‘Subject to the Jurisdiction Thereof . . .’

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.

— 14th Amendment’s Citizenship Clause

The 14th Amendment’s Citizenship Clause contains two requirements for obtaining U.S. citizenship by birth: (1) the birth must have occurred within the United States; and (2) the person born must be subject to the jurisdiction of the United States. Birthright citizenship in the United States is not universal, as the Citizenship Clause makes it clear that birth on U.S. soil, alone, is not sufficient. The debate on birthright citizenship has been centered on Congress’s intent with the second part of this clause, which I detailed in this report: “Birthright Citizenship in the United States: A Global Comparison”.

In sum, it was the sense of Congress that although the 13th Amendment ended slavery, the amendment was not effective in ending continued violations of civil rights, leading to the Civil Rights Act of 1866, which read, in part, “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Two years later, Congress would put this language into the 14th Amendment, though it swapped out the negative clause — “not subject to any foreign power” — for a positive clause: “subject to the jurisdiction” of the United States.

Though there has been a lot of debate in recent decades about what Congress intended by including the “subject to the jurisdiction” language and, subsequently, who should automatically be considered a U.S. citizen at birth, there is agreement among all sides of the debate that, in the least, children born to foreign diplomats are not “subject to the jurisdiction” of the United States and should not be receiving U.S. passports upon birth.

It turns out that even this narrow interpretation of the Citizenship Clause is failing to be properly applied by the State Department as it hands out U.S. passports, according to a troubling case highlighted in a recent Washington Post article discussed below. This is not a surprise as I’ve written two pieces on birthright citizenship in the context of diplomatic births and concluded that the systems in place are insufficient for ensuring that the 14th Amendment is operating as intended:

The State Department’s convoluted processes and interpretations of the 14th Amendment likely contribute to many grants of U.S. citizenship and permanent residency that were not intended by Congress. While it’s good the State Department is attempting to correct past mistakes, Congress should step in and provide the executive branch some clarity that it desperately needs and explain, through simple legislation, that children born to temporarily resident aliens, including children of foreign diplomatic staffers, are not to be considered U.S. citizens or legal permanent residents (LPRs) at birth. Congress made a clarification on the intended scope of the 14th Amendment in the 1920s and extended the Citizenship Clause to children born to American Indians. Congress has never done this for children of tourists, foreign students, diplomatic staffers, or any other category of temporarily visiting aliens. As Circuit Court Judge Richard Posner wrote in a 2003 case, “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.”

State Department Admits Error in Citizenship Grant. Siavash Sobhani received a notice from the State Department that he is not actually a U.S. citizen despite the fact that the State Department issued him a U.S. passport when he was a child some 60 years ago. Sobhani was attempting to renew his passport but instead received a letter from a State Department official who “informed him that he should not have been granted citizenship at the time of his birth because his father was a diplomat with the Embassy of Iran”. The letter read, in part:

As a member of your parent’s household at the time of your birth, you also enjoyed full diplomatic immunity from the jurisdiction of the United States. As such, you were born not subject to the jurisdiction of the United States. Therefore, you did not acquire U.S. citizenship at birth.

But Sobhani’s father didn’t start off as a diplomatic staffer. According to Sobhani, his father was originally in the United States as a “military student”, meaning that he was on some sort of a temporary visa. While in the United States on this temporary visa, he and his wife gave birth to Sobhani’s older brother, Rob, who was born at Fort Leavenworth in Kansas — America’s second oldest Army post — with a congenital condition that required surgery. The State Department issued infant Rob a U.S. passport. Instead of returning home upon the expiration of his temporary visa, Sobhani’s father persuaded the Iranian Embassy to issue him a “temporary job” at the embassy, the goal being to extend the family’s stay in the United States so the newborn Rob could get corrective surgery. Sobhani’s father worked at the Iranian Embassy in October and November of 1961. That November, the second child, Siavash, was born at Walter Reed Army Medical Center outside Washington, D.C.; he also received a U.S. passport. With these passports, both children were determined to be U.S. citizens by the State Department.

