Published December 23, 2015
EXCLUSIVE: The Founding Fathers and drafters of the 14th Amendment to the Constitution may just turn over in their graves if they read a new report by the Center for Immigration Studies that says foreign diplomats are obtaining U.S. birth certificates and Social Security numbers for their newborn children – effectively becoming U.S. citizens. On top of their new status in the world, these children carry an additional perk that most Americans do not have – diplomatic immunity.
Just like their parents, most are immune to criminal jurisdiction of the United States, creating what CIS describes as a “super citizen.” “Children of diplomats who receive U.S. birth certificates and SSNs have greater rights and protections than the average U.S. citizen,” says Jon Feere, the author of the report called “Birthright Citizenship for Children of Foreign Diplomats?”
A State Department spokesman told FoxNews.com that under the law, children of foreign diplomats are entitled to these records. “Persons born in the United States, including a child of foreign diplomats, are legally entitled to an official birth record issued by the Bureau of Vital Statistics of the state in which the child is born.” The spokesman added, “whether a child born in the United States to a foreign diplomat acquires U.S. citizenship at birth pursuant to the 14th Amendment requires a fact-based analysis."
"If the child enjoys full diplomatic privileges and immunities, the child would not acquire U.S. citizenship at birth.” However, the CIS report highlights how easily a foreign diplomat’s child can indeed go from U.S. guest – to U.S. citizen.
How Could This Happen?
Most states have adopted the same birth certificate request form established by the National Center for Health Statistics’ Division of Vital Statistics. Hospitals present this form to parents requesting a birth certificate. A foreign diplomat or his wife, who has just delivered a child at a U.S. hospital, would get this same form. On the form, there is a section that asks for each parents’ Social Security number, but parents can skip that detail if they do not have one or have forgotten it, according to the National Center for Health Statistics.
Foreign diplomats would not have that nine-digit number, so they would more than likely leave it blank. Also included, a slot asking if parents would like a Social Security number for their child. It’s a simple “yes” or “no” answer.
Nowhere on this form does it ask a person to check “no” if they are a foreign diplomat. According to the CIS report, “state agencies do not instruct hospitals to differentiate between children born to foreign diplomatic staff and those born to U.S. citizens or temporary or illegal aliens. Birth certificates are issued to all persons born on U.S. soil and requests for SSNs are generally forwarded to the Social Security Administration without being second-guessed.”
The CIS report goes on to say, “the Social Security Administration does not investigate whether SSN requests are for children of foreign diplomats. Although the agency does recognize that U.S.-born children of foreign diplomats are not eligible to receive SSNs, there is no mechanism in place for preventing such issuance.”
Immigration attorney Toni Maschler says while it is possible this is happening, it is probably rare.
“It would be proper for them to apply for a green card, but in most cases that child doesn’t stay here long enough to be eligible to naturalize as a U.S. citizen because their parents would more than likely transfer to a different post,” says Maschler. Palma Yanni, immigration attorney and former president of the American Immigration Lawyers Association, echoes Maschler’s statement and questions if these children would even ever consider becoming an American. “This is a tiny number and involves high-level diplomats who usually return to their country. This group would strongly identify with their nationality,” says Yanni.
Is it an Easy Fix?
With so many agencies involved in the road to citizenship – five mentioned in the CIS report – which would be best tasked to solve this potential problem?
Feere points to Congress. “I think Congress is the entity that needs to step up and provide guidance to the top agencies, which are the National Center for Health Statistics and the Social Security Administration,” says Feere.
Feere has a quick-fix recommendation: “requiring foreign diplomats to note their profession on birth certificate forms under penalty of law should be considered. This would necessarily require state vital statistics offices to forward information on parental occupations to the Social Security Administration so that a determination on citizenship can be made by federal authorities.”
In the past, the National Center for Health Statistics has talked about adding a section for parental occupation but says “it was a financial decision in the 2003 birth certificate revision to not include it because states didn’t have the money to code the information.”
Some may be quick to characterize what is happening as a type of loophole, but Feere says, “it’s a matter of law, and despite Congress’ clear intent to not create a completely universal and automatic birthright citizenship policy, the current application of the Citizenship Clause is so lax that the United States has a de facto universal birthright citizenship policy that denies U.S. citizenship by birth to no one, including children born to foreign diplomats.”
The 14th Amendment’s Citizenship Clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
As the report points out, there is heated debate over who is entitled to claim citizenship, in particular illegal aliens or temporary visitors, but Feere adds, “there is one thing that everyone engaged in the debate agrees on: children born to foreign diplomats are not “subject to the jurisdiction” of the United States and are not to be granted U.S. citizenship.”