does a foreign diplomat's baby have US citizenship?(conceived & born in NYC)

[WBH]

my question was: can they apply for any US immigration benefits up to USC under the current law ?

Yes. You can look at statistics of natualization by country of birth. America is listed. There was a post before here about those statiscs.
Speculations give three possibilities about those US born naturalized citizens
(1) children of diplomats born in USA
(2) People who are born as US nationals but not US citizens in American Samoa and Swains Islands
(3) Natual born US citizen who renounced US citizenship and later immigrated back into USA

For (1) and (2), they need to immigrate to USA first. Therer is immigration quota by country. I don't know how quota is allocated to
USA.





(2)

 

[Al Southner]

The answer to your question is: NO NO NO. Only US citizens can apply for US citizenship certificate. Furthermore, once you have US certificate, you are required to have a US passport or how else do you plan to travel abroad and return to the US? You can't get a US passport without being a US citizen. The children are issued SSN like any other person couple of weeks after being born, they don't wait till they are adults. Once they are adults, they will need to get a greencard, wait to file under 3 or 5 years depending on how they got their GC. So, there's no shortcut to the process because they were born in the US, the same process that you and me are undergoing, they are subject to it.

 

[DreamUSA]

The answer to your question is: NO NO NO. Only US citizens can apply for US citizenship certificate. Furthermore, once you have US certificate, you are required to have a US passport or how else do you plan to travel abroad and return to the US? You can't get a US passport without being a US citizen. The children are issued SSN like any other person couple of weeks after being born, they don't wait till they are adults. Once they are adults, they will need to get a greencard, wait to file under 3 or 5 years depending on how they got their GC. So, there's no shortcut to the process because they were born in the US, the same process that you and me are undergoing, they are subject to it.

Al Al Southner...I think we have established that they are not USC and let us say they can not apply for USC directly...what about the other immigration benefits: reside in US ?

 

[Jackolantern]

Folks, we are still not answering the question. What is the legal status- immigration status of childs who was born to diplomat parent.

They will get a derivative status based on their parents' status. Most likely some kind of A or G status.

 

[Jackolantern]

Al Al Southner...I think we have established that they are not USC and let us say they can not apply for USC directly...what about the other immigration benefits: reside in US ?

They can apply for a green card, but they have to qualify for it based on family or employment or some other criteria, just like anybody else. Before obtaining a green card they have to file papers to give up their diplomatic immunity, if they still have such status when applying for the GC. Then upon holding a green card for the required number of years they can apply for citizenship.

 

[Jackolantern]

We know this law. What we wonder is how this law is enforced. That is birth certificates doe snot tell parents are diplomats or not
so when such children grow up and use there birth certificate to apply for US passport. How would Depart of State know these
applicants were born to foreign diplomats.

The diplomats will notify the Department of State soon after the baby is born. Unless they are committing deliberate fraud and are able to hide the pregnancy and birth. Which is not an easy thing, considering the various social functions and ceremonies the diplomat and his/her spouse have to attend.

 

[DreamUSA]

They can apply for a green card, but they have to qualify for it based on family or employment or some other criteria, just like anybody else. Before obtaining a green card they have to file papers to give up their diplomatic immunity, if they still have such status when applying for the GC. Then upon holding a green card for the required number of years they can apply for citizenship.

I think US born child (even without US citizenship) when she/he is an adult have more rights than any other foreigner. When childs reaches 18, he/she is no longer child ....and let assume parents went back to home country (no more diplomatic status). Child has no direct ties to parents, as he/she is no longer child. May be, this area is not researched area and could be a gray area in the law....

 

[Jackolantern]

I think US born child (even without US citizenship) when she/he is an adult have more rights than any other foreigner. When childs reaches 18, he/she is no longer child ....and let assume parents went back to home country (no more diplomatic status). Child has no direct ties to parents, as he/she is no longer child. May be, this area is not researched area and could be a gray area in the law....

If that child stayed in the US after his/her parents left, or he/she grew too old to keep diplomatic status based on having diplomatic parents, he/she would be in the US illegally and subject to possible deportation unless some other status like F-1 was obtained. There is no reason for them to have any more rights than any other foreigner.