A proper reading of the 14th Amendment’s Citizenship Clause would result in no grant of citizenship to either child — they would take on their father’s Iranian citizenship. The father was in the United States on a temporary basis, he was not a permanent resident, and during one of the births he was an official representative of a foreign government. Every person who has debated the Citizenship Clause would conclude that, in the least, Siavash shouldn’t have been given a U.S. passport on account of being born to a foreign diplomatic staffer. But this silly outcome — different children in the same family having different citizenship based entirely on a parent moving from one temporary visa to another — illustrates why this narrower reading of the Citizenship Clause likely isn’t what Congress intended. The simpler, straightforward, and more defensible interpretation of congressional intent is that all children born in the United States to temporarily present foreign nationals are not to be considered U.S. citizens at birth.

The State Department deciding to revoke Siavash’s passport six decades after his birth brings attention to a very messy aspect of the State Department’s muddled practices on the 14th Amendment — discussed in greater detail, below — but it also highlights how foreign nationals sometimes work with their home country’s embassy to game the diplomatic visa process in order to obtain benefits and extended stays in the United States. Undoubtedly many other foreign nationals from a variety of countries have obtained diplomatic visas for the explicit purpose of obtaining a U.S. passport for their newborns; some diplomatic visas allow for births of U.S. citizens and some do not, according to the State Department’s questionable application of the 14th Amendment.

The State Department’s Muddled Approach to Diplomat Births. The State Department has developed a somewhat arbitrary process for making determinations on U.S. citizenship by birth, one that involves two constantly changing lists maintained by the department, unpredictable hiring decisions by foreign governments, and inconsistent reporting of births by foreign government employees — all of which result in a messy and overbroad application of a constitutional amendment. Congress could easily rein in the State Department with a simple piece of legislation declaring exactly who should and shouldn’t be considered a U.S. citizen at birth. Doing so would bring some clarity to the State Department and prevent situations like the one faced by Siavash Sobhani.

A fully defensible reading and application of congressional intent on the 14th Amendment’s Citizenship Clause would result in no temporarily present foreigner being able to give birth to a U.S. citizen child — not a tourist, a guestworker, a foreign embassy employee, or any other category of visa-holder, nor an illegal alien. Congress arguably has declared that U.S. citizens can give birth to U.S. citizens but that foreigners who are subject, or who have allegiances, to foreign countries cannot. In the late 1800s, the Supreme Court held, in one case, that the Citizenship Clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”, but, in another case, that the Citizenship Clause should allow foreign-born individuals who are in the United States as permanent residents to give birth to U.S. citizens. In the 1920s, Congress extended birthright citizenship to children born to American Indians, via legislation.

The State Department, however, decided at some point that foreigners who have diplomatic immunity, on account of being employed by a foreign embassy, are the only category of foreigners who cannot give birth to U.S. citizens. The department issues U.S. passports to pretty much anyone born in the United States other than children born to the highest-ranked foreign officials at embassies. Despite Congress never deliberating diplomatic immunity levels when drafting the 14th Amendment and the Civil Rights Act of 1866 on which the amendment is based, the State Department has developed two lists that it uses to make determinations on citizenship of children born to embassy employees. The two lists are the Diplomatic List, known more informally as the “Blue List”, and the “Employees of Diplomatic Missions Not Printed in the Diplomatic List”, known more informally as the “White List”.

The people on the Blue List are considered to have complete diplomatic immunity from criminal law enforcement and cannot be arrested or detained in most instances. The Biden administration stopped posting the list, but the 2020 version is available here. The numbers of diplomatic staff vary by nation; for example, China has nearly 180 people on the list, Brazil has nearly 60 people on the list, India has 50, and Denmark has 18 people listed. Nearly all of the diplomatic staff on this list also have spouses listed that share the immunity, so it’s a large number of people.

The people listed on the White List are considered to be lower-level employees at embassies and may have certain immunities from U.S. law but are not considered to be foreign diplomatic officers. The number of embassy staffers on the White List is usually much larger than the number of people on the Blue List.

This designation is important when it comes to legal issues involving criminal acts, and one can imagine how foreign embassies might quickly elevate a White List employee to Blue List status after an incident in which the staffer is believed to have committed a crime. But the list is also used by the State Department to determine whether a child born to a foreign embassy employee on U.S. soil should be considered a U.S. citizen.

