Roberto Moncada V Marco A Rubio

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Key Facts

Roberto Moncada was born in New York City in July 1950 to a Nicaraguan national father who 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, subscribing to the oath of allegiance five times and receiving passports from the government. In 2018, however, the government revoked his passport, determining that Moncada did not acquire birthright citizenship because his father held diplomatic immunity when he was born. The legal question turned on whether President Truman received Moncada's father as an attaché (full diplomatic immunity) or as a consul (limited immunity for official acts only). The appellate court affirmed the district court's finding that Moncada's father held diplomatic immunity at birth, meaning Moncada was not subject to U.S. jurisdiction and therefore not a birthright citizen under the Fourteenth Amendment.

Issues

  • The court must determine whether Roberto Moncada's father, Dr. Moncada, held diplomatic immunity when Moncada was born in July 1950. This determination is crucial because if the father held diplomatic immunity, Moncada would not have been born 'subject to the jurisdiction' of the United States under the Fourteenth Amendment, and therefore would not be entitled to birthright citizenship. The court examines whether the President received Dr. Moncada as a public minister (attaché) or as a consul, as these roles carry different immunity levels.
  • The appellate court reviews whether the district court clearly erred in finding that Moncada was not a birthright citizen. The district court found by clear and convincing evidence that Dr. Moncada held diplomatic immunity when his son was born, which meant Moncada was not born 'subject to the jurisdiction' of the United States. The court must determine if the district court's factual findings were clearly erroneous under the clear and convincing evidence standard required in citizenship cases.
  • The Secretary of State submitted a Certificate dated April 2020 asserting that Dr. Moncada and his family enjoyed diplomatic immunity from April 1950 through March 1955. The government argued this Certificate should bind the court as conclusive evidence of Moncada's non-citizenship. The court must decide whether this executive certification can override conflicting historical records and determine if the Certificate alone establishes that Moncada was not born a U.S. citizen.

Holdings

The Ninth Circuit affirmed the district court's judgment denying Roberto Moncada's claim to United States birthright citizenship. The court held that Moncada's father served as an attaché to Nicaragua's permanent mission to the United Nations when Moncada was born in July 1950, which conferred full diplomatic immunity on the family. Because Moncada was born subject to diplomatic immunity, he was not 'subject to the jurisdiction' of the United States under the Fourteenth Amendment's Citizenship Clause, and therefore was not a birthright citizen.

Remedies

The Ninth Circuit Court of Appeals affirmed the district court's judgment denying Roberto Moncada's claim to United States birthright citizenship. The court held that Moncada was not born subject to U.S. jurisdiction under the Fourteenth Amendment because his father, Dr. Moncada, held diplomatic immunity as an attaché to Nicaragua's permanent mission to the United Nations when Moncada was born in 1950. The court rejected the Secretary of State's Certificate as conclusive evidence and reviewed the broader record of executive branch documents, finding clear and convincing evidence that the President had received Dr. Moncada as a diplomat with full diplomatic immunity, which extended to his family including Moncada.

Legal Principles

  • The government must prove lack of citizenship by clear and convincing evidence when a person claims United States citizenship. This standard matches the gravity of proceedings that may deprive a person of citizenship rights to which they may be rightfully entitled.
  • A person claiming United States citizenship bears the burden of producing substantial credible evidence. If met, the burden shifts to the government to prove lack of citizenship by clear and convincing evidence. Evidence of a valid US passport is substantial credible evidence of citizenship.
  • The Fourteenth Amendment's Citizenship Clause excludes children born to foreign ministers accredited to the US government. Courts have the power to determine whether a person was 'subject to the jurisdiction' of the United States, even when the President has received someone as a diplomat. A Secretary's certificate of diplomatic immunity is not conclusive to the exclusion of conflicting evidence.
  • Ambassadors and public ministers (including attachés) hold full diplomatic immunity extending to their families, meaning they are not subject to US jurisdiction. Consuls hold immunity only for official acts, meaning their families remain subject to jurisdiction. The President's reception of a person as a diplomat is conclusive under Article II.

Precedent Name

  • In re Baiz
  • Zivotofsky v. Kerry
  • United States v. Wong Kim Ark
  • Mondaca-Vega v. Lynch
  • Muthana v. Pompeo
  • Wong Kim Ark

Cited Statute

  • U.S. Const. amend. XIV, § 1
  • 8 U.S.C. § 2705 provides that a passport has the force and effect as proof of United States citizenship.
  • Vienna Convention on Diplomatic Relations art. 37, April 18, 1961, 23 U.S.T. 3227
  • Diplomatic Relations Act, Pub. L. No. 95-393, 92 Stat. 808 (codified at 22 U.S.C. § 254c(a))
  • 8 U.S.C. § 1503(a) provides the statutory mechanism for a person claiming citizenship has been improperly denied to institute an action for a judgment declaring them to be a national of the United States.

Judge Name

  • Johnnie B. Rawlinson
  • Anthony D. Johnstone
  • Morgan Christen

Passage Text

  • The Secretary does not cite any statute or regulation providing for such certificates or their evidentiary effect. Instead, the Secretary argues that this passage from Baiz requires a court to hold that the Certificate conclusively establishes an individual's immunity status, to the exclusion of other record evidence. But while Baiz recognized that the decision of the executive to receive a diplomat is conclusive, we do not read it to hold that courts' right to accept the certificate as evidence of that decision also imposes on courts a separate duty to do so.
  • The panel explained that the President's reception of a person as a diplomat is conclusive under Article II. But whether 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.
  • The district court did not clearly err in finding that clear and convincing evidence proved that Moncada was born with diplomatic immunity, and thus did not acquire birthright citizenship. The district court also observed that it is impossible to conclude that this is justice, and we share its concern about this outcome. But as inequitable as this result is, courts lack the equitable power to remedy the government's errors by granting Moncada citizenship.