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    IMMIGRATION                                                               MAY 29, 2026     |  The Indian Eye 39

                One widely reported case shows how   diplomatic officer at the time of birth, and   them inadmissible for misrepresentation   dren born in the U.S. if Trump’s executive
            disruptive this can be. A U.S.-born physi-  concludes that citizenship was never law-  or a false claim to U.S. citizenship.  order was implemented. That kind of pol-
            cian in his early sixties, who had lived in   fully acquired. The renewal is denied, and   Once a person in this situation be-  icy could have perverse and far-reaching
            the United States his entire life, practiced   the individual receives a written determi-  comes a permanent resident under the   consequences. Children born in the Unit-
            internal medicine in Northern Virginia   nation that they are not a U.S. citizen.  DS1 framework authorized by 8 CFR   ed States to undocumented parents could
            for more than three decades, and paid   From the applicant’s perspective,   101.3 and 8 CFR 264.2, they are deemed   be left without any lawful status. Because
            taxes for years, applied in 2023 to renew   it feels as if their citizenship is being an-  to have been permanent residents as of   some countries do not automatically con-
            his U.S. passport. Instead of a routine   nulled. But the government’s legal po-  their date of birth. For many such individ-  fer citizenship to children born abroad
            renewal, the State Department informed   sition is that, because the parents were   uals, that means they can apply for citizen-  based solely on their parents’ status, some
            him that his citizenship had been a “mis-  qualifying foreign diplomats, the person   ship as soon as their permanent residence   children in this situation could even be
            take.” Officials determined that his father   was never a citizen at birth. Earlier pass-  is registered and any separate naturaliza-  born stateless. The U.S.-born children of
            had been an accredited Iranian diplomat   ports and other documents were issued   tion-specific requirements are satisfied.  parents who hold a valid nonimmigrant
            at the time of his birth. Because of his   in error because agencies did not have or   Children born in the United States   status, such as H-1B or H-4, would also be
            father’s diplomatic immunity, they con-  did not consider the parents’ diplomatic   to accredited foreign diplomats occupy   impacted. A person must either be admit-
            cluded that he was not “subject to the   status. When the State Department now   a unique and often precarious place in   ted into the U.S. in H-4 status or change
            jurisdiction” of the United States at birth   refuses renewal, it is, in effect, correcting   U.S. law. They are not citizens at birth   into H-4 from another nonimmigrant sta-
            and had never lawfully acquired citizen-  that underlying mistake.  because their parents were not “subject   tus, so it is unclear how a newborn child
            ship. In a single letter, he went from being   At that point, these individuals are   to the jurisdiction” of the United States.   could acquire a nonimmigrant status from
            a long-time U.S. citizen in the eyes of his   no longer simply applying to obtain or   In practice, they are frequently  treated   birth. Parents might be forced to scramble
            community to being treated as a non-cit-  renew a passport. They must rebuild their   as citizens for years because they receive   and file immigration applications imme-
            izen and essentially stateless. He could   immigration status through the diplomat-  standard  birth  certificates  and,  in  some   diately following a child’s birth to ensure
            not travel, faced uncertainty about his   ic-birth lawful permanent resident frame-  cases, passports and other documents.   that they are not out of status. Because
            medical license and ongoing employment,   work. In practice, this usually requires fil-  Under 8 CFR 101.3 and 8 CFR 264.2,   birth in the United States would no longer
            and had to retain legal counsel and begin   ing Form I-485 under 8 CFR 264.2, with a   however, they have a special, voluntary   be  sufficient  to  confer  citizenship,  even
            the process of applying for lawful perma-  thorough evidentiary record documenting   path to lawful permanent residence that is   U.S. citizen parents might be forced to
            nent residence under the diplomatic-birth   their  U.S.  birth,  continuous  residence,   backdated to birth, and once registered as   provide exhaustive proof of legal status to
            framework rather than simply renewing a   complete travel history, and their parents’   LPRs, they can pursue naturalization un-  ensure that citizenship was also extended
            passport. His case underscored that what   status on the State Department’s Blue   der the ordinary rules. When these issues   to their children. These scenarios are an-
            the government characterizes as a correc-  List, together with Forms I-566 and I-508.   are  recognized  and  handled  proactively,   alyzed in greater detail in a prior blog. If
            tion under 8 CFR 101.3 can, in practical   Form I-485 itself poses a series of detailed,   the legal framework allows children of   Trump’s executive order ever takes effect,
            terms, overturn a person’s life.  high-stakes questions, including whether   diplomats to move from a misunderstood   although we fervently wish it will never
                USCIS and the State Department’s   the applicant has ever worked in the Unit-  status to permanent residence from birth   happen, children born of parents in any
            position in such cases is not that citizen-  ed States without authorization, whether   and ultimately to secure U.S. citizenship.   status should be recognized as permanent
            ship is being revoked in the denaturaliza-  they have ever falsely claimed to be a U.S.   When they are discovered late, as in some   residents just like children who are born to
            tion sense, but that citizenship never at-  citizen in any context, and whether they   cases,  the  disruption  can  be  significant.   foreign diplomats.
