Bloodright Citizenship (Citizenship by Descent): Who Decides?

An excerpt from Friday’s concurrence in Guerra Quezada v. U.S., by Fifth Circuit Judge James Ho:

The Constitution vests Congress—not the judiciary—with the power to “establish an uniform Rule of Naturalization.” And that basic principle dictates the correct result in this case. Federal courts may not confer U.S. citizenship on any individual who fails to comply with all of the conditions and requirements set forth in our naturalization laws—and that includes the requirement of physical presence in the United States.

Yet that’s precisely what Plaintiffs [who were born outside the U.S. -EV] urge us to do here: They ask us to grant them citizenship, despite the fact that they plainly fail to comply with the physical presence requirement.

Plaintiffs theorize that they’re exempt from the physical presence requirement, because the ancestor from whom they claim citizenship was “wrongly turned away at the border” due to “systemic barriers.” They invoke a doctrine of constructive presence, based on a series of atextual rulings from the Board of Immigration Appeals.

But the constructive presence doctrine plainly conflicts with the governing statutory text. A number of our sister circuits have so held. And I’m grateful that our court today has agreed to so hold as well….

Under the Constitution, Congress may choose “not to grant a United States citizen the right to transmit citizenship by descent.” Rogers v. Bellei (1971). It may also “prescribe a period of residence in the United States as a condition precedent.”

And federal courts may not alter the conditions set by Congress. “Neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of these limitations.”

These principles doom Plaintiffs’ claim of citizenship. Because Congress has made amply clear which individuals are exempt from the physical presence requirements enumerated in 8 U.S.C. § 1401. And it is telling—and binding on federal courts—that Congress has declined to do so under the circumstances presented here.

Federal law, for example, has long 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.” And Congress has enacted additional exceptions over time. See 8 U.S.C. § 1401(g) (providing exceptions for those working with the United States Government abroad, those working for certain international organizations, and for spouses and dependent children of those who qualify for these exceptions)…. As our sister circuits have observed, the existence of other exceptions to the physical presence requirement “undermines the argument that this [c]ourt should add [another] ‘circumstances beyond control’ exception.” …

Plaintiffs nevertheless ask us to override U.S. law and grant them citizenship because Executive Branch officials “wrongly turned away [their ancestor] at the border” due to “systemic barriers.”

But that misunderstands the limited role of the judiciary. Respect for the political branches commands us to accept their judgments about who shall be offered the profound privilege of United States citizenship.

Throughout our history, the American people have welcomed countless foreigners who seek to come to our shores to pursue the privileges of U.S. citizenship. I am one of them. I was not born a United States citizen, but I thank God every day that I will someday die a United States citizen.

But the generosity of the American people is a matter of political discretion—not duty. “I cannot imagine how enormously different (and considerably worse, I am sure) my life would have been had I not been granted resident alien status in America.” And that’s the point: It’s a grant, not a guarantee. I will never forget that it was “my exquisitely good fortune“—not some right I could force upon the American people over their wishes—”that I was admitted into this country as an alien—and later naturalized as a citizen.” …

“United States citizenship is one of the greatest privileges this world has ever known.” And “as with anything of great value, the privilege of citizenship must be vigorously protected.” That is precisely what we do today….

And hare the specific facts of the case, plus a bit of the legal analysis, from the considerably longer majority opinion by Judge Leslie Southwick, joined by Judge Don Willett and Judge Ho:

Guerra-Vasquez and Guerra-Quezada appeal and contend that their respective citizenship flows from the same source, Cruz Rodriguez de Guerra, who is the grandmother of the former and the great-grandmother of the latter….

Cruz Rodriguez de Guerra was born in Kansas in 1924, making her an American citizen. See An affidavit attached to the complaint makes no representations concerning how long she lived in the United States, but it does assert she attempted to re-enter the United States in 1940 after being in Mexico. She was denied entry because the officers at the border told her she could not enter because she had “abandoned her residence.” In 1981, the Immigration and Naturalization Service issued her a completed Form I-197, better known as a “U.S. Citizen Identification Card,” stating she “claimed under oath to be a citizen of the U.S. through birth in U.S.”

