92 Stat. 808 (codified at 22 U.S.C. § 254c(a)); 22 C.F.R. § 150.1(a). This is because public ministers represent a foreign sovereign and therefore require “an entire independence on the jurisdiction and authority of the state in which [they] reside[].” Emerich de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns 470 (1758) (London ed., 1797).

In a 2019 Supreme Court ruling, Vattel was described by Associate Justice Clarence Thomas as the “foremost expert” on “the law of nations.” Vattel is also considered by many today to have precisely defined the term “natural born Citizen” which the Framers placed in Article II, Section 1, clause 5 of the U.S. Constitution pertaining solely to the president and commander-in-chief.

The 12th Amendment‘s passage in 1804 extended that requirement to the vice president.

President Trump made “birthright citizenship” one of the key issues of his second term when on his first day in the White House he signed an executive order titled, “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP.”

The order begins:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:

Section 1.  Purpose.  The privilege of United States citizenship is a priceless and profound gift.  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.”  That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race. 

But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.  The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”  Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.  

On July 11, 2011, Legal Policy Analyst John Feere of the Center for Immigration Studies wrote that the State Department often, if not routinely, awarded U.S. birth certificates to the children of foreign diplomats.

The intended scope of the 14th Amendment’s Citizenship Clause has been hotly debated in the context of children born to illegal immigrants. While it appears unlikely that the intent of those who authored the 14th Amendment was to ensure automatic citizenship for children born to illegal and temporary immigrants, some argue that the amendment protects such grants of citizenship.¹

Amid this debate, however, there is one area of solid agreement among advocates on all sides of the debate: In the least, children born to foreign diplomats are not “subject to the jurisdiction” of the United States and are therefore not to be granted U.S. citizenship.²

But even that low standard is not being met.

A lack of direction from Congress has resulted in children born to foreign diplomats on U.S. soil receiving U.S. birth certificates and Social Security numbers (SSNs) — effectively becoming U.S. citizens — despite the limiting language within the Citizenship Clause of the 14th Amendment.

Among the findings:

• Despite Congress’s clear intent to not create a completely universal and automatic birthright citizenship policy, the current application of the Citizenship Clause is so lax that the United States has a de facto universal birthright citizenship policy that denies U.S. citizenship by birth to no one.
• There is no federal requirement that hospitals ask new parents if they are foreign diplomatic staff. State agencies do not instruct hospitals to differentiate between children born to diplomatic staff and those born to U.S. citizens or temporary or illegal aliens. Hospitals issue the same birth certificates to all newborns.
• The Social Security Administration (SSA) does not investigate whether SSN requests are for children of foreign diplomats. Although the agency does recognize that U.S.-born children of foreign diplomats are not eligible to receive SSNs, there is no mechanism in place for preventing such issuance.
• The State Department is currently rewriting the agency’s guidelines on birthright citizenship, signaling a possibly significant departure from current 14th Amendment jurisprudence. The agency claims that children born to foreign diplomats are “entitled to birth certificates.”
• Children of diplomats who receive U.S. birth certificates and SSNs have greater rights and protections than the average U.S. citizen because they can enjoy all of the benefits of U.S. citizenship, but also invoke diplomatic immunity if they break a law. A lack of direction from Congress has created what one might consider a “super citizen” who is above the law.
• In order to end the practice of granting automatic U.S. citizenship to children of foreign diplomats, Congress could author regulations requiring declaration of parental diplomatic status on birth certificate request forms. As an alternative, Congress could require parents to have SSNs before a U.S. birth certificate or SSN is issued to a newborn. While this latter proposal might create better results and be more easily administered, it would have the effect of ending automatic birthright citizenship not just for children of diplomats, but also for children of illegal aliens and temporary aliens — an outcome that is more aligned with the intended scope of the 14th Amendment than the outcome created by current practices.

In his own analysis of Moncada, Kerchner opined:

The court in making their decision cited on pages 8 & 9, the legal treatise of Emer de Vattel, i.e., “The Law of Nations of Principles of Natural Law” in making their arguments and reaching their decision to uphold the District Court’s decision. This is very important for future citizenship case law decisions going forward regarding “Birthright Citizenship” and also “natural born Citizen” cases given how Vattel’s image and legal treatise work has been disparaged by the main stream debaters and Marxist progressives, when challenges to Obama’s citizenship status were brought up over the last 17+ years. The 9th Circuit clearly pointed out how important Vattel’s legal treatise is to U.S. Citizenship status and determination.

The U.S. Supreme Court is expected to take up a challenge to Trump’s interpretation of “birthright citizenship” during its fall term, which commences at the end of this month. Earlier this year, in a challenge to Trump’s order, the high court ruled that “nationwide,” or “universal,” injunctions cannot stand, as the “federal courts” cannot “provide ‘relief that extend[s] beyond the parties'” (p. 33).