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

1. Introduction

In Guerra Quezada v. United States (consolidated with Guerra Vasquez v. United States), the Fifth Circuit considered a wide-ranging set of claims brought by an uncle and nephew—Manuel Salvador Guerra Vasquez and Jorge Antonio Guerra Quezada— both born in Mexico, who asserted they were United States citizens by descent.

Their citizenship theory traced to a common ancestor, Cruz Rodriguez de Guerra, born in Kansas in 1924 (and thus a U.S. citizen). Plaintiffs alleged that Cruz was denied re-entry at the border in 1940 because officials told her she had “abandoned her residence,” and they relied on a later-issued Form I-197 reflecting that she “claimed under oath to be a citizen of the U.S. through birth in U.S.”

The key issue was whether Plaintiffs could satisfy Congress’s statutory physical-presence prerequisites for transmitting citizenship to children born abroad, by invoking a judicially recognized “constructive-presence” theory (i.e., treating an ancestor as “present” in the U.S. despite not meeting the statutory physical-presence requirement, due to purported wrongful exclusion or circumstances beyond control). Secondary issues included multiple jurisdictional bars and procedural defects affecting claims under 8 U.S.C. § 1252(g), 8 U.S.C. § 1503(a), the APA, and habeas statutes, plus forfeiture of due process claims and briefing irregularities.

2. Summary of the Opinion

The Fifth Circuit affirmed dismissal of all claims and held, most importantly, that it would reject the constructive-presence doctrine as a means to satisfy statutory physical-presence requirements for citizenship transmission under 8 U.S.C. § 1401 and its predecessors. Because Plaintiffs could not meet the statutory requirements, they were not U.S. citizens. That determination cascaded into jurisdictional consequences:

  • Damages claims were barred by 8 U.S.C. § 1252(g) (jurisdiction-stripping for claims arising from commencing proceedings, adjudicating cases, or executing removal orders).
  • Declaratory judgment claims under 8 U.S.C. § 1503(a) were dismissed for failure to exhaust administrative remedies, which Fifth Circuit precedent treats as jurisdictional.
  • APA claims failed for lack of final agency action reviewable under 5 U.S.C. §§ 704, 706.
  • Habeas relief under 28 U.S.C. § 2255 failed because the plaintiff was not “in custody”.
  • Due process claims were forfeited due to inadequate briefing.

The court also admonished Plaintiffs’ counsel for significant citation and record defects, including quoting language the court could not locate in Ng Fung Ho v. White, misidentifying Doe v. McAleenan as a Fourth Circuit case though it was Seventh Circuit, and misattributing a quote to Afroyim v. Rusk that in fact came from Perez v. Brownell.

Finally, the panel clarified disposition: it affirmed dismissal without prejudice in Guerra-Quezada’s case, and modified Guerra-Vasquez’s judgment to be without prejudice as well, because dismissals for lack of jurisdiction must be without prejudice.

3. Analysis

3.1. Precedents Cited

A. Citizenship transmission is governed by the statute in effect at birth

The court relied on Iracheta v. Holder for the foundational rule: “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.” That rule fixed the governing statutory frameworks:

  • For Guerra-Vasquez (born 1962): the 1952 INA physical-presence requirement—ten years’ residence, five after age 14 (Immigration and Nationality Act of 1952, § 301(a)(7), codified at 8 U.S.C. § 1401(a)(7) (as amended)).
  • For Guerra-Quezada (born 1993): 8 U.S.C. § 1401(g)—five years’ physical presence, two after age 14.

B. The constructive-presence doctrine and the court’s rejection

Plaintiffs’ theory depended on an administrative doctrine articulated in Matter of Navarrete, which suggested certain physical-presence-like requirements could be treated as satisfied when “physical presence [was] prevented by circumstances beyond the individual's control, or by reliance upon erroneous information received from a United States official.”

Judge Ho’s concurrence traces the doctrine’s lineage to additional BIA decisions: Matter of Farley and Matter of Yanez-Carrillo. But the panel emphasized that no circuit has adopted constructive presence for citizenship transmission and several have rejected it in that context, citing: Runnett v. Shultz, Drozd v. INS, Tullius v. Albright, and Madar v. USCIS.