Cruz Rodriguez de Guerra’s husband and the father of her children, Benigno Guerra, was born in Mexico. In 1944, she gave birth to a son, Antonio Guerra-Rodriguez, in Mexico. That son was the father of Appellant Guerra-Vasquez, who was born in Mexico in 1962, and the grandfather of Appellant Jorge Antonio Guerra-Quezada, who was born in Mexico in 1993. Both of Guerra-Quezada’s parents were born in Mexico. Appellant Guerra-Quezada is Appellant Guerra-Vasquez’s nephew.

In December 2021, United States Citizen and Immigration Services (USCIS) issued a certificate of citizenship to Guerra-Quezada — according to the Government, erroneously—after he filed an N-600 application for such a certificate. The Government has commenced proceedings to cancel Guerra-Quezada’s certificate, and those proceedings, to our knowledge, remain pending.

Both Guerra-Vasquez and Guerra-Quezada have been ordered to leave the country in the past. Guerra-Vasquez was a lawful permanent resident at one point but was issued a voluntary departure order in 2007; he re-entered the country illegally the next year, where he was detained and pled guilty to improper entry by an alien under 8 U.S.C. § 1325. He re-entered again but had remained undetected in Arlington, Texas. Guerra-Quezada was a long-time lawful permanent resident before he pled guilty to felony online solicitation of a minor. The Government subsequently removed him pursuant to 8 U.S.C. § 1227(a)(2)(E)(i). He later re-entered the country after being inspected….

“The applicable law for transmitting citizenship to a child born abroad when one parent is a citizen is the statute in effect at the time of the child’s birth.” Guerra-Vasquez was born in 1962. The statute that applied at that time required that—for a person with one United States citizen parent and one non-citizen parent—the citizen parent have resided in this country for a total of ten years prior to the child’s birth, with at least five of those years coming after the parent was 14 years old. Guerra-Quezada was born in 1993. The statute to be applied to him stated that the United States citizen parent passes his or her citizenship to a child born outside this country only if that parent had been physically present in this country for a time totaling not less than five years prior to the child’s birth, with at least two of those years coming after the parent became 14 years old.

The Board of Immigration Appeals adopted what is now labeled the “constructive-presence doctrine” as a means of satisfying a similar physical presence requirement when determining whether a person has retained their citizenship. The requirement could be satisfied if “physical presence [was] prevented by circumstances beyond the individual’s control, or by reliance upon erroneous information received from a United States official.” No circuit court of appeals has adopted the doctrine. Several have rejected its application in the citizenship-transmission context, which is the relevant context for us.

The Appellants agree that their claims to citizenship fail unless we revise the statutory requirements detailed above with a version of constructive presence that results in the father of the older Appellant, Guerra-Vasquez, being a United States citizen. The younger Appellant, Guerra-Quezada, would then have us forge ahead even further, extending the doctrine one generation more and through a different family line.

We reject the constructive-presence doctrine. The concurring opinion helpfully explains what exceptions to actual physical presence Congress has enacted. None of the statutory exceptions apply here, and we will not create judicial ones. That means neither Guerra-Vasquez nor Guerra-Quezada is a United States citizen….

“Bloodright citizenship,” as a counterpoint to “birthright citizenship,” is a fairly rare phrase, but I thought it was striking and interesting. It is connected, I expect, to the Latin phrase jus sanguinis, which refers to citizenship being granted based on the citizenship of one’s parents, as opposed to jus solis, which refers to citizenship being granted based on place of birth. The Fourteenth Amendment provides for jus solis, as the Court just recently reaffirmed in Trump v. Barbara; but American law also provides for jus sanguinis as well, under the restrictions imposed by the specific statutes.

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