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Son of Man With Diplomatic Immunity, Though Born in U.S., Is Not a Citizen—Ninth Circuit
Court Declines to Hold That Secretary of State’s Determination Is Conclusive
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed a decision denying a claim to citizenship brought by a man, who was born in New York in 1950 to a foreign representative to the United Nations, saying the trial court did not err in finding that the father was an attaché entitled to diplomatic immunity and, as such, his child was not “subject to the jurisdiction” of our laws as mandated by the Fourteenth Amendment’s birthright clause.
However, the court said that a certificate prepared by the U.S. secretary of state in April 2020, declaring that the petitioner “enjoyed diplomatic agent level immunity” at the time of his birth is not conclusive as to that determination, saying:
“The Constitution confers on the President alone the legal duty to receive diplomats and thereby immunize those diplomats from the jurisdiction of the United States. But…whether the President has, in fact, received and immunized a person as a diplomat remains a fact question for judicial inquiry. This is so even when the Secretary certifies one view of a contested executive branch record. And it is especially so when, as in this case, the question of diplomatic immunity conferred under Article II merges into a question of birthright citizenship under the Fourteenth Amendment.”
In yesterday’s opinion, authored by Circuit Judge Anthony D. Johnstone and joined in by Circuit Judges Johnnie B. Rawlinson and Morgan Christen, the court acknowledged jurisprudence favoring giving such certifications conclusive weight but said:
“Only the Court of Appeals for the D.C. Circuit…[has] accepted the Secretary’s certification of an individual’s immunity status as conclusive—despite conflicting evidence to the contrary—both of that status and of a lack of citizenship under the Citizenship Clause….[W]e decline to…allow a contested certificate to serve not as a shield defending a person from judicial process, but as a sword defeating a person’s claim to citizenship.”
Passport Revoked
The question arose after Roberto Moncada filed a complaint seeking a declaration as to his citizenship status in 2019, after the federal government revoked his passport—the latest of five issued to him over the course of nearly 70 years in the country—and told him that he “did not acquire citizenship by virtue of [his] birth.”
At issue was whether Moncada’s father had served as a consul or an attaché for his home country of Nicaragua at the time of the plaintiff’s birth, a designation of significance because only those of the latter category are conferred diplomatic immunity for themselves and their families.
Moncada’s birth certificate lists his father’s occupation as “Deputy Consul” and President Harry S Truman, on at least one occasion, referred to him by that title. Other federal records, however, show that Moncada’s father served as an attaché, and the government said that the work he performed for the U.N. was diplomatic in nature. At a bench trial before District Court Judge André Birotte Jr. of the Central District of California, James Donovan, the minister counselor for the Host Country Affairs Section of the U.S. Department of State, did not produce the official U.N. request for diplomatic privileges relating to the plaintiff’s family or any contemporaneous presidential certificate of reception. Instead, he proffered a certificate, dated April 14, 2020, averring that Moncada’s father “and his family enjoyed diplomatic agent level immunity” at the time of Moncada’s birth.
Birotte declined to give the April 2020 certificate conclusive weight but found, based on the record as a whole, that Moncada possessed diplomatic immunity at the time of his birth and denied his claim to citizenship. However, he decried the decision, saying that “it is impossible to conclude that this is justice,” noting that “[a] child was born in America and told by the United State government…that he was an American citizen” “again and again.”
Fourteenth Amendment
Sec. 1 of the Fourteenth Amendment provides:
“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.”
Johnstone explained:
“Moncada was born ‘subject to the jurisdiction’ of the United States…unless he was born with diplomatic immunity….Under international law principles incorporated into federal law,…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.”
Saying that “[t]he parties agree that, for our purposes, an attaché is a class of public minister that holds diplomatic immunity” while consuls do not, he remarked that “[w]e do not know exactly when and how the President received Dr. Moncada as an attaché, or admitted him as a consul, because the paper trail has faded over the intervening seven decades.”
President’s Duty
Pointing to separation of powers issues raised by the complaint, the jurist wrote:
“The question of a foreign representative’s immunity necessarily implicates the President’s duty under Article II of the Constitution to ‘receive Ambassadors and other public Ministers.’…Yet the Constitution also assigns to the federal courts jurisdiction over ‘all cases affecting Ambassadors, other public Ministers and Consuls,’ which implies a judicial power to determine whether a party is, in fact, a public minister or consul received by the President….And the Constitution vests in Congress the power to establish rules for recognizing citizenship….Finally, Congress directed the judiciary, not the President, to determine citizenship claims.”
Based on this framework, he declared:
“[W]hether the President has, in fact, received a diplomat such that the diplomat’s children are not entitled to birthright citizenship is a question about the Fourteenth Amendment that the Constitution and Congress has charged the courts with answering.”
On appeal, the government asserted that the April 2020 certificate was due conclusive weight on the issue of whether Moncada enjoyed diplomatic immunity at birth, citing the 1890 U.S. Supreme Court decision in In re Baiz, which dealt with whether a Guatemalan official was a foreign minister and declared in the final paragraph of the opinion:
“[W]e do not assume to sit in judgment upon the decision of the executive in reference to the…character of a person claiming to be a foreign minister, and therefore have the right to accept the certificate of the State Department that a party is or is not a privileged person, and cannot properly be asked to proceed upon argumentative or collateral proof.”
Ensuing Jurisprudence
Johnstone pointed to the jurisprudence that followed Baiz and said that those cases have made clear that “we need not credit the Secretary’s certification of a foreign representative’s status, presented during litigation, ‘to the exclusion of all other Executive evidence.’ ”
Acknowledging that “[o]ther circuit courts of appeals read Baiz more broadly,” he said:
“These cases do not address the issue before us: whether the Certificate alone deprives a district court of its fact-finding powers when there is conflicting evidence about whether the President received a person as a diplomat.”
Resolving that question, he commented that “we agree…that the President has the exclusive power to receive diplomats” but concluded:
“While a certificate may be important evidence for courts to consider in making a factual determination of whether the President received a person as a diplomat, it is not conclusive to the exclusion of conflicting evidence of that fact. Rather, it represents the executive branch’s current view of the facts bearing on whether the President did, at some time in the past, receive that person as a diplomat….[W]e consider the Secretary’s certificate in the context of a broader record of executive branch documents.”
Looking to the record as a whole, Johnstone wrote:
“[T]he 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 case is Moncada v. Rubio, 23-55803.
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