Of course, countries can decide which of their citizens should be on which lists simply by changing an embassy employee’s title. This makes the list somewhat arbitrary as a staffer’s status can be changed, and new staffers are coming and going all the time. Because foreign governments decide whether their staffers should be on the Blue List or the White List, foreign governments are effectively in charge of birthright citizenship determinations (e.g., an embassy can decide that a pregnant embassy employee enjoying diplomatic immunity should be switched to a lower, White List-level job so that she can give birth to a U.S. citizen). Is that really how Congress intended the 14th Amendment to operate when drafting it in 1868? The U.S. government shouldn’t be operating in a manner that allows Constitution-level citizenship outcomes based on ever-changing lists that are effectively managed by foreign nations.

In the case of Siavash Sobhani’s father, the Iranian government decided to give diplomatic status to one of their citizens who was in the United States on a student visa, specifically so that he could extend his stay in the country and take advantage of U.S. medical care. A choice by Iran — not a choice by the United States — determined Siavash’s citizenship. The State Department’s policies take critical, Constitution-level citizenship decisions out of the hands of Americans and put them into the hands of officials from countries like Iran. On top of that, an apparent recordkeeping mess-up on whether the father was on the White List or the Blue List resulted in a citizenship revocation decades later; this is bad for Siavash, but it’s also bad for Americans because it means that a non-U.S. citizen has been voting in U.S. elections and accessing every other benefit reserved for U.S. citizens for six decades. Again, it’s hard to conclude that the State Department’s interpretation and haphazard application of the Citizenship Clause is what Congress intended when writing the 14th Amendment which, of course, was aimed at ensuring children of freed slaves were born U.S. citizens.

Though it’s public that China has 180 embassy employees with diplomatic immunity — more than any other country — it’s not known how many additional White List employees have come to the United States. Does China have 500 staffers on the White List? Does it have 1,000? Is China or any other country constantly sending new, pregnant employees to their embassy in the United States and giving them White List-level status so that they can obtain U.S. passports for their newborns? Is it common for Blue List staff to switch to the White List level prior to a birth? Is anyone at the State Department even tracking this?

Again, foreign countries are effectively determining who is born a U.S. citizen and who is not because of questionable policies put into place by the State Department. Levels of diplomatic immunity should have no bearing on the citizenship of children born to these foreign officials. Congress should make it clear, via a simple bill, that none of these children are U.S. citizens at birth on account of all of their being born to parents associated with foreign governments and, additionally, on account of their being born to parents who are not permanent residents of the United States. That would be consistent with the 14th Amendment, Supreme Court rulings, and it would relieve the State Department of its arbitrary list keeping.

Diplomats Aren’t Necessarily Informing the State Department of Births. I have spoken with officials at the State Department (in a number of offices), and they explained that it’s difficult for them to keep track of children born to foreign diplomats. The department’s Office of Foreign Missions explained that it is entirely dependent on foreign embassy employees alerting the State Department’s Office of Protocol to the fact that they gave birth to a child on U.S. soil. An official at the Office of Protocol told me that that a list of children born to foreign diplomats would be “impossible to compile” and reiterated that it depends entirely on whether or not the foreign diplomat alerts the State Department to a birth. They also said that it was the Office of American Citizen Services that would make determinations about citizenship in these cases. That office directed me to a section, which, in turn, directed me back to the Office of Protocol, adding, “if someone told you to come to us, and if I’m telling you to go to them, I wonder if there is such a list, and I’m dubious.”

Though there must be some record-keeping on births to diplomatic staff that have been reported to the State Department, and the number of U.S. passport applications for children to diplomatic staff that have been rejected, the fact that this is apparently not readily available is problematic on account of the fact that this record-keeping could shine some light on a fundamental constitutional issue.

At least some people born in the United States are to be denied U.S. passports, according to the Constitution, but to what extent this is actually happening is difficult to measure. It may be that the limiting principles in the 14th Amendment are barely functioning. Births to diplomatic parents might not be reported properly. Perhaps only the mother’s name, and not the father’s name, is being recorded on a birth certificate and a passport application, and perhaps only the father’s name is on the Blue List. Maybe the parents are erroneously listed on the White List instead of the Blue List. Maybe the embassy downgraded expectant parents to the White List only hours before a birth. Maybe the research team adjudicating passport applications at the State Department missed some information. It’s unclear what scenario led to the State Department revoking Siavash Sobhani’s U.S. citizenship 60 years after the passport was first issued, but it suggests that the State Department’s messy interpretation and application of the Citizenship Clause is to blame.

