Born in the United States, But Not a Citizen? Historical Evidence and Diplomatic Immunity in Birthright Citizenship Cases
The Ninth Circuit ruled that a man born in the U.S. to a foreign diplomat from Nicaragua was not a birthright citizen because he was not “subject to the jurisdiction” of the United States at birth, despite the government erroneously issuing him passports and recognizing him as a citizen for nearly seventy years.
Few principles in U.S. constitutional law feel more settled than birthright citizenship. The Fourteenth Amendment declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” From the Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark to modern jurisprudence, the understanding has been that birth on U.S. soil—jus soli—confers citizenship, with limited exceptions.
But what happens when those exceptions come into play? That was the difficult and deeply human question presented in Roberto Moncada v. Marco A. Rubio, Case No. 23-55803, 2025 WL 2406425 (9th Cir. Aug. 20, 2025 decided by the Ninth Circuit in August 2025. At issue was whether Moncada, a man born in New York City in 1950 to a Nicaraguan diplomat, was entitled to U.S. citizenship. The Ninth Circuit Court of Appeals’ decision affirms a harsh truth: citizenship, however long and sincerely held, is not a promise but a legal status, and the government can revoke it when it discovers a foundational error, no matter how tragic the consequences.
The Life and Times of Roberto Moncada
Roberto Moncada was born in New York City in July 1950. His father, Dr. Moncada, was a Nicaraguan national working for his country’s permanent mission to the United Nations. For nearly seventy years, Moncada’s life was indistinguishable from that of any other American. He lived, worked, and built a life in the United States, secure in his identity as a U.S. citizen. This identity was not assumed; it was officially confirmed—repeatedly. On five separate occasions, Moncada subscribed the oath of allegiance, and five times, the U.S. government issued him a passport. As the district court poignantly noted, “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’s consistent position for decades was that Moncada’s father’s apparent status as a Nicaraguan consul did not confer full diplomatic immunity on his children. Therefore, under the Fourteenth Amendment’s Citizenship Clause, Roberto Moncada was born “subject to the jurisdiction” of the United States and was a citizen by birthright.
The Fourteenth Amendment and Diplomatic Immunity
The entire case hinged on a single phrase in the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” There was no dispute that Moncada was born in the United States. The pivotal question was whether he was born “subject to the jurisdiction thereof.”
This clause has long been understood to exclude children born to foreign sovereigns or their accredited diplomats. This exception is rooted in the principle of diplomatic immunity, a cornerstone of international relations that ensures diplomats can perform their duties without fear of coercion or harassment by the host state. This immunity is not personal but derives from the sovereignty of the sending state. Consequently, it extends to the diplomat’s family members forming part of their household, rendering them also immune from U.S. jurisdiction.
The legal distinction crucial to Moncada’s case is the difference between a diplomat (like an ambassador or attaché) and a consul.
• Diplomats (Public Ministers): These individuals represent their sovereign’s political interests. They are received by the President under his Article II, Section 3 power to “receive Ambassadors and other public Ministers.” They and their families enjoy full diplomatic immunity from U.S. civil and criminal jurisdiction.
• Consuls: These officials represent their country’s commercial and citizen-service interests in the host country. Their admission is typically governed by treaty, not the President’s constitutional duty. They hold immunity only for their official acts and are otherwise subject to U.S. jurisdiction like any other foreign national.
Therefore, if Dr. Moncada was an attaché (a class of public minister) in 1950, his son Roberto was born immune from U.S. jurisdiction and was not a birthright citizen. If, however, Dr. Moncada was a consul, Roberto was subject to U.S. jurisdiction and was a citizen from the moment of his birth.
The Reversal: A Passport is Revoked
In 2017, while attempting to renew his passport, Moncada triggered a renewed government inquiry into his father’s status nearly seven decades prior. After reviewing its archives, the State Department concluded it had been “wrong all along.” It determined that Dr. Moncada had, in fact, served as an attaché to Nicaragua’s U.N. mission in 1950, not a consul. This meant he and his family possessed full diplomatic immunity.
