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This question seems hard to google, since all the results are about people born in US embassies on foreign soil.

I'm wondering about the situation where someone's born in, say, the French embassy in Washington, DC.

I know there are limits to the extraterritoriality of embassies, but I don't know if this is one of them.

  • What people do you have in mind? Someone who goes into labour walking by outside? Locally-hired staff? – DJohnM Jun 30 '18 at 23:29
  • Some of the same underlying statutes apply, as in this question. – Pat W. Jul 1 '18 at 0:45
  • Embassies aren't generally extraterritorial. They're inviolable. This is an example of why that distinction is significant. If the child is the ambassador's child, however, it doesn't matter where the birth takes place, the child will not be a US citizen unless the other parent is a US citizen. – phoog Jul 1 '18 at 4:24
  • What did you find about people born in US embassies, by the way? – phoog Jul 1 '18 at 17:54
  • @phoog Sorry, didn't know whether "extraterritorial" was the right term. I know they're not actually territory of the foreign country. As for people born in US embassies, I didn't look into it since I was wondering about the reverse. But I'd assume the answer is no, it doesn't give you US citizenship, especially based on bdb484's answer. – Nick S Jul 2 '18 at 4:43
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Immigration and naturalization is pretty far out of my comfort zone, but I'm confident that the answer is yes.

Although people often believe that a foreign embassy is considered the territory of that country, I don't know of any law that supports that belief. Instead, through the Vienna Convention, the embassy grounds remain the territory of the host state but are provided a variety of protections and immunities because of their diplomatic status. With the embassy on U.S. soil, the child would therefore satisfy the "born ... in the United States" prong of the 14th Amendment's Citizenship Clause.*

But that would not be the end of the analysis, as birthright citizenship also requires not just that the child is born in the United States, but also that the child be "subject to the jurisdiction thereof."

So if the child were born to an American citizen who had entered the Indian embassy to get a travel visa, the child would be both born in the United States and subject to its jurisdiction, making it eligible for birthright citizenship. But if the child were born to Indian ambassador or to diplomatic staff, who would generally be able to claim diplomatic immunity, that child would not be subject to the jurisdiction of the United States and would not be able to claim birthright citizenship. Slaughter-House Cases, 83 U.S. 36, 73, (1872) ("The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.").

* I haven't been able to find any cases saying this explicitly, but all the cases involving children born in foreign embassies sort of skip over the question as though they just assume that the child was born in the United States. See, e.g., Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010); Nikoi v. Attorney Gen. of U.S., 939 F.2d 1065 (D.C. Cir. 1991) These cases also go on to conclude that those children are not citizens of the United States, because they are not "subject to the jurisdiction thereof."

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    I've read somewhere, perhaps in the Foreign Affairs Manual, a policy statement to the effect that those born on US embassy grounds are not afforded jus soli citizenship of the United States, so it only makes sense that those born in foreign embassies in the US would have the same right to such citizenship as if they had been born anywhere else in the US. But the quotation is outdated: "citizens or subjects of foreign nations" are mostly subject to US jurisdiction when in the US (except diplomats of certain rank and enemy occupiers), and their children born there are US citizens. – phoog Jul 1 '18 at 4:41
  • @phoog - Does US law explicitly provide that enemy occupiers not be subject to US jurisdiction? If so, why? That would seem a practical matter more than a legal one; or, alternately, subject to the laws of the occupying country on the matter.... – Obie 2.0 Jul 1 '18 at 4:56
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    @Obie2.0 it's a longstanding custom in English law that carried over to US law. I'll look at the statute, but it's certainly something you see mentioned in judicial opinions. In any event, the laws governing an occupying force have no power to grant their children US citizenship, nor are those laws likely to have any such provision. – phoog Jul 1 '18 at 5:05
  • The children in Raya and Nikoi were not alleged to have been born in embassies, and they probably were not. Most births in modern times occur in hospitals. – phoog Jul 1 '18 at 12:31
  • I think you are correct in your analysis. Foreign embassies in the U.S. have special treatment, but aren't actually foreign territory in law, they are U.S. territory subject to special limitations that depend to a great extent on individual status. – ohwilleke Jul 2 '18 at 21:55

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