Jozef R. Madar v. United States Citizenship and Immigration Services

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 circumstances prevented the foreignborn

individual from complying with the statute. But while equity

may allow someone to retain citizenship, it has only supported

transmitting 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 declaration 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 requires a brief journey through the Madar family

tree.

4

Madar’s paternal grandmother, Julianne Cikovsky, was

born in 1906 in Youngstown, Ohio. As she entered her teenage

years, she left the United States to settle in Czechoslovakia.

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 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.

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II

The District Court had jurisdiction under 28 U.S.C.

§ 2241. We have appellate jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a). “[W]e review a district court’s legal conclusions

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-ofcitizenship

question 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 reasons.

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.

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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 Czechoslovakia

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

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: 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 paragraph.



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)).

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In an earlier proceeding, Madar’s father admitted that

he failed to satisfy these physical presence requirements, as he

lived in Czechoslovakia—and after its dissolution, Slovakia—

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 extending 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 assumption

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 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

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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 interpretive 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 citizen’s consent,” they may find “constructive

residence in order to preserve an individual’s retention

of citizenship.” Runnett, 901 F.2d at 784 (citing Rogers v.

Bellei, 401 U.S. 815, 821–22 (1971)). But this concern does

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 evolving-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 statutes 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’ requirement.” 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 “compel[s] a strict adherence to the

plain terms of the Act.” Drozd, 155 F.3d at 87.

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“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 citizenship through constructive physical

presence in the United States, and transmitted that citizenship

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 interpretation 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 physical presence necessary to

insure retention of her United States citizenship,” and that “period

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 Czechoslovakia 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 Tullius, 240 F.3d at 