Page 39 - The Indian EYE 052926

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.

www.TheIndianEYE.com