Man Denied Birthright Citizenship Over Father’s Diplomat Status

A man born in New York who lived and worked in the US for nearly 70 years isn’t a birthright citizen because his father had diplomatic immunity the year he was born, the Ninth Circuit said Wednesday.

Although the government “repeatedly recognized” 75-year-old Roberto Moncada as an American citizen, having issued him five passports over the last seven decades, a district court didn’t clearly err in finding that the government’s evidence proves Moncada was immune at the time of his birth, Judge Anthony D. Johnstone wrote for the US Court of Appeals for the Ninth Circuit.

“As inequitable as this result is, courts lack the equitable power to remedy the government’s errors by granting Moncada citizenship,” Johnstone wrote.

The ruling comes as President Donald Trump’s administration faces several lawsuits challenging his executive order that denies automatic citizenship to US-born children of noncitizens. The Ninth Circuit in July ruled the order unconstitutional, upholding a preliminary injunction issued by a Seattle federal judge blocking its enforcement.

Moncada’s father was working for Nicaragua’s permanent mission to the United Nations in 1950, the year he was born. The US government “repeatedly affirmed” his father’s status as a consul, which wouldn’t confer diplomatic immunity on his children, therefore providing Moncada birthright citizenship, he contends.

But the government in 2018 reviewed his father’s diplomatic status, and concluded he’d served as an attaché when Moncada was born. An attaché holds diplomatic immunity, which extends to children. The government revoked Moncada’s passport and informed him he wasn’t a birthright citizen.

Moncada sued the government, challenging its findings.

‘Ambiguities and Gaps’

The “ambiguities and gaps” in official records led to conflicting evidence to be presented to the district court. Moncada presented documents, including his birth certificate, that list his father’s occupation as “Deputy Consul.” But a 1950 UN document lists his father has both consul and attaché, and several government records show he served as an attaché .

The government also produced a 2020 certification stating Moncada’s family had diplomatic immunity when he was born. The district court declined to give the certificate conclusive weight as argued by the government, but still found that the evidence showed Moncada’s father was an attaché at the time of his birth.

The Ninth Circuit rejected the government’s argument that the certificate is conclusive, given conflicting evidence in the record as to whether the president received Moncada’s father as a diplomat when his son was born. Although the president has the exclusive power to receive diplomats, that doesn’t bind courts when the executive produces a certificate in an attempt to resolve disputed facts over whether the president “has actually done so,” Johnstone wrote.

Still, “on the record before it, the district court did not clearly err in finding that Dr. Moncada held diplomatic immunity when his son was born,” the panel said.

Judges Johnnie B. Rawlinson and Morgan Christen joined the opinion.

US Law Center represents Moncada.

The case is Moncada v. Rubio, 9th Cir., No. 23-55803, 8/20/25.