The Volokh Conspiracy
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Born in N.Y., Lived in U.S. for Nearly 70 Years, Subscribed Oath of Allegiance 5 Times—But, It Turns Out, He Isn't a U.S. Citizen
Was the father a consul or an attaché? It is on such matters that the law sometimes turns.
From Moncada v. Rubio, decided Wednesday by the Ninth Circuit (Judge Anthony D. Johnstone, joined by Judges Johnnie B. Rawlinson and Morgan Christen):
Roberto Moncada was born in New York City in July 1950. His father, a Nicaraguan national, worked 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 Moncada a passport. In the district court's words: "A child was born in America and told by the United States government—his government—that he was an American citizen. And … it told him this again and again and again and again."
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 District Court] 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….
Moncada was born "subject to the jurisdiction" of the United States under the Fourteenth Amendment unless he was born with diplomatic immunity—immunity from the jurisdiction of the United States. Under international law principles incorporated into federal law, and subject to limited exceptions, he held diplomatic immunity if he was born into a diplomatic household. That, in turn, depends on whether the President—Truman, at the time—received Moncada's father, Dr. Moncada, as a public minister, or whether Dr. Moncada served as a consul instead. We therefore begin with the law of diplomatic immunity and the facts that determine whether Moncada held that immunity at his birth.
International law distinguishes between public ministers and consuls. Federal law reflects this distinction. [Details omitted. -EV] …
"All persons born … in the United States, and subject to the jurisdiction thereof, are Citizens of the United States." … When ratified, the Citizenship Clause was understood to exclude non-citizens "who belong to the families of [a]mbassadors or foreign ministers accredited to the Government of the United States." This exclusion incorporated the longstanding international law principle of diplomatic immunity: "the immunity which all civilized nations allow to foreign ministers," and those "privileges which are essential to the dignity of [the foreign minister's] sovereign, and to the duties he is bound to perform." …
A person claiming United States citizenship bears the burden of producing "substantial credible evidence" of that fact. If the person does so, the burden shifts to the government to prove lack of citizenship "by clear and convincing evidence." This clear and convincing burden of proof "matches the gravity of the task" in proceedings, such as this one, that may deprive a person of the United States citizenship to which they may be rightfully entitled….
The district court found conflicting evidence of Dr. Moncada's diplomatic immunity, but it discounted Moncada's evidence as lacking sufficient weight. Along with the Certificate, the Secretary produced the bulk of the evidence at trial: [State Department official James] Donovan's credible testimony about diplomatic processes and records; the U.S. Mission to the U.N. "Blue List," the registry of individuals with diplomatic immunity, which includes Dr. Moncada's name and title as an attaché; the U.S. Host Country Affairs Section's KARDEX registry of biographical information for Dr. Moncada and his family; and U.N. General Assembly records where Dr. Moncada spoke to the body in a diplomatic capacity. Of particular importance are "Blue List" documents because they may "constitute [ ] presumptive evidence that [Moncada] enjoy[ed] diplomatic status." Each piece of evidence shows that Dr. Moncada enjoyed diplomatic immunity when his son was born.
But Moncada presented evidence to the contrary, including President Truman's May 1949 exequatur with Dr. Moncada listed as "Deputy Consul," Moncada's birth certificate that lists his father's occupation as "Consul," and the absence of Moncada's name among the Moncada children listed on the KARDEX. Also, some of Donovan's trial testimony conflicts with the "reasonable—if not inevitable—inference" of Moncada's citizenship status. For example, Donovan testified that he did not have any knowledge of how or where Dr. Moncada spent most of his time while he represented Nicaragua at the U.N. This was an important concession because that information would have been helpful circumstantial evidence of his job description and title. Moncada also relies on various documents noting that Dr. Moncada lacked full diplomatic immunity status, due in part to confusion of the "Blue List" of diplomats at the embassy in Washington D.C. (which did not list Dr. Moncada) with the "Blue List" of diplomats at the permanent mission to the U.N. in New York City (which did list Dr. Moncada). And again, the Secretary did not produce any contemporaneous certification of when, exactly, the President received Dr. Moncada as a diplomat.
Still, as the fact finder, "the district court was entitled to discount this evidence." And "[b]ased 'on the entire evidence,' we are not 'left with the definite and firm conviction that a mistake has been committed.'" Thus, on the record before it, the district court did not clearly err in finding that Dr. Moncada held diplomatic immunity when his son was born. Therefore, Moncada also held diplomatic immunity. And if he was immune from the jurisdiction of the United States at birth, then he is not a birthright citizen under the Fourteenth Amendment….
The district court also observed that "[i]t is impossible to conclude that this is justice," and we share its concern about this outcome. The government, for its part, concedes that its decades of mistakes led to this "very unfortunate and regrettable situation." But as inequitable as this result is, courts lack the equitable power to remedy the government's errors by granting Moncada citizenship.
Formality is a virtue of birthright citizenship. It requires no inquiry into lineage but is "restricted only by place and jurisdiction." Yet when circumstances leave a person immune from the jurisdiction of the United States at birth, this same formality requires a court to "give full effect" to that restriction. Thus, we affirm the judgment of the district court.
Ruth A. Mueller represents the government.