            tached under the Constitution and 8 CFR   have ever voted in violation of federal,   For anyone born in the United States to   The hope is that the Supreme Court,
            101.3 because the parents’ Blue List diplo-  state, or local law. For someone who has   parents who served here as diplomats, it is   in Trump v. Barbara, will reaffirm the set-
            matic status placed the child outside U.S.   genuinely believed for decades that they   essential to understand the parents’ exact   tled understanding of birthright citizen-
            jurisdiction at birth. The proper remedy,   were a U.S. citizen, and who has lived,   Blue List and immunity status at the time   ship under the Fourteenth Amendment:
            in their view, is not a citizenship adjudica-  worked, voted, and paid taxes on that un-  of birth, to document residence and travel   that, with the narrow and historically
            tion, but registration as a permanent resi-  derstanding, answering these questions   history, and to pursue the most appropri-  recognized  exception  for  children  born
            dent through 8 CFR 264.2 and, if desired,   can be especially daunting. Their respons-  ate and legally sound path.  to accredited foreign diplomats, children
            later naturalization.             es must be crafted with great care and   Our blog has nothing to do with the   born on U.S. soil are citizens at birth. For
                There is anecdotal evidence of this   supported by a clear legal and factual ex-  Trump  administration’s  executive  order   those born in the United States to foreign
            pattern.  In one scenario,  a person is born   planation so that USCIS understands this   denying birthright citizenship to children   diplomats who later discover that they did
            in the United States while both parents   history as the product of a long-standing,   born to parents who are either not in the   not  acquire  citizenship  at  birth,  existing
            are serving here as foreign diplomats,   government-reinforced misunderstand-  U.S. lawfully or who are in the U.S. tem-  law already provides a clear and workable
            often at a UN mission or embassy. They   ing of status, not as deliberate fraud or   porarily. It has always been acknowledged   remedy: they can register permanent res-
            grow up entirely in the United States, hold   willful misrepresentation. Fortunately, in   that children born in the U.S. to diplomats   idence as of their date of birth and then
            a state birth certificate and a Social Securi-  this  diplomatic-birth  registration  setting,   who enjoy immunity are not subject to   pursue naturalization under the ordinary
            ty number, and have always assumed they   USCIS does not apply the usual inadmis-  the jurisdiction of the United States and   rules. Any effort to narrow birthright citi-
            are U.S. citizens. They never applied for   sibility grounds the way it does in ordinary   do not acquire citizenship at the time of   zenship beyond this limited diplomatic ex-
            a U.S. passport as a child or young adult.   adjustment cases. When someone is being   their birth in the U.S. Such persons can   ception would raise serious constitutional
            Only when they apply for a first passport   formally recognized as a permanent resi-  still register as permanent residents and   concerns under the Fourteenth Amend-
            in adulthood does the State Department   dent from birth, their prior good-faith use   are able to become U.S. citizens through   ment.
            review their parents’ records, discover   of U.S. documents or belief that they were   naturalization. They are in a much better   * Damira Zhanatova is an Associate at
            that one or both were Blue List diplomats   a citizen is not treated as a basis to find   position than what might happen to chil-  Cyrus D. Mehta & Partners PLLC.
            with full immunity at the time of birth,   ________________________________________________________________________________________________________________________________________________________________________________________________
            and  deny  the  passport  with  an  explana-  Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
            tion that the applicant is not a U.S. citi-  & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
            zen. In another scenario, a person in the   mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
            same position receives a U.S. passport as a   Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
            child and may have that passport renewed   of Volunteers for Legal Services and board member of New York Immigration Coalition.  Mr. Mehta is the former chair of the
            multiple  times.  Agencies  never  examine   Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
            the parents’ diplomatic history. The per-  Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
            son lives in the United States, works, pays   on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
            taxes,  votes,  and  even  serves  on  juries,   Work.  Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
            believing in complete good faith that they   and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
            are a citizen. Then, at some later renewal,   immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016.  Mr. Mehta is ranked among
            the State Department undertakes a more
            thorough review, confirms that a parent   the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
            was on the Blue List as a fully immune   in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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