 

[WBH]

On I-485 there is a question "Have you ever exercies diplomatic immunity to avoid charges for a criminal offense in USA?". I wonder why it is not asked on N400.

This is one of two crminal history question on I485 but not on N400. The other is "Have you ever been a beneficiary of a pardon"

 

[WBH]

If that child stayed in the US after his/her parents left, or he/she grew too old to keep diplomatic status based on having diplomatic parents, he/she would be in the US illegally and subject to possible deportation unless some other status like F-1 was obtained. There is no reason for them to have any more rights than any other foreigner.

What if a non-diplomatic foreign couple have their baby born in USA so the baby is a US citizen then the couple become diplomats? Can they claim diplomatic immunity priviledge for their child but still let the child maintain US citizenship?

I think law may not have everything covered.

 

[Huracan]

WBH, you truly are an infinite source of questions that might apply to just one individual on the whole world

 

[Jackolantern]

What if a non-diplomatic foreign couple have their baby born in USA so the baby is a US citizen then the couple become diplomats? Can they claim diplomatic immunity priviledge for their child but still let the child maintain US citizenship?

Once born a US citizen, the child remains a US citizen and cannot invoke diplomatic immunity to avoid being prosecuted in the US.

 

[Jackolantern]

On I-485 there is a question "Have you ever exercies diplomatic immunity to avoid charges for a criminal offense in USA?". I wonder why it is not asked on N400.

It is not necessary on the N-400. Permanent residents cannot get diplomatic immunity in the US. So they automatically know you have not exercised that immunity since obtaining your GC.

In the case of military N-400 applicants who never had a GC, I suppose the military would have already taken care of the diplomatic immunity issue before allowing the person to enlist.

 

[WBH]

It is not necessary on the N-400. Permanent residents cannot get diplomatic immunity in the US. So they automatically know you have not exercised that immunity since obtaining your GC.

In the case of military N-400 applicants who never had a GC, I suppose the military would have already taken care of the diplomatic immunity issue before allowing the person to enlist.

But they ask questions like "Have you EVER..?" not "Have you since getting the PR...".

ANd it does not explain why that pardon question is on I485but not on N400. A PR can get a pardon from president or governor

 

[Jackolantern]

But they ask questions like "Have you EVER..?" not "Have you since getting the PR...".

Still doesn't matter. If they invoked diplomatic immunity to escape prosecution before becoming a PR, that issue would have already been resolved to USCIS' satisfaction by the time they granted the green card.

Of course, it is possible that the applicant concealed the immunity incident when applying for the GC. But if the interviewer suspects there was fraud in the GC process, they are free to look at the old files and ask additional questions to investigate it. It would be a waste of time and paper to duplicate every I-485 question on the N-400, especially for things like this which can only occur pre-GC.

ANd it does not explain why that pardon question is on I485but not on N400. A PR can get a pardon from president or governor

Maybe there are laws or court rulings that say a pardoned offense can be grounds for denying a green card but not grounds for denying citizenship.

 

[WBH]

Maybe there are laws or court rulings that say a pardoned offense can be grounds for denying a green card but not grounds for denying citizenship.

It is asked in a way ity seems a pardon crime is OK for GC but not for N400. Otherwise why does USCIS ask it on I485? The applicants has to dislcose teh crime anyway under another question "Have you ever...?". So if the applicants say the offense was pardonedmaybe USCIS will not deny the GC. But for N400 they don't ask for it because it does not bring any benefit to the applicants.

A bottomline is a pardon can only do applicants good but never harm. So if there is no immigration relief from a pardon, it is meaningless for USCIS to ask --UNLESS
they are afraid someone does not disclose a crime or offense with a good excuse the crime or offense is pardoned. But the form already says "expunged,sealed record
must be disclsoed". If USCIS care they should add pardon to that instruction rather than raise an additional question about pardon.

Of course, what we talk about is a conviction being pardoned. I think the president can give an order to pardon a crime which has not led to arrest yet. But still that issue should be taken care of by
the questrion "Have you ever commited a crime for which you were not arrested"

 

[DC_United]

I am sorry if I am reviving an old thread, but I couldn't help it seeing how wrong some information is in here.

