Birthright citizenship is embodied in the Fourteenth Amendment of the United States Constitution. The amendment reads, “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.”
The key phrase in the constitutional provision is “subject to the jurisdiction thereof”. The U.S. Supreme Court interpreted this clause more than a century ago in the case of U.S. v. Wong Kim Ark. In that case, the Court held that only two classes of people are excluded from birthright citizenship: the children of ambassadors and other foreign diplomats, and children born to enemy forces engaged in hostile occupation of the county’s territory.
According to the 1995 Foreign Affairs Manual (FAM) of the Department of State, diplomatic agents are immune under international law from the criminal jurisdiction, and with limited exception, also from the civil and administrative jurisdiction, of the receiving state. “For this reason”, the FAM states, “children born in the United States to diplomats to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship.”
The class of foreign diplomats includes foreign sovereigns such as heads of a foreign state on an official visit to the U.S., and accredited diplomatic officials such as ambassadors, ministers, charges d’affaires, counselors, agents, secretaries of embassies and legations, attachés, and other employees attached to the staff of the embassy or legation.
Likewise included are persons with comparable diplomatic status and immunities such as those assigned to the United Nations or the Organization of American States. To determine whether a parent is a diplomatic officer, his or her accredited title must be listed in the so-called “Blue List” of the State Department.
The USCIS also holds the position that birth of the child of a foreign diplomat only creates eligibility for permanent residence later and it provides the procedure for the acquisition of that status. The diplomat’s child must have had residence in the U.S. continuously since birth and have not abandoned residence in the U.S.
The child must file Form I-485 (application for adjustment of status) and attach Form I-508 (Waiver of Rights, Privileges, Exemption and Immunities), Form I-566 (Inter-Agency Record of Rest for A, G, or NATO Dependent), and official confirmation and evidence that the child was born to a foreign diplomatic officer in the Blue List. The parent’s diplomatic classification and occupational title at the time of the child’s birth must be included.
It should be noted that despite the above position of the Department of State and the USCIS, children of foreign diplomats are issued regular birth certificates which make no distinction on whether a parent is a foreign diplomatic representative, and it looks like the people at the local vital records office do not typically ascertain this kind of information. As Mark Krikorian, Executive Director of the Center for Immigration Studies, observed, these children of foreign diplomats could very well use their birth certificates to get Social Security numbers, passports and driver’s licenses, and even register to vote. Without going into the question of who their parents are, these individuals have all the appearance of U.S. citizens.
Certainly, clarification is needed on the issue to avoid any confusion. The current edition of the Foreign Affairs Manual does not provide the needed clarification. It only says: “7 FAM 1100 Appendix J (under development) provides guidance on the issue of children born to foreign diplomats, consuls, or administrative and technical staff accredited to the United States, the United Nations, and specific international organizations, and whether such children are born ‘subject to the jurisdiction of the United States’.”
The number of people who could be tangibly affected by such clarification may be small compared to those who await the resolution of the birthright citizenship issue in relation to illegal immigration. But if this country is really serious about tightening its laws on citizenship, the issue of foreign diplomats’ children ought to demand more attention.