Madar v. U.S. Citizenship & Immigration Servs.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-1741
_______________
JOZEF R. MADAR,
Appellant
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court Civil No. 2-07-cv-01254)
District Judge: Hon. David S. Cercone
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 18, 2019
Before: GREENAWAY, JR., SHWARTZ, and PORTER,
Circuit Judges.
(Opinion filed: March 7, 2019)
_______________
Mark A. Goldstein
Goldstein & Associates
1125 Penn Avenue
3rd Floor
Pittsburgh, PA 15222
Counsel for Plaintiff-Appellant
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Joseph H. Hunt
William C. Peachey
Sairah G. Saeed
Gisela A. Westwater
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20044
Counsel for Defendant-Appellee
_______________
OPINION OF THE COURT
_______________
PORTER, Circuit Judge.
Our immigration laws have long required foreign-born children of citizens to reside
or be physically present in the United States for some amount of time to retain citizenship.
In extraordinary cases, these retention requirements can be constructively satisfied if cir-
cumstances prevented the foreign-born individual from complying with the statute. But
while equity may allow someone to retain citizenship, it has only supported transmitting
2
that retained citizenship to a descendant in rare cases—typically, when a government error
causes citizenship to lapse.
Here, we consider whether Jozef Madar is a citizen. Madar argues that he is because
his father constructively satisfied the statutory requirements for retaining citizenship and
transmitted this citizenship to Madar himself. Because Madar’s father, even if he were a
citizen, did not transmit citizenship under a constructive physical presence theory, we will
affirm the District Court’s judgment.
I
Madar was born in communist-ruled Czechoslovakia in 1964 and entered the United
States in 1991. After overstaying his visa, he settled in the Pittsburgh area. He has litigated
his legal status in the decades since his arrival. In this proceeding, Madar seeks a declara-
tion that he is a United States citizen because his late father, Jozef Madar, Sr., was a citizen,
and his father’s citizenship transmitted to him. Untangling this citizenship question re-
quires a brief journey through the Madar family tree.
Madar’s paternal grandmother, Julianne Cikovsky, was born in 1906 in Youngs-
town, Ohio. As she entered her teenage years, she left the United States to settle in Czech-
oslovakia. She married there and gave birth to a son, Madar, Sr., in 1940. Madar, Sr. lived
in Czechoslovakia—and after its dissolution, Slovakia—his entire life. Madar, Sr. never
lived in the United States. In the 1960s, Madar, Sr. married a non-United States citizen in
Czechoslovakia and had children. One child was the petitioner, Madar.
Madar, Sr. knew of his mother’s American birth, but he did not know that this might
entitle him to United States citizenship. Madar, Sr. learned of this possibility through his
3
son’s immigration proceedings in the 1990s. In one proceeding, Madar, Sr. swore in an
affidavit that the political circumstances of post-war Czechoslovakia would have made
compliance with retention requirements difficult, if not impossible. Madar, Sr. observed
that he would have had to reside in the United States for at least some time, but the Czech
communist government would have prevented that—either by proscribing his emigration
outright or making it so costly as to be practically impossible.
Madar sought a declaration from the District Court that his father constructively
retained United States citizenship and transmitted that citizenship to him, making Madar
ineligible for removal. The District Court denied Madar’s request. It held that even if
Madar, Sr. had retained his citizenship under an equitable theory that excused his non-
compliance with statutory physical presence requirements, Madar, Sr. did not transmit that
citizenship to his son. This appeal followed.
II
The District Court had jurisdiction under 28 U.S.C. § 2241. We have appellate ju-
risdiction under 28 U.S.C. §§ 1291 and 2253(a). “[W]e review a district court’s legal con-
clusions de novo.” United States v. Green, 898 F.3d 315, 317 (3d Cir. 2018).
III
Madar argues that his father was a United States citizen (because his father retained
his citizenship), so he is as well (because his father transmitted that retained citizenship).
Madar grounds this claim on an administrative decision involving the constructive physical
presence doctrine, Matter of Navarrete, 12 I. & N. Dec. 138 (BIA 1967). Madar contends
that Navarrete remains good law and controls the transmission-of-citizenship question
4
here. Madar also argues that the District Court treated him differently than the petitioner in
Navarrete, violating his equal protection rights.