The government’s conclusion was stark: Roberto Moncada was never a U.S. citizen. In 2018, it revoked his passport, informing him he “did not acquire U.S. citizenship by virtue of [his] birth here.” The foundation of his seven-decade-long life was abruptly pulled out from under him. Moncada sued under 8 U.S.C. § 1503(a), seeking a declaratory judgment that he is a U.S. national. At trial, the Secretary of State’s key piece of evidence was a “Certificate” dated April 14, 2020—seventy years after the fact—executed by a State Department official. It stated that Dr. Moncada and his family enjoyed full diplomatic immunity from April 1950 to March 1955, covering the time of Roberto’s birth.
The government argued this Certificate should be conclusive and binding on the court, requiring it to rule against Moncada without further inquiry. The district court rejected this sweeping claim of executive authority but, after reviewing the full record of historical documents, still found by “clear and convincing evidence” that Dr. Moncada was indeed an attaché. It thus denied Moncada’s claim, lamenting, “It is impossible to conclude that this is justice.”
The Ninth Circuit Deliberates Between Executive Power and Judicial Duty
On appeal, the Ninth Circuit was faced with two core questions:
1. Was the State Department’s 2020 Certificate conclusive proof of Moncada’s non-citizenship, forcing the court to ignore all other evidence?
2. If not, did the district court err in finding the government had met its high burden of proof?
1. The Certificate: Sword vs. Shield
The government’s argument relied heavily on a line of cases, primarily In re Baiz (1890), which hold that the President’s decision to receive a foreign diplomat is a political act conclusive upon the courts. The Secretary argued that the Certificate was the modern embodiment of this principle and must be accepted as the final word.
The Ninth Circuit, in an opinion by Judge Johnstone, drew a critical distinction. It agreed that the President’s act of reception is conclusive. However, the court held that a modern certification about that historical fact, especially one created in the heat of litigation, is not. The court reasoned that the Constitution charges the judiciary, not the executive, with the ultimate duty to resolve individual claims of citizenship, a “precious right.”
The Ninth Circuit meticulously analyzed the precedent, showing that even in Baiz and Jones v. United States (1890), the Supreme Court never simply accepted a certificate at face value. Instead, it engaged in a detailed examination of the executive branch’s contemporaneous records—letters, registries, and communications—to determine “what the president … has actually done.”
The Ninth Circuit distinguished the use of such certificates as a “shield” (e.g., to claim immunity from prosecution) from their use as a “sword” to strip a person of citizenship. In the former, the government’s interest is immediate and operational. In the latter, an individual’s most fundamental status is at stake, warranting a more searching judicial inquiry, especially when other executive records conflict.
The Ninth Circuit’s holding was clear: while the Certificate is important evidence, it is not conclusive. Courts must consider it alongside the entire executive branch record to determine the historical facts for themselves. This preserved the judiciary’s role as a check on executive power in matters of individual liberty.
2. Weighing the Conflicting Historical Record
Having established its right to review the full record, the court then assessed whether the district court “clearly erred” in its factual finding. The legal standard was demanding. Because Moncada had produced “substantial credible evidence” of citizenship (his five passports), the burden shifted to the government to prove his non-citizenship by clear and convincing evidence.
The government’s evidence was persuasive:
The “Blue List”: An official August 1950 U.S. registry entitled “Members of Delegations to the United Nations Entitled to Diplomatic Privileges” listed Dr. Moncada as an “Attaché.”
• The KARDEX: The official internal biographical registry for diplomats listed Dr. Moncada as “Attaché” and included his wife and children (though curiously, not Roberto by name).
• U.N. Speeches: Records showed Dr. Moncada addressed the U.N. General Assembly on budgetary matters—a task the court found more consistent with a diplomatic than a consular role.
• The 2020 Certificate: While not conclusive, it was still evidence of the executive’s current, researched position.
Moncada presented compelling counter-evidence:
• An Exequatur, also known as letters patent: A May 1949 document signed by President Truman himself recognized Dr. Moncada as “Consul of Nicaragua at New York.”
• Birth Certificate: Moncada’s own birth certificate listed his father’s occupation as “Consul.”
