A Person Born in the United States is a U.S. Citizen, Right?

Not Always. But Did a Human Being Actually Review the Merits of This Heartless Decision Before Telling a 61-Year-Old Born in the U.S. that He Was Never Entitled to U.S. Citizenship in the First Place?

Many years ago, a prospective client came to me when his application to renew his U.S. passport was denied. The reason? According to the U.S. Department of State, he wasn’t actually a U.S. citizen, and therefore was not entitled to a U.S. passport.

The young man – I think he was in his late 20s when I met him – had been born in the United States.  He had been issued a U.S. birth certificate as well as a passport soon after his birth. He had also renewed his passport multiple times over the years with no problem. This time, however, he was told (though not in so many words), “Sorry, but we made a mistake. In fact, you’re stateless.” He was also advised to apply for permanent residence.

Does this sound unlikely? Don’t we have birthright citizenship in the United States? The truth is that this is not a rare occurrence. I was reminded of this when I read an article in The Washington Post yesterday: “A doctor tried to renew his passport. Now he’s no longer a citizen.”

Dr. Siavash Sobhani, a resident of Virginia who was born in Washington, D.C. in November of 1961, has now been told that he was granted citizenship by mistake. The letter he received from the State Department informed him that because his father was employed by the Embassy of Iran when he was born, he should not have been granted citizenship at the time of his birth.

The U.S. Has Birthright Citizenship … With Exceptions

The 14^th amendment, from which the concept of birthright citizenship derives, provides that “[a]ll 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.”

And there’s the rub. The State Department’s letter to Dr. Sobhani reportedly stated:

“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.”

According to the article, Sobhani has already applied for permanent residence, as advised by the State Department in its letter – and has already incurred more than $40,000 in legal fees. Meanwhile, his entire world has been turned upside down. Since he did not acquire Iranian citizenship at birth, he is currently stateless.

And he has other questions. Is his license to practice medicine valid?  Will he be able to attend his son’s destination wedding abroad? What about his and his wife’s plans to spend the next year exploring different foreign countries in search of a retirement community? Will he have to cancel plans to visit his seriously ill father-in-law in Lebanon? More ominously, is there a chance that he could be deported to Iran, where he believes his life would be in danger because he has spoken out against the Iranian government?

Note to Dr. Sobhani’s Lawyer: This is Worth Fighting

In the case of my client, we did not accept the State Department’s conclusion without a fight. It turns out that not all diplomats in the United States are granted full diplomatic immunity. Diplomats accredited to the United States and having full diplomatic immunity are listed on the Department of State’s Diplomatic List (also known as the “Blue List”).  

But some diplomats are granted lesser degrees of immunity, and are listed on the so-called “White List.” According to the article about Sobhani, his father only worked temporarily at the Iranian Embassy, in October and November of 1961. If the father was not on the Blue List at the time of Sobhani’s birth, then there is an argument to be made that Sobhani is, in fact, a U.S. citizen. (See also 8 CFR § 101.3.)

Sobhani’s father is dead, and his mother has dementia, so he cannot obtain any further information by asking his parents. But surely the burden should be on the State Department to demonstrate – before they strip him of his U.S. citizenship and leave him stateless – that Sobhani’s father was, in fact, on the Blue List at the time of his son’s birth.

In my client’s case, we also presented voluminous documentation that showed the life he had led in the United States: nursery school class pictures, report cards from elementary school, pictures from sports teams he played on in middle school and high school, pictures of family holidays and trips around the United States over the years, evidence of his study abroad during his junior year of college (when he used, of course, his U.S. passport to get a foreign visa), confirmation of his post-graduate employment (not requiring a work visa, of course, since he had documentation of his U.S. citizenship).

Together, this all painted a picture of what lawyers call the “equities” of the case, i.e., an argument for why stripping this person of his U.S. citizenship – a person who had believed his entire life that he was a U.S. citizen, and built his life and his career on that basis – would just be wrong.

Sobhani may or may not be able to amass the same degree of documentary evidence my client did. (My client’s mother had saved every report card, certificate and graduation picture, which definitely helped). But if Sobhani does, indeed, have no other option than to acquire lawful permanent residence after a lifetime of believing he was a U.S. citizen, then U.S. Citizenship and Immigration Services (USCIS) should exercise its discretion to expedite consideration of his case and grant him permanent residence immediately, and then expedite approval of a subsequent application for naturalization.

This is the least the government can do to remedy its own heartless mistake.