Again, this convoluted issue could be resolved by the State Department applying the 14th Amendment more appropriately and limiting the issuance of U.S. passports only to children with a parent who is either a U.S. citizen or a permanent resident.

Children Born to Foreign Diplomats Are Obtaining U.S. Citizenship Anyhow. Everyone agrees that the 14th Amendment’s Citizenship Clause is not universal and that some people born in the United States are not to be considered U.S. citizens at birth. Without this limitation, the 14th Amendment would not be functioning and part of the U.S. Constitution would be rendered meaningless. It turns out, however, that even those children deemed by the State Department to not be U.S. citizens at birth are nonetheless considered to have obtained legal permanent residency upon birth, putting them on a pathway to U.S. citizenship. In fact, according to the Washington Post, in its letter to Sobhani, the State Department “directed Sobhani to a website where he could apply for lawful permanent residence”.

A federal regulation — issued in 1982 without public notice and comment — allows children born on U.S. soil to foreign diplomats on the Blue List to officially register as lawful permanent residents (LPRs). The child’s parent can fill out a form on behalf of the child titled, “Request for Waiver of Certain Rights, Privileges, Exemptions, and Immunities”, which, as the title indicates, has the effect of removing the child’s diplomatic benefits. Since a child is unlikely to run afoul of the law, and since the parent is unlikely to hold the diplomatic position indefinitely anyhow, waiving a child’s immunities from criminal prosecution by filling out this form is likely not considered too significant for those seeking the benefits of permanent U.S. residency for their children. The Immigration and Naturalization Service (INS) took the position that the agency had considered these children to be LPRs on account of an unpublished district court ruling out of New York in 1965 and that this regulation was simply the creation of process for how to handle these children.

What’s notable in this regulatory creation is that, unlike in most instances where an applicant for permanent residency must maintain residency in the United States with exceptions for temporary, limited breaks, the child of a diplomat who has applied for legal permanent residency can leave the United States for extended periods and not upset their application, as long as the parent maintains the Blue List status. As explained by U.S. Citizenship and Immigration Services (UCSCIS), “extended absences from the United States do not break continuous residence if the diplomatic parent remained accredited to the United States during the applicant’s absence. For example, many children of diplomats attend school in their parents’ home country while the parents are on diplomatic assignment. An absence for this purpose, even if it extended for a year or longer, would not be considered a break in the applicant’s continuous residence.” USCIS goes on to explain that the child’s “Readmission to the United States as an A or G nonimmigrant at the end of an absence does not break an applicant’s continuous residence.” The A or G nonimmigrant status is a reference to diplomatic visas. USCIS continues, “Departure of the applicant’s diplomatic parent does not break the applicant’s residence if the applicant remains in the United States.”

In other words, the child of a foreign diplomat on the Blue List is a legal permanent resident even if living overseas for an extended period (as long as the parent remains in the United States as a foreign government representative), and the related paperwork isn’t affected if the parent leaves the United States (as long as the applicant child remains here). It’s quite a nice setup for children of foreign diplomats. They can be raised overseas, spend most of their lives overseas, go to school overseas, and still be considered a legal permanent resident of the United States. When the child reaches age 18, he can naturalize to become a U.S. citizen.

There’s no evidence Congress contemplated any of this when writing the 14th Amendment. But through bureaucratic, administrative policymaking, an unpublished court ruling, and a couple of INS commissioner decisions involving children of Chinese diplomats in 1965 and 1972, everyone born on U.S. soil is now treated by the executive branch as a legal permanent resident at birth, and all can eventually obtain U.S. citizenship. Congress may not be aware of these decisions, and certainly didn’t play any role in them, but is entitled to direct executive branch agencies to act in accordance with its intent on how the Citizenship Clause should operate.

