Juan J. Rego Valdes v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 25, 2005
No. 04-15017
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
BIA No. A23-161-215
JUAN JOSE REGO VALDES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
(April 25, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Juan Jose Rego Valdes (“Valdes-Rego”), proceeding pro se, seeks review of
the Board of Immigration Appeals’s (“BIA’s”) August 31, 2004, order affirming
the immigration judge’s (“IJ’s”) decision that Valdes-Rego’s mother did not meet
the statutory prerequisites for transmitting her United States citizenship to Valdes-
Rego.1
On appeal, Valdes-Rego argues that he is a United States citizen rather than
an alien. He also claims that the IJ’s refusal to apply the constructive physical
presence doctrine violated the Equal Protection clause. We note that although
Valdes-Rego was found deportable because of his criminal offenses and INA §
242(a)(2)(C) would normally limit our review, we retain jurisdiction to consider
the issues that Valdes-Rego has raised. See Brooks v. Ashcroft, 283 F.3d 1268,
1272 (11th Cir. 2002) (noting that we have jurisdiction to review the “threshold
issue of whether [p]etitioner is an alien.”).
I. Transmission of Citizenship
Valdes-Rego first argues that case law indicates that an exception to the
INA’s physical presence requirement should be applied when a United States
official prevents an applicant from meeting those requirements. Valdes-Rego
argues that the “statute’s spirit” would be frustrated if his mother’s citizenship was
not transferred to him, because his mother repeatedly but unsuccessfully attempted
to register him as a foreign-born United States citizen.
1
Because Valdes-Rego’s immigration proceedings commenced after April 1, 1997, the
permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”), govern his petition for review.
2
The statute detailing judicial review of immigration decisions states that if
the court of appeals “finds from the pleadings and affidavits that no genuine issue
of material fact about the petitioner’s nationality is presented, the court shall
decide the nationality claim.” INA § 242(b)(5)(A), 8 U.S.C. § 1252(b)(5)(A).
To determine Valdes-Rego’s citizenship, we look to the applicable law in
effect at the time of his birth. Tullius v. Albright, 240 F.3d 1317, 1320 (11th Cir.
2001). In 1970, when Valdes-Rego was born, 8 U.S.C. § 1401(a)(7) provided
that:
[A] person born outside the geographical limits of the United States
and its outlying possessions of parents one of whom is an alien, and
the other a citizen of the United States who, prior to the birth of such
person, was physically present in the United States or its outlying
possessions for a period or periods totaling not less than ten years, at
least five of which were after attaining the age of fourteen years . . .
was a national and citizen of the United States. 8 U.S.C. § 1401(a)(7) (1970).2 In
addition, 8 U.S.C. § 1401(a)(7) explicitly sets forth two physical presence
requirement exceptions: (1) for a period of honorable service in the armed forces,
or (2) for employment with the United States government. Id.In Tullius, we considered a situation where an appellant sought declaratory
judgment of United States citizenship. 240 F.3d at 1318. In that case, the
2
This provision, as amended, is now codified at 8 U.S.C. § 1401(g).
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appellant contended that his father had transmitted United States citizenship to
him, even though both parties agreed that the appellant’s father had not satisfied
the physical presence requirements set forth in the statute. Id. at 1319-20. The
appellant argued that a constructive physical presence doctrine should apply in
transmission cases when a citizen is prevented from satisfying the physical
presence requirement because of circumstances beyond his control. Id. at 1320.
We held, however, that “the plain meaning of 8 U.S.C. § 1401(a)(7) prevents this
interpretation.” Id. We reasoned that “the existence of . . . two articulated
exceptions to the physical presence requirements undermine[d] [the] appellant’s
argument that this Court should add a third ‘circumstances beyond control’
exception.” Id. at 1321.
In the instant case, the record indicates that Valdes-Rego’s mother relocated
to Cuba in 1955, at the age of seven, and returned to the United States in 1980.
Accordingly, when Valdes-Rego was born in 1970, his mother had not satisfied
the physical presence requirement set forth in § 1401(a)(7). In drafting 8 U.S.C.
§ 1401(a)(7), Congress clearly intended to include two exceptions to the physical
presence requirement, to be applied when: (1) an individual serves in the armed
forces, and (2) an individual is employed by the United States government. See 8
U.S.C. § 1401(a)(7)(1970). The record contains no evidence suggesting that
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Valdes-Rego’s mother fell within either of these exceptions.
Despite Valdes-Rego’s allegations, the record contains no objective
evidence suggesting that United States officials prevented his mother from
returning to the United States and fulfilling the physical presence requirement.
Moreover, even if he had submitted such evidence, the applicable version of the
statute does not explicitly provide for an exception for individuals who were
prevented from returning to the United States because of misconduct by a United
States official. See 8 U.S.C. § 1401(a)(7)(1970). Finally, we held that “the
doctrine of constructive physical presence does not apply to the physical presence
requirement for transmission of United States citizenship under 8 U.S.C.
§ 1401(a)(7).” See Tullius, 240 F.3d at 1321. Accordingly, we deny Valdes-
Rego’s petition as to this issue.
II. Equal Protection Claim
Valdes-Rego next argues on appeal that our current case law, as set forth in
Tullius, violates the Equal Protection clause, as it sets forth a distinction that is
unrelated to any legitimate governmental interest. He maintains that because he
has been stripped of a fundamental right to citizenship, his claim should be
examined under a strict scrutiny standard. Further, Valdes-Rego claims that there
should be no distinction between the doctrines applied in citizenship transmission
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cases and in citizenship retention cases, and asserts that the application of the
constructive physical presence doctrine in retention cases but not in transmission
cases is completely arbitrary and unreasonable, and thus, does not pass muster
under an ordinary scrutiny standard. Furthermore, he contends, the distinction
does not pass muster under a strict scrutiny standard, as the distinction is not
necessary to promote a compelling governmental interest.
We review constitutional challenges de novo. Lonyem v. U.S. Attorney
Gen., 352 F.3d 1338, 1341 (11th Cir. 2003). The Supreme Court stated in
Mathews v. Diaz, 426 U.S. 67, 82, 96 S. Ct. 1883, 1892 (1976), that “decisions
made by the Congress or the President in the area of immigration and
naturalization” are subject to “a narrow standard of review” that is equivalent to
rational basis scrutiny. Furthermore, we have noted that, “[b]ecause federal
authority over aliens is plenary, federal classifications that distinguish among
groups of aliens are subject to relaxed scrutiny under the rational basis standard of
review, and are valid unless ‘arbitrary or unreasonable.’” Fernandez-Bernal v.
U.S. Attorney Gen., 257 F.3d 1304, 1312 (11th Cir. 2001). We explained that,
“[a]ccording to the rational basis standard, such classifications ‘must be
reasonable, not arbitrary, and must rest upon some ground of difference having a
fair and substantial relation to the object of the legislation, so that all persons
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similarly circumstanced shall be treated alike.’” Id.Valdes-Rego’s claim that his equal protection rights have been violated
because the constructive physical presence doctrine does not apply in transmission
of citizenship cases must fail. There is a rational basis for Congress’s distinction
between situations where an individual seeks to retain their United States
citizenship and situations where citizenship is transferred to foreign-born children
of United States citizens. Accordingly, Valdes-Rego’s equal protection rights
were not violated by the IJ’s refusal to extend the doctrine of constructive physical
presence to cover situations arising under 8 U.S.C. § 1401(a)(7), and we,
therefore, deny Valdes-Rego’s petition as to this issue.
PETITION DENIED.
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