Fifth Circuit Rejects “Constructive Presence” to Satisfy Statutory Physical-Presence Requirements for Citizenship by Descent

1. Introduction

Two related plaintiffs—an uncle (Manuel Salvador Guerra Vasquez) and nephew (Jorge Antonio Guerra Quezada)—both born in Mexico, sued the United States and senior federal officials claiming they are U.S. citizens by descent through a U.S.-born ancestor, Cruz Rodriguez de Guerra (born in Kansas in 1924). They sought an array of remedies: money damages (including under the FTCA and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics), declaratory and injunctive relief (including under the APA and 8 U.S.C. § 1503(a)), and habeas relief (28 U.S.C. § 2255).

The consolidated appeals presented two core sets of issues:

• Citizenship merits: whether the plaintiffs could satisfy statutory physical-presence requirements for citizenship transmission by invoking a “constructive-presence doctrine.”
• Jurisdiction and procedure: whether multiple statutory and doctrinal limitations (8 U.S.C. § 1252(g), exhaustion under 8 U.S.C. § 1503(a), APA finality, and “in custody” for habeas) foreclosed federal-court review and relief.

2. Summary of the Opinion

The Fifth Circuit affirmed dismissal of all claims, principally on jurisdictional and procedural grounds, and—critically—on the merits of citizenship law to the extent necessary to resolve jurisdiction.

• Constructive presence rejected: The court refused to judicially create an exception to Congress’s physical-presence requirements for citizenship by descent under 8 U.S.C. § 1401(g) and its predecessor. As a result, neither plaintiff established U.S. citizenship.
• 8 U.S.C. § 1252(g) bar: Because plaintiffs were “aliens” for purposes of the case and their non-forfeited damages theories arose from the commencement/adjudication of removal proceedings, the court lacked jurisdiction over damages claims.
• 8 U.S.C. § 1503(a) exhaustion: Declaratory-judgment citizenship claims were dismissed for failure to exhaust administrative remedies, treated as jurisdictional under circuit precedent.
• APA dismissed for lack of final agency action: Plaintiffs failed to identify reviewable “final agency action” under 5 U.S.C. §§ 704, 706.
• Habeas dismissed for lack of custody: The uncle’s § 2255 claim failed because he was not “in custody,” as required by Maleng v. Cook.
• Due process forfeiture: Due process arguments were deemed forfeited for inadequate briefing.
• Briefing integrity warning: The panel noted significant citation inaccuracies and misattributions, invoking counsel’s obligations under Fed. R. App. P. 28 and the court’s disciplinary authority under Fed. R. App. P. 46(c).

The court affirmed dismissal without prejudice in the nephew’s case and modified the uncle’s judgment to reflect dismissal without prejudice due to lack of jurisdiction.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Citizenship transmission and the governing-time rule

• Iracheta v. Holder, 730 F.3d 419 (5th Cir. 2013): supplied the controlling framework that the “statute in effect at the time of the child's birth” governs transmission. This anchored the court’s use of the 1962 statute (ten years’ residence with five after age 14) for Guerra-Vasquez and the 1993 statute (five years’ physical presence with two after age 14) for Guerra-Quezada.

B. Constructive-presence doctrine: administrative origins and circuit rejection

• Matter of Navarrete, 12 I. & N. Dec. 138 (BIA 1967): described the BIA’s “constructive-presence doctrine” in a retention context, allowing satisfaction of physical presence when prevented by circumstances beyond control or reliance on erroneous official information. The Fifth Circuit acknowledged this administrative lineage but refused to extend it to citizenship transmission.
• Matter of Farley, 11 I. & N. Dec. 51 (BIA 1965); Matter of Yanez-Carrillo, 10 I. & N. Dec. 366 (BIA 1963): cited in the concurrence as further examples of the BIA’s atextual constructive-presence reasoning—used to underscore that agency decisions cannot override clear statutory text.
• Runnett v. Shultz, 901 F.2d 782 (9th Cir. 1990); Drozd v. INS, 155 F.3d 81 (2d Cir. 1998); Tullius v. Albright, 240 F.3d 1317 (11th Cir. 2001); Madar v. USCIS, 918 F.3d 120 (3d Cir. 2019): collectively supplied persuasive authority that constructive presence cannot be used to satisfy statutory physical-presence requirements in the citizenship-transmission context. The panel aligned the Fifth Circuit with these circuits.

C. Separation of powers limits on “equitable” citizenship

• Rogers v. Bellei, 401 U.S. 815 (1971): in the concurrence, used for the proposition that Congress may set (or withhold) terms for transmitting citizenship by descent, including residence conditions precedent.
• I.N.S. v. Pangilinan, 486 U.S. 875 (1988): the concurrence treated this as decisive: federal courts cannot confer citizenship through estoppel or equitable powers contrary to statutory limits. This case functioned as the doctrinal “stop sign” for judicially-crafted exceptions like constructive presence.