Madar can be a citizen only if his father was. But even assuming that Madar’s father
retained his citizenship, he did not transmit that citizenship to Madar for at least two rea-
sons. First, the applicable immigration statutes contained limited exceptions to the law’s
physical presence requirements, and like all other courts of appeals to consider this issue,
we decline to read broader equitable exceptions into the law. Second, Navarrete does not
apply because no United States government error interrupted citizenship retention and
transmission.
In determining whether Madar is a citizen, we look to the statute in effect at the time
of Madar’s birth. Runnett v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990) (“The applicable law
for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the
statute that was in effect at the time of the child’s birth.”). Madar was born in Czechoslo-
vakia in 1964. Assuming that his father was a citizen at the time of Madar’s birth, the
Immigration and Nationality Act of 1952 controls Madar’s citizenship status. That law
provided that several categories of individuals “shall be nationals and citizens of the United
States at birth,” including:
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 cit-
izen of the United States who, prior to the birth of such person, was physi-
cally 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 at-
taining the age of fourteen years: Provided, That any periods of honorable
service in the Armed Forces of the United States by such citizen parent may
be included in computing the physical presence requirements of this para-
graph.
5
Immigration and Nationality Act of 1952, Pub. L. No. 82-414, tit. III, ch. 1, § 301(a)(7),
66 Stat. 235 (codified at 8 U.S.C. § 1401(a)(7), codified as amended at 8 U.S.C. § 1401(g))
(the “1952 Act”). By its plain terms, the 1952 Act imposed physical presence requirements,
but provided an exception for members of the United States military. Congress later added
a second exception for “periods of employment with the United States Government.” See
Act of Nov. 6, 1966, Pub. L. No. 89-770, 80 Stat. 1322 (codified at 8 U.S.C. § 1401(a)(7)).
In an earlier proceeding, Madar’s father admitted that he failed to satisfy these phys-
ical presence requirements, as he lived in Czechoslovakia—and after its dissolution, Slo-
vakia—his entire life. For Madar to have citizenship, we would have to determine that
Madar’s father was constructively present in the United States, retained his citizenship, and
transmitted that citizenship to Madar. Other courts of appeals have uniformly rejected ex-
tending the constructive physical presence doctrine to transmission of citizenship, and the
reasoning of those decisions is instructive here.
First, the plain meaning of the 1952 Act precludes Madar’s transmittal argument.
“Statutory construction must begin with the language employed by Congress and the as-
sumption that the ordinary meaning of that language accurately expresses the legislative
purpose.” Gross v. FBL Fin. Servs., 557 U.S. 167, 175–76 (2009) (quoting Engine Mfrs.
Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004)). Under the interpretive
canon expressio unius est exclusio alterius, we presume that “[t]he expression of one thing
implies the exclusion of others.” Antonin Scalia & Bryan A. Garner, Reading Law 107
(2012). The 1952 Act, as amended, identifies just two exceptions to the physical presence
6
requirement: for service in the armed forces or government employment. “[T]he existence
of these two articulated exceptions to the physical presence requirements undermines [the]
argument that this Court should add a third ‘circumstances beyond control’ exception.”
Tullius v. Albright, 240 F.3d 1317, 1321 (11th Cir. 2001); see also Drozd v. I.N.S., 155
F.3d 81, 86 (2d Cir. 1998) (noting that Congress “expressly specified certain exceptions
from the physical presence requirement” and declining to read additional exceptions into
the statute). Like all other circuits to address the issue, we decline to venture beyond the
statutory text to import Madar’s proposed hardship exception.1 Such an approach would
cut against the statute’s plain language, case law construing the statute, and basic interpre-
tive principles.
In declining to extend the constructive physical presence doctrine, courts have noted
that retention cases and transmission cases involve different interests. Because “courts have
traditionally hesitated to find that Congress could take away citizenship without the citi-
zen’s consent,” they may find “constructive residence in order to preserve an individual’s
1
Madar tries to escape this plain statutory language by arguing that Congress has
generally loosened statutory residency or physical presence requirements over the years,
and that we should join this trend to decide the citizenship question in his favor. This evolv-
ing-standards argument fails as both an interpretive and historical matter. For starters,
Madar concedes—as he must—that the 1952 Act applies. Later-enacted immigration stat-
utes irrelevant to the transmission issue cannot disturb the clear language of the 1952 Act.
