Case Update (6 July 2023): Moncada v. Blinken, a child born in the U.S. to a diplomatic agent who enjoys full immunities cannot become a U.S. citizen
Diplomatic immunity muddies a lot of international family matters. It also muddies citizenship of a child born in the United States. The child of a diplomatic officer accredited by the U.S. Department of State who is born in the United States does not acquire U.S. citizenship under the 14th Amendment of the U.S. Constitution. These children can, however, choose to be considered lawful permanent residents from the time of birth. In this case, Mr. Moncada, who was born in the United States while his father was serving at the Nicaraguan diplomatic mission to the UN, was told that, because his father did not enjoy full diplomatic immunity, he was entitled to U.S. citizenship. He lived his life in the United States, as a U.S. citizen, until July 27, 2018, when the government "finally (and somewhat curiously) stumbled across its mistake, and Mr. Moncada - two years shy of 70 - received a letter revoking his passport and, in effect, his citizenship."
The court's opinion gives some good detail on how the US Mission to the United Nations maintained records verifying a person's immunity, and may be useful to the lawyer who is working with a diplomat in the United States for their work at a mission to the United Nations.
In or around 2018, the person in charge at the U.S. Mission to the UN for determining levels of immunity was alerted that there were questions as to the level of immunity that Mr. Moncada's father had at the time of Mr. Moncada's birth. The letter sent to Mr. Moncada from the U.S. Department of State on July 27, 2018 stated that it had records purporting to show that Mr. Moncada's father was the "attache' to the Permanent Mission of Nicaragua to the United Nations" at the time of Mr. Moncada's birth. This means that Mr. Moncada's father and the family members of his household were accorded diplomatic agent level immunity pursuant to the UN Headquarters Agreement, and, therefore, Mr. Moncada was "not born subject to the jurisdiction of the United States and [he] did not acquire U.S. citizenship by virtue of [his] birth here". The Department of State had a variety of pieces of evidence, including listings in the "blue book," notations on Mr. Moncada's birth certificate, exequaturs that recognized Mr. Moncada's father's work, comments by his father to the UN General Assembly, requests for his father's registration listing him as "attache'", approval of his identification card, a KARDEX for his father, and the testimony of the person who maintains these records for the U.S. Mission to the UN, and deals with these diplomatic issues. Mr. Moncada noted to the court that the U.S. Mission was "not able to locate in its records the request for privileges and immunities that... as a matter of practice, would have come after the request for registration." But, the testimony provided by the U.S. was sufficient to note that a request would have been made.
All of the evidence produced by the U.S. at trial is contrary to the conclusions the U.S. government reached when granting Mr. Moncada citizenship, and at several points throughout his life. There were past affirmative determinations that Mr. Moncada's father did not possess full diplomatic privileges and immunities at the time of Mr. Moncada's birth. When Mr. Moncada sought visa petitions for several family members based on his U.S. citizenship, the U.S. again examined whether, perhaps, an error had been made, but it was concluded that it had not been.
Despite all these past conclusions that Mr. Moncada was entitled to citizenship because his father did not have full diplomatic status, the court concluded that the evidence before it now undoubtedly confirms that his father did enjoy full immunity, and therefore, Mr. Moncada is not entitled to U.S. citizenship. The court opined that those government officials checking the blue list in the past were checking the wrong blue list (the State Department blue list and not the U.S. Mission to the UN's blue list, where Mr. Moncada's father would be listed on the latter but not the former).
On September 22, 2023, Mr. Moncada has lodged an appeal.