The Fifth Circuit aligned itself with those decisions and held it would not rewrite Congress’s physical-presence requirements through a judicial exception.

C. Congress sets naturalization rules; courts cannot confer citizenship by equity

The concurrence anchored the result in separation of powers and Supreme Court doctrine:

  • Rogers v. Bellei: Congress may decline to allow transmission of citizenship by descent and may prescribe residence/physical presence as a condition.
  • I.N.S. v. Pangilinan: courts cannot confer citizenship through estoppel or equitable powers contrary to statutory limits.

The concurrence further reasoned that Congress has enacted specific physical-presence exceptions (e.g., certain government service abroad, service in the Armed Forces), and that the presence of those enumerated exceptions cuts against creating an additional judicial exception—echoing the logic emphasized in Madar v. USCIS (quoting Tullius v. Albright).

D. Jurisdiction stripping, exhaustion, and procedural doctrines

  • 8 U.S.C. § 1252(g): For the damages claims, the panel relied on Fifth Circuit authority applying § 1252(g) broadly to claims that are, in substance, challenges to removal-related decisions, including Duron v. Johnson and Humphries v. Various Fed. USINS Emps..
  • Forfeiture for inadequate briefing: The panel relied on Smith v. Sch. Bd. of Concordia Par. to hold Plaintiffs forfeited key jurisdictional arguments by failing to brief them; and on United States v. Scroggins to deem due process arguments forfeited for defective citations and lack of record support.
  • 8 U.S.C. § 1503(a): The exhaustion requirement drew on Rios-Valenzuela v. DHS, which Fifth Circuit precedent treats as jurisdictional, while noting—without deciding—possible relevance of Villegas v. Noem and Santos-Zacaria v. Garland regarding claims-processing rules.
  • APA “final agency action”: The panel relied on Louisiana v. U.S. Army Corps of Eng'rs for the proposition that final agency action is a jurisdictional prerequisite under the APA.
  • Issue preservation: The panel refused to consider a new “arbitrary and capricious” argument first raised on appeal, citing Harris v. FedEx Corp. Servs., Inc..
  • Habeas “in custody”: The court applied Maleng v. Cook to dismiss the § 2255 claim for lack of custody.

E. Briefing integrity and sanctions framework

The panel’s discussion of inaccurate and misattributed citations highlighted the policing function of briefing rules: Fed. R. App. P. 28, Fifth Circuit record-citation requirements (5th Cir. R. 28.2.2), and attorney discipline authority under Fed. R. App. P. 46(c). The court also referenced Garces v. Hernandez regarding potential additional rule violations and sanctions implications when fabricated authorities are cited.

3.2. Legal Reasoning

A. The core holding: no constructive presence in transmission cases

The panel treated the constructive-presence doctrine as an attempt to judicially “revise the statutory requirements” of physical presence/residence in the transmission statutes. It rejected that request on textual and structural grounds:

  • The statutory language sets objective physical-presence thresholds; courts are not authorized to treat those as satisfied based on equitable narratives about border denials or “systemic barriers.”
  • Congress has already created limited exceptions, underscoring that any additional exceptions must come from Congress, not courts.
  • Sister circuits have rejected the doctrine in the transmission context, and the Fifth Circuit expressly joined that consensus.

Once constructive presence was rejected, Plaintiffs’ citizenship theory failed at the threshold, and the panel could treat them as “aliens” for purposes of subsequent jurisdictional analysis.

B. Jurisdictional dominoes

The court then applied a sequence of jurisdictional gates:

  • § 1252(g) stripped jurisdiction over damages claims tied to commencing proceedings/adjudicating cases/executing removal orders; the court characterized surviving non-forfeited tort theories as “repackaged challenges” to those discrete actions.
  • § 1503(a) claims failed because neither plaintiff demonstrated exhaustion; ongoing cancellation proceedings for Guerra-Quezada reinforced the point that administrative processes were not complete.
  • APA claims failed for lack of final agency action and lack of an “action made reviewable by statute.”
  • § 2255 failed because custody is jurisdictional in habeas; the asserted “wrongful conviction” consequences were insufficient absent custody, and no collateral consequences argument was raised.

C. The concurrence’s separation-of-powers emphasis

Judge Ho’s concurrence framed the constructive-presence request as a separation-of-powers violation: Article I assigns Congress the naturalization power, and courts cannot award citizenship outside statutory bounds. He highlighted Congress’s enumerated exceptions under 8 U.S.C. § 1401(g) and prior law, and he drew broader connections to national security and political-branch primacy, citing, among others, Trump v. Barbara, United States v. Wong Kim Ark, and Johnson v. Eisentrager, as well as Fifth Circuit decisions United States v. Abbott, United States v. Texas, and W.M.M. v. Trump. Whether or not one accepts the concurrence’s broader national-security discussion, its legal pivot is narrow and conventional: courts cannot create extra-statutory exceptions to citizenship statutes.

3.3. Impact

The opinion’s principal precedential effect is the Fifth Circuit’s explicit adoption of a rule already embraced by other circuits: constructive presence cannot be used to satisfy statutory physical-presence requirements for transmitting U.S. citizenship. Practical consequences include:

  • Derivative-citizenship litigation constraint: Claimants in the Fifth Circuit cannot salvage transmission claims by alleging wrongful border denial, misinformation, or “circumstances beyond control” unless Congress has codified an applicable exception.
  • Jurisdictional leverage for removal-related suits: By resolving citizenship adversely (and rejecting constructive presence), the court makes it easier to apply 8 U.S.C. § 1252(g) against damages claims framed as tort or constitutional claims but substantively targeting removal actions.
  • Administrative sequencing reinforced: The § 1503(a) exhaustion discussion, coupled with the APA final-agency-action holding, encourages litigants to complete administrative processes (including certificate cancellation proceedings) before seeking federal declaratory or APA relief.
  • Briefing discipline signal: The court’s detailed criticism of fabricated or inaccurate citations raises the salience of sanctions risks and attorney discipline exposure under Fed. R. App. P. 46(c) and related rules.

4. Complex Concepts Simplified

  • “Citizenship transmission”: When a child is born abroad, Congress sometimes allows a U.S. citizen parent to transmit citizenship, but only if specific statutory conditions (notably physical presence in the U.S.) are met.
  • “Physical presence requirement”: A numeric, time-based requirement—e.g., “five years,” “ten years,” “two years after age 14”—measured by actual time spent in the United States, subject only to exceptions Congress wrote into the statute.
  • “Constructive presence”: A proposed legal fiction that would treat someone as having been physically present in the U.S. even if they were not, based on equitable circumstances (e.g., wrongful denial of entry). The Fifth Circuit rejected using this fiction to satisfy transmission statutes.
  • “Jurisdiction”: The court’s power to hear a case. If Congress removes jurisdiction (as in 8 U.S.C. § 1252(g)) or if statutory prerequisites are unmet (exhaustion; final agency action; custody), the court must dismiss without deciding the merits.
  • “Exhaustion”: Completing required administrative steps before suing. Here, the court held § 1503(a) declaratory actions require administrative exhaustion.
  • “Final agency action” (APA): Under the APA, courts generally review only agency actions that are final and have legal consequences, not intermediate or ongoing processes.
  • “In custody” (habeas): Habeas relief under 28 U.S.C. § 2255 is available only if the petitioner is in custody under the conviction being challenged; being free but experiencing lingering consequences typically does not satisfy custody without more.
  • “Forfeiture”: Losing an argument by failing to properly present it—e.g., inadequate briefing, no record citations, or defective legal citations.

5. Conclusion

Guerra Quezada v. United States establishes a clear Fifth Circuit rule: courts will not recognize “constructive presence” to satisfy Congress’s physical-presence requirements for citizenship transmission under 8 U.S.C. § 1401 and predecessor statutes. The decision reinforces Congress’s exclusive authority over the terms of citizenship and treats equitable pleas—such as alleged wrongful border exclusion—as insufficient to rewrite statutory thresholds.

The case also serves as a procedural roadmap: removal-adjacent damages claims face § 1252(g) barriers; declaratory citizenship claims under § 1503(a) require exhaustion; APA review demands final agency action; habeas requires custody; and inadequate briefing can forfeit constitutional claims. Finally, the court’s admonition regarding inaccurate citations underscores that appellate advocacy is constrained by strict duties of candor and record support.