And as an empirical matter, the history of the immigration laws hardly shows a linear trend
toward liberalizing residency or physical presence requirements. In fact, the 1952 Act itself
represented a tightening of requirements, as “Congress enacted the continuous-physical-
presence requirement in 1952 in response to abuses of the more lenient ‘residence’ require-
ment.” I.N.S. v. Phinpathya, 464 U.S. 183, 198 (1984) (Brennan, J., concurring). Besides
undermining Madar’s evolving-standards argument, this change in language further “com-
pel[s] a strict adherence to the plain terms of the Act.” Drozd, 155 F.3d at 87.
7
retention of citizenship.” Runnett, 901 F.2d at 784 (citing Rogers v. Bellei, 401 U.S. 815,
821–22 (1971)). But this concern does “not exist for the transmission of citizenship where
citizenship is simply not being conferred.” Id.As for Madar’s contention that Navarrete supports his transmission-of-citizenship
argument, he ignores that the decision turned on a government error. In Navarrete, children
born in Mexico claimed that their mother was a United States citizen, retained that citizen-
ship through constructive physical presence in the United States, and transmitted that citi-
zenship to them. 12 I. & N. Dec. at 142. The Board of Immigration Appeals agreed. Id.
Although the mother did not actually fulfill the physical presence requirements of the 1952
Act, that was only because she “was prevented, in September 1954, from coming to the
United States to reside permanently, by a United States official acting under an interpreta-
tion of the law later conceded by the Government to be erroneous.” Id. Had the United
States official not made this mistake, the mother could “have completed the period of phys-
ical presence necessary to insure retention of her United States citizenship,” and that “pe-
riod of physical presence would have qualified her to pass on citizenship at birth to” her
children. Id.
Here, by contrast, the United States government made no mistake. Madar’s father
was unable to retain citizenship because the political leadership of Soviet-era Czechoslo-
vakia allegedly would have thwarted any attempt to live in the United States. Madar does
not point to any United States government misconduct that caused his father’s citizenship
to lapse, and courts have interpreted Navarrete to be limited to just that scenario. See Tul-
lius, 240 F.3d at 1321; Drozd, 155 F.3d at 88; Runnett, 901 F.2d at 784 n.3. Thus, Navarrete
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does not apply here for the same reason it did not apply in Tullius, Drozd, or Runnett: No
government error prevented Madar’s father from retaining citizenship.2
Navarrete’s inapplicability also forecloses Madar’s equal protection argument. In
short, Madar claims that because Navarrete applied the constructive physical presence doc-
trine to citizenship transmittal, but the District Court declined to do so here, the District
Court violated his equal protection rights. See U.S. Const. amend XIV, § 1 (“No State shall
… deny to any person within its jurisdiction the equal protection of the laws.”). Madar
appears to raise a class-of-one equal protection claim. We have explained that “[t]o state a
claim under a class of one theory, ‘a plaintiff must allege that (1) the defendant treated him
differently from others similarly situated, (2) the defendant did so intentionally, and
(3) there was no rational basis for the difference in treatment.’” Newark Cab Ass’n v. City
of Newark, 901 F.3d 146, 156 (3d Cir. 2018) (quoting Hill v. Borough of Kutztown, 455
F.3d 225, 239 (3d Cir. 2006)).
Madar was not treated differently than anyone similarly situated. Unlike in Navar-
rete, no United States official made an error that prevented Madar or his father from ob-
taining citizenship. Thus, Madar’s equal protection argument fails the first prong of this
test.
2
To be fair, Navarrete suggests in dicta that it could apply more broadly. See 12 I.
& N. Dec. at 142 (“Constructive residence and physical presence … normally come into
play in situations where actual residence or physical presence were prevented by circum-
stances beyond the individual’s control, or by reliance upon erroneous information re-
ceived from a United States official.”) (emphasis added). Despite that disjunctive, Navar-
rete’s holding was based on a United States “official acting under an interpretation of the
law later conceded by the Government to be erroneous.” Id.
9
*****
The District Court properly determined that the constructive physical presence doc-
trine does not apply here to transmit United States citizenship under the 1952 Act. So we
will affirm the District Court’s denial of Madar’s claim for declaratory relief under 28
U.S.C. § 2241.
10