There are currently NO LAWS that prevent children of diplomats from getting US Passports. There are currently NO LAWS that prevent children of diplomats from being US citizens at birth, what there is, is a principle or dicta that was inherited from the British common law hundred of years ago. Even that law, according to the British folks is not decisive on the subject of the King's ambassadors...

The DoS does try to prevent these children from obtaining a US passport because of the Slaughterhouse and Wong Kim Ark case laws around the 14th Amendment. Both Supreme Court cases are not discussing Diplomats directly thus are not binding but that's the latest definition we have on who is subject or not to the jurisdiction.

Why wouldn't the USA give these children who wants to stay here US Citizenship? Are they any less equal than illegal parents' children or children of El Chapo Guzman (drug lord) can be citizens....And let's pretend they don't get citizenship at birth, they can sign-up for a GC (Although form I-508 is unlawful), and 3 years later become US Citizens by naturalization...A naturalized citizen with a birth certificate...go figure!

The matter has never been really tested, because the 14th Amendment DOES NOT EXPRESSIVELY denies them citizenship.

You have to understand folks, birth is not a function of an official act that require immunity and in the past, like in the history before the Reconstruction period, and slightly after, these kids were born either in the Embassy or in the invisible residence. Thus it wasn't only the fact that daddy or mommy was a diplomat, it was a question whether that kids is born on US soil to begin with. People jump on the "subject to the jurisdiction" as the first test to citizenship, where they forgot that you need to see if that birth is actually in the US! (An embassy is not a territory of the sending state, but is also not a piece of US land technically speaking).

DoS does cross check the residence of the diplomat address in their records with the Birth Certif mother's address, then they check names and date of births of parents.
But there are NO LAWS, just interpretations or dictas....

 

[DC_United]

and I wish I can find a lawyer who can argue this on my behalf, because I am one of those kids, who lived here more than anywhere else, even more than my parents home country (a nationality that I renounced), yet with all agencies considering me a citizen, with all my friends and family considering one of them, the only agency refusing to see me as a Citizen is the DoS....I am basically stateless because of incorrect interpretation of a 150 years old case.

 

[newacct]

Why wouldn't the USA give these children who wants to stay here US Citizenship? Are they any less equal than illegal parents' children or children of El Chapo Guzman (drug lord) can be citizens....

They are different because the children of illegal immigrants don't have diplomatic immunity. The children of El Chapo don't have diplomatic immunity. US laws can be enforced on them like with other Americans. The children of diplomats that have full diplomatic immunity also have diplomatic immunity. US laws cannot be enforced on them. That's why they are different.

And let's pretend they don't get citizenship at birth, they can sign-up for a GC

They can. But how many diplomats would sign their children up for GC? Plus, when the diplomat's family moves back to their home country at the end of the assignment, the GC will be abandoned.

and 3 years later become US Citizens by naturalization

Nope. Someone under 18 cannot naturalize except through having a parent who is a citizen.

 

[DC_United]

True for the naturalization point I missed that fact for non US parents. I stand corrected. Nevertheless, not only being a GC is unlawful per the Vienna Convention since form i-508 is invalid, but for the sake of arguments they can be Citizens after 18 years via naturalization, while holding a birth certificate.

As to the first point, they [illegals/temporary visitors] are not different what so ever. We parted from the feudal system of having the status of the parent being slapped on the kids. We fought a war in 1812 just for that! To depart from the permanent allegiance of the King and the parents. How are you born free if you are still dependent on someone?

Immunity from suit is not a bar to jurisdiction. This is the language of the Foreign Sovereignty Immunity Act, where it says clearly that immunity is for public acts and non-personal acts. The Vienna Convention created the link to FSIA via Article 3)a, where it says a diplomat is a representative of a foreign state.

The Vienna Convention also clearly says that immunity extends to the household members of a diplomat, unless they are nationals of the receiving state. Last time I check, the constitution applies to a person before a treaty does. Thus, a diplomat child is a citizen first, and immune second. But since US citizen cannot claim immunity, that clause applies perfectly.

There is so much more. The oldest case on the book is the Calvin case. This the case that The Exchange, Wong Kim Ark and others rely on, and that case says clearly that the situation of children of diplomat is still to be tested in virtue of the common law.