The Post & Email by Sharon Rondeau, h/t CDR Charles F. Kerchner, Jr. (Ret), blogging at cdrkerchner 9/6/2025
In a striking opinion issued last month, a three-judge panel of the Ninth Circuit Court of Appeals affirmed a lower court’s opinion that now 75-year-old Roberto Moncada, though born in the United States, should not have been considered a “birthright” citizen.
The decision was first flagged to this writer by CDR. Charles F. Kerchner, Jr. (Ret), who on August 30 posted to his blog a video from attorney and broadcaster Robert Goveia providing an analysis of the panel’s 25-page opinion.
Born in New York City in 1950 to a Nicaraguan diplomat, Moncada worked in the United States and was issued a U.S. passport on five occasions, the case record states. Nevertheless, the U.S. District Court for the District of California found, and the Ninth Circuit panel affirmed upon Moncada’s appeal, “the government was…wrong all along” (p. 5).
On page 2, the opinion reads:
Moncada was born in New York City in July 1950, when his father, a Nicaraguan national, was working 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 him a passport. In 2018, however, the government revoked his passport, telling him he did not acquire birthright citizenship because his father held diplomatic immunity when Moncada was born.
At issue during the litigation was whether Moncada’s father had been considered an “attaché” or a “consul,” as the former encompassed full diplomatic immunity while the latter did not. The opinions of both the district and appellate courts concluded Dr. Moncada’s role to have been an attaché, which excluded the family from qualifying as “subject to the jurisdiction” of the United States as invoked in the 14th Amendment’s citizenship clause.
As Kerchner pointed out, the panel quoted from Emmerich de Vattel’s The Law of Nations (1758), on pages 8 and 9 of its opinion:
Ambassadors and other public ministers hold full diplomatic immunity. Federal law in effect when Moncada was born voided “any writ or process [] sued forth or prosecuted . . . in any [] court[]” against “any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President.” An Act for the Punishment of Certain Crimes Against the United States, ch. 9, § 25, 1 Stat. 117 (1790) (codified at 22 U.S.C. §§ 252–254) (repealed 1978). This remains the law today. See Diplomatic Relations Act, Pub. L. No. 95-393, 92 Stat. 808 (codified at 22 U.S.C. § 254c(a)); 22 C.F.R. § 150.1(a). This is because public ministers represent a foreign sovereign and therefore require “an entire independence on the jurisdiction and authority of the state in which [they] reside[].” Emerich de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns 470 (1758) (London ed., 1797).
In a 2019 Supreme Court ruling, Vattel was described by Associate Justice Clarence Thomas as the “foremost expert” on “the law of nations.” Vattel is also considered by many today to have precisely defined the term “natural born Citizen” which the Framers placed in Article II, Section 1, clause 5 of the U.S. Constitution pertaining solely to the president and commander-in-chief.
More:
https://www.thepostemail.com/2025/09/06/birthright-citizenship-of-child-of-foreign-diplomat-revoked/
