Papa v. Attorney General , 522 F. App'x 86 ( 2013 )

11-5021-cv
Papa v. Attorney General
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND
IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 8th day of April, two thousand thirteen.
4
5 PRESENT:
6 RAYMOND J. LOHIER, JR.,
7 SUSAN L. CARNEY,
8 Circuit Judges,
9 JED S. RAKOFF,
10 District Judge.*
11 _____________________________________
12
13 GEORGE PAPA,
14
15 Plaintiff-Appellant,
16 v. 11-5021-cv
17
18 ATTORNEY GENERAL, USCIS,
19
20 Defendants-Appellees.
21 _____________________________________
22
*
The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
1 FOR PLAINTIFF-APPELLANT: George Papa, pro se, Mexico City, Mexico.
2
3 FOR DEFENDANTS-APPELLEES: Margaret M. Kolbe, Assistant United States
4 Attorney (Varuni Nelson, Scott Dunn, Assistant
5 United States Attorneys, on the brief), for
6 Loretta E. Lynch, United States Attorney for the
7 Eastern District of New York, Brooklyn, NY.
8
9 Appeal from a judgment of the United States District Court for the Eastern District
10 of New York (Edward R. Korman, Judge).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the judgment is AFFIRMED.
13 Appellant George Papa, proceeding pro se, appeals from the District Court’s denial
14 of his application for a declaration of United States citizenship pursuant to 8 U.S.C.
15 § 1503(a) and 28 U.S.C. § 2201. We assume the parties’ familiarity with the facts and
16 record of the prior proceedings, to which we refer only as necessary to explain our
17 decision. Where, as here, the District Court denied on the merits an application for a
18 declaratory judgment pursuant to 28 U.S.C. § 2201, we review the District Court’s legal
19 determinations de novo. See Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading
20 Inc., 697 F.3d 59, 63-64 & n.5 (2d Cir. 2012).
21 The District Court correctly concluded that Papa was not entitled to a declaration
22 of United States citizenship because his father did not meet the physical presence
23 requirement in force in 1973 when Papa was born. The applicable statute required a
24 United States citizen parent to be physically present in the United States for a period of at
25 least ten years prior to the birth of a child in order for the child to be a United States
2
1 citizen. 8 U.S.C. § 1401(a)(7) (1973) (presently codified as amended at 8 U.S.C.
2 § 1401(g)). Papa is not entitled to relief because he conceded that his father, an Albanian-
3 born United States citizen, had not been physically present in the United States prior to
4 Papa’s birth. Papa’s argument that his father should be deemed to have been
5 constructively present in the United States prior to Papa’s birth because of his inability to
6 leave Albania is foreclosed by our holding in Drozd v. INS, 155 F.3d 81, 86 (2d Cir.
7 1998). In Drozd, the petitioner’s father, a United States citizen, lived in Poland at all
8 relevant times. To distinguish his case from Drozd, Papa alleges that Americans faced
9 greater persecution and isolation in Albania than in Poland. However, our holding in
10 Drozd that the physical presence requirement of Section 1401 cannot be constructively
11 satisfied does not depend on the specific factual circumstances of each case. See id.
12 Papa also argues that the physical presence exception to Section 1401 is
13 unconstitutional. In assessing the claim, we apply the rational basis standard of review
14 because the challenged classification is not one – like race, national origin, sex, or one
15 affecting fundamental rights – to which we apply strict or intermediate scrutiny.
16 Accordingly, we review the exception to determine whether it is “rationally related to a
17 legitimate governmental purpose.” Yuen Jin v. Mukasey, 538 F.3d 143, 159 (2d Cir.
18 2008). Here, Congress could rationally have chosen to carve out an exception to the
19 physical presence requirement for those serving in the United States military or employed
20 by the United States Government, given the ties to this country inherent in such service,
21 while not carving out a similar exception for United States citizens unable to come to the
22 United States due to oppressive foreign regimes or other hardship.
3
1 Finally, Papa’s motion to file a supplemental appendix to his reply brief is denied
2 because the documents he seeks to include in the supplemental appendix were not
3 presented to the District Court. See Fed. R. App. P. 10(a)(1); Loria v. Gorman, 306 F.3d
4 1271, 1280 n.2 (2d Cir. 2002) (“Ordinarily, material not included in the record on appeal
5 will not be considered.”). In any event, consideration of the supplemental appendix
6 would not affect the result here, as the supplemental appendix relates only to conditions
7 in Albania, which we have assumed for purposes of this order were as harsh as Papa
8 alleges.
9 We have considered all of Papa’s remaining arguments and conclude that they are
10 without merit. For the foregoing reasons, the judgment of the District Court is
11 AFFIRMED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
4