• Absence from Records: His name was missing from the KARDEX list of Moncada children, hinting at a possible administrative oversight regarding his status from the very beginning.
• Decades of Recognition: The most powerful, though non-documentary, evidence was the government’s own seventy-year-long recognition of his citizenship.
Faced with this conflicting evidence, the district court, as the fact-finder, had to weigh it all. It found the government’s documentary evidence from the 1950s more compelling and credible on the specific question of diplomatic title than the evidence suggesting a consular role. The Ninth Circuit, applying a highly deferential “clear error” standard of review, concluded it could not second-guess this weighing of evidence. It was not left with a “definite and firm conviction that a mistake had been committed.” Therefore, it affirmed the district court’s finding.
A Just Result? The Triumph of Formality Over Equity
The most haunting part of the opinion is its acknowledgment of the profound injustice Moncada suffered. Both the district court and the Ninth Circuit openly expressed their dismay. The government conceded its mistakes created a “very unfortunate and regrettable situation.” Yet, the court concluded, “as inequitable as this result is, courts lack the equitable power to remedy the government’s errors by granting Moncada citizenship.”
This is the brutal elegance of the rule of law. The court’s duty was not to achieve a fair outcome for Roberto Moncada, the man, but to apply the law to the facts of his birth. The Fourteenth Amendment’s grant of citizenship is formalistic: it is restricted only by “place and jurisdiction.” The court found that due to a legal status entirely outside of his control, Moncada was never subject to that jurisdiction. The government’s subsequent, decades-long error could not create jurisdiction where the Constitution said there was none. To grant him citizenship as a remedy for bureaucratic failure would be to exercise a power of naturalization reserved solely for Congress.
The Enduring Implications
Moncada v. Rubio serves as a sobering lesson with several key takeaways:
1. The Limits of Executive Power: The executive branch cannot unilaterally resolve factual disputes about citizenship simply by issuing a certificate. Its historical actions are subject to judicial scrutiny, ensuring a balance of power protects individual rights.
2. The Fragility of Status: Citizenship, while called a “right,” is a legal status dependent on specific facts. This case is an extreme example of how that status can be vulnerable to re-examination based on newly discovered or re-interpreted historical records.
3. Form Over Fairness: The case highlights the sometimes-cruel primacy of legal formalism. An outcome can be legally correct yet feel profoundly unjust, revealing the limits of the judicial system to address every human tragedy.
4. The Weight of Evidentiary Documents: The outcome hinged on dusty, 70-year-old documents—the Blue List, the KARDEX, the exequatur. These bureaucratic records, seemingly insignificant at the time, ultimately held the key to one man’s national identity, demonstrating the immense power of the archival evidence.
Roberto Moncada lived the life of an American citizen for longer than most people live. Yet, in the eyes of the law, he was never a citizen at all. His case stands as a reminder that the promise of birthright citizenship, though broad and powerful, has precise boundaries.
What Determines the Legal Status of Children Born in the United States to Foreign Diplomats Accredited by U.S. Department of State
According to the USCIS policy manual, when a child born in the United States to an accredited diplomat decides to voluntarily register for legal permanent residence in the United States, he or she will need to submit official confirmation of the diplomatic classification and occupational title of his or her parent at the time of birth. The USCIS will then confirm with the Department of State whether the applicant’s parent was on the Blue List at the time of the child’s birth. If an applicant did not have a parent on the Blue List at the time of his or her birth in the U.S., then the applicant is a U.S. citizen because the applicant did not have a full diplomatic immunity and was therefore subject to U.S. jurisdiction at the time of birth.
Get in touch with the archival and historical researchers, professional genealogists at All Language Alliance, Inc. to inquire about meticulous historical research services to reach defensible conclusions; to obtain an official certified translation of historical records written in any foreign language, including Spanish, Italian, Lithuanian, Portuguese, Chinese, Turkish, Polish, French for submission to the USCIS; and to inquire about sworn Apostille certified translation of U.S. records from English to any foreign language to be accepted by foreign embassies and consulates.
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