Sobhani Brother Wants Immigration Laws Enforced. Like all individualized cases, Siavash Sobhani’s case is symbolic of a larger political issue and discussions about how to address problems are generally focused on the future rather than focused on immediate cases. Trying to predict what would have happened if Sobhani and his brother were not given U.S. citizenship in the first place is impossible, of course; they may have had difficult lives, they may have been successful in Iran and could have worked to improve the country as important members of society, or they may have come here anyhow as asylees. In fact, Sobhani’s older brother, Rob Sobhani, is now a wealthy businessman with a Ph.D. who has written a book making the case for limiting immigration to the United States as a means to improve other countries — e.g., stopping so-called brain drain (“The problems that plague Iran and other nations cannot be solved by a diaspora of the best and brightest citizens,” he writes). Rob Sobhani wants more immigration enforcement, an immigration moratorium, and a reevaluation of family-based immigration policies “through which millions of people are added to the rolls every decade, regardless of their ability to contribute to the prosperity of the nation,” wants to make English the official language of the United States, and supports “promoting economic sustainability and political progress in neighboring nations, giving potential immigrants motivation to stay and work within their own systems.” The 2012 book is titled, Press 2 for English: Fix Immigration, Save America. His synopsis on Amazon.com reads, in part:

Unmanaged immigration, legal and illegal, is having a disastrous effect on state and local economies, jeopardizing jobs for low-income citizens, creating a population increase that puts pressure on our shaky infrastructure and overburdened environment, and worst of all, is fracturing our national identity and spirit.

On open borders, Rob Sobhani puts it into the context of Iranian immigration:

We’re not helping Iran, we’re hurting Iran. The Iranians deserve to build their country and have their country blossom given the talent and the creativity that they have. But if we open up the borders and allow their best and brightest to come to America, we’ve relegated Iran to a third-world status.

The Sobhani brothers seem to be successful members of American society, and Rob Sobhani’s views on immigration are similar to the views of many of my colleagues. (Note to Rob Sobhani: If you want to make a tax-deducible donation, we’d welcome it here!) But the policies and practices that allowed the messy situation to unfold needs to be addressed by Congress so that the executive branch does not continue to allow the 14th Amendment to be inappropriately applied.

Final Thoughts. The Washington Post incorrectly describes Siavash Sobhani as “stateless”, though he presumably is recognized by Iran as an Iranian citizen. The news outlet doesn’t seem to have reached out to the Iranian government or asked whether Siavash Sobhani has had any conversations with Iranian officials. Central to the discussion is the fact that Siavash Sobhani’s father was employed by the Iranian government, so presumably they have some records. If anything, Siavash Sobhani’s case would arguably be a legitimate case for parole (unlike the countless, lawless grants issued by the Biden administration to virtually anyone who enters the United States unlawfully), or a case for a legitimate, private claims where Congress writes a bill providing protections for a specific constituent.

If there were some congressional language or even a “sense of Congress” resolution that supported the notion of different visa categories allowing for U.S. citizenship at birth, that would be one thing. The State Department has been allowed to create its own interpretation of the Citizenship Clause, creating perverse results — such as this case — and Congress has sat back quietly, apparently unaware of what’s been taking place. This article should be a wake-up call for Congress to get America’s citizenship process back in check.

Congress never directed the State Department to hand out citizenship to birth tourists giving birth in airplanes that happen to be above U.S. airspace. Congress never directed the State Department to give U.S. passports to children born to foreign students, temporary workers, embassy staff, and so on.

How many other non-U.S. citizens born to foreign diplomats are living in the United States with erroneously issued U.S. passports? How many of them have been voting or taking advantage of benefits reserved for U.S. citizens? Whatever the number, it is all the result of the State Department’s misinterpretation of the 14th Amendment and the messy bureaucratic processes they’ve put in place to carry out their misinterpretation.

How many foreign embassies are giving their citizens a short stint in the United States as a White List embassy employee in order to get their children U.S. citizenship? How many embassy employees have notified the State Department of births? How many embassy employees have sought U.S. passports for their children, and how many has the State Department issued? Congress should ask for all of this data, broken down by year and embassy to see if there are any trends. Ultimately, Congress could outlaw the practice altogether and clarify who is to be considered a U.S. citizen at birth, and who is not.