D. Jurisdictional barriers in removal-related contexts

• Duron v. Johnson, 898 F.3d 644 (5th Cir. 2018); Humphries v. Various Fed. USINS Emps., 164 F.3d 936 (5th Cir. 1999): applied to characterize tort-style allegations as repackaged challenges to the decision to commence/adjudicate removal proceedings, triggering 8 U.S.C. § 1252(g)’s jurisdictional bar.
• Smith v. Sch. Bd. of Concordia Par., 88 F.4th 588 (5th Cir. 2023): used to hold that insufficient briefing forfeited argument on whether claims “arise from” one of § 1252(g)’s enumerated categories.

E. Citizenship declaratory judgment exhaustion

• Rios-Valenzuela v. DHS, 506 F.3d 393 (5th Cir. 2007): controlled the holding that exhaustion is required before a § 1503(a) action and that the requirement is jurisdictional under Fifth Circuit precedent.
• Villegas v. Noem, 149 F.4th 554 (5th Cir. 2025) (citing Santos-Zacaria v. Garland, 598 U.S. 411 (2023)): flagged in a footnote as potentially relevant to modern “claims-processing vs jurisdictional” analysis, but the court declined to revisit its rule absent briefing.

F. APA finality as a gateway to review

• Louisiana v. U.S. Army Corps of Eng'rs, 834 F.3d 574 (5th Cir. 2016): supplied the proposition that “final agency action” is a jurisdictional prerequisite to APA review under 5 U.S.C. §§ 704, 706.
• Harris v. FedEx Corp. Servs., Inc., 92 F.4th 286 (5th Cir. 2024): used to refuse to consider an APA argument raised for the first time on appeal (relating to cancellation of certificates of citizenship).

G. Habeas “in custody” requirement

• Maleng v. Cook, 490 U.S. 488 (1989): controlled the conclusion that the § 2255 challenge failed for lack of custody because the petitioner had been released from confinement and did not advance a collateral-consequences theory on appeal.

H. Briefing standards and forfeiture

• United States v. Scroggins, 599 F.3d 433 (5th Cir. 2010): applied to deem due process arguments forfeited due to inadequate, defective briefing.
• The panel’s cautionary discussion of Ng Fung Ho v. White, 259 U.S. 276 (1922), Doe v. McAleenan, 926 F.3d 910 (7th Cir. 2019), Afroyim v. Rusk, 387 U.S. 253 (1967), and Perez v. Brownell, 356 U.S. 44 (1958) (Warren, C.J., dissenting) served not as merits authorities but as examples of serious misquotation/misattribution, reinforcing the enforcement backdrop of Fed. R. App. P. 28 and potential discipline under Fed. R. App. P. 46(c). The panel also cited Garces v. Hernandez, No. 25-50342, 2025 WL 2401001 (5th Cir. Aug. 19, 2025) (unpublished) to emphasize that fabricated authorities may trigger additional rules (including Fed. R. App. P. 32 and 38).

3.2 Legal Reasoning

A. The new rule: no judicial “constructive presence” for citizenship transmission

The central doctrinal move is the court’s categorical refusal to “revise the statutory requirements” governing physical presence by crafting an extra-textual constructive-presence exception. The panel reasoned that Congress has specified the requirements and also enacted particular statutory exceptions; the absence of an exception for being “wrongly turned away” at the border meant the judiciary could not create one. Judge Ho’s concurrence grounded this in constitutional structure (Congress’s naturalization power) and the Supreme Court’s admonition in I.N.S. v. Pangilinan that equitable doctrines cannot confer citizenship contrary to statute.

B. Jurisdiction follows the citizenship merits (for § 1252(g))

Section 1252(g) removes jurisdiction over claims by an “alien” arising from the Attorney General’s decisions to commence proceedings, adjudicate cases, or execute removal orders. Plaintiffs tried to escape the “alien” premise by asserting citizenship. Once the court rejected constructive presence, it concluded plaintiffs were not citizens and thus were “aliens” for § 1252(g) analysis. The court then found (i) forfeiture of broader “arising from” arguments due to inadequate briefing, and (ii) as to the non-forfeited tort claims, those claims were effectively attacks on commencement/adjudication of removal actions under Duron v. Johnson and Humphries v. Various Fed. USINS Emps..

C. § 1503(a): exhaustion as a jurisdictional gate

Even apart from § 1252(g), the panel held it lacked jurisdiction over declaratory relief under 8 U.S.C. § 1503(a) because plaintiffs did not demonstrate exhaustion. The uncle had not commenced appropriate administrative procedures; the nephew’s certificate was granted but in ongoing cancellation proceedings, so the administrative process was not complete. Under Rios-Valenzuela v. DHS, the court treated exhaustion as jurisdictional, while noting (without deciding) that modern Supreme Court doctrine on jurisdictional labeling (Santos-Zacaria v. Garland) might be relevant in another case with proper briefing.

D. APA: the insistence on “final agency action”

The APA does not supply free-standing review of agency conduct; it requires a reviewable “final agency action” or an “action made reviewable by statute.” Plaintiffs failed to identify such an action. The panel treated this deficiency as jurisdictional under Louisiana v. U.S. Army Corps of Eng'rs. A new “arbitrary and capricious” theory about certificate cancellation was not considered because it was raised for the first time on appeal (Harris v. FedEx Corp. Servs., Inc.).

E. Habeas: “in custody” remains non-negotiable

The uncle’s collateral attack under 28 U.S.C. § 2255—premised on “legal innocence” of 8 U.S.C. § 1325 because he claimed birthright citizenship—failed jurisdictionally because he was not “in custody,” as required by Maleng v. Cook. The court also agreed the claim was time-barred, but the custody defect independently defeated jurisdiction.

F. Forfeiture and attorney candor: procedure as substance

The panel’s forfeiture rulings (for inadequate due process briefing) and its extended discussion of misquotations underscore a broader point: citizenship litigation often turns on technical statutory predicates and procedural gateways; inadequate briefing can be outcome-determinative. The court stopped short of discipline but explicitly warned that inaccuracies and missing record citations violate Fed. R. App. P. 28 and Fifth Circuit local rules and may support discipline under Fed. R. App. P. 46(c).

3.3 Impact

• Doctrinal alignment and foreclosure of “constructive presence” in the Fifth Circuit: By rejecting the constructive-presence doctrine in the citizenship-transmission context, the Fifth Circuit joins the circuits cited (Runnett v. Shultz; Drozd v. INS; Tullius v. Albright; Madar v. USCIS). Future litigants in the Fifth Circuit cannot rely on equitable or agency-created “constructive” physical presence to satisfy 8 U.S.C. § 1401(g) requirements for descent-based citizenship.
• Emphasis on statutory exceptions as exclusive: The concurrence’s discussion of Congress’s enumerated exceptions (e.g., service in the Armed Forces; government employment abroad; certain international organizations) signals a restrictive interpretive approach: where Congress enumerates exceptions, courts will be reluctant to imply others.
• Jurisdictional triage in immigration damages suits: The opinion reinforces the breadth of 8 U.S.C. § 1252(g) when plaintiffs’ damages claims are functionally challenges to the initiation or adjudication of removal proceedings. Tort and constitutional labels will not avoid the bar if the gravamen is removal-process conduct.
• Procedural sequencing matters for citizenship claims: The § 1503(a) exhaustion holding and APA finality holding highlight that even potentially meritorious citizenship evidence (e.g., an issued certificate later challenged) may not be immediately justiciable in district court absent completion of requisite administrative pathways.
• Professional responsibility spotlight: The court’s detailed correction of purported quotations and citations suggests heightened scrutiny in immigration/citizenship briefing, with potential downstream effects including sanctions risk and credibility costs.

4. Complex Concepts Simplified

• Citizenship “by descent” (transmission): A person born abroad may be a U.S. citizen at birth if Congress’s statute says so and the parent(s) meet statutory conditions (including physical presence in the U.S. for specified periods).
• Physical presence requirement: Congress often requires that the U.S.-citizen parent have lived (physically been present) in the United States for a minimum number of years before the child’s birth (with part of that time after a certain age).
• “Constructive presence”: A proposed judge-made or agency-derived substitute for actual presence—treating someone as if they were physically present due to circumstances like being wrongly prevented from entering. The Fifth Circuit rejected using this substitute to meet statutory requirements for citizenship transmission.
• 8 U.S.C. § 1252(g): A jurisdiction-stripping statute that blocks courts from hearing certain claims (including damages suits) that arise from the government’s choices to start, conduct, or carry out removal proceedings.
• 8 U.S.C. § 1503(a) exhaustion: A requirement (treated as jurisdictional in this circuit) that a person complete administrative steps before asking a federal district court to declare them a U.S. national.
• APA “final agency action”: Courts can usually review only agency decisions that are final—i.e., the agency has completed its decisionmaking and legal consequences flow from it.
• Habeas “in custody”: A federal court can hear a § 2255 challenge only if the person is in custody under the conviction at issue (or has a qualifying custody status). Simply suffering reputational or practical consequences of a past conviction typically is not enough under Maleng v. Cook.
• Forfeiture (in appellate briefing): If a party does not properly develop an argument with accurate legal citations and record references, the court may treat the argument as abandoned and refuse to decide it.

5. Conclusion

Guerra Vasquez v. United States establishes a clear Fifth Circuit rule: courts will not recognize a “constructive-presence doctrine” to satisfy Congress’s physical-presence requirements for citizenship by descent. The decision also illustrates how citizenship assertions interact with—and often are defeated by—immigration jurisdiction-stripping provisions, exhaustion prerequisites, APA finality limits, and habeas custody requirements.

In the broader legal landscape, the opinion reinforces separation-of-powers principles in nationality law: citizenship eligibility is set by Congress’s text and enumerated exceptions, not by judicial equity—and litigants must navigate the procedural gateways with meticulous, accurate briefing to obtain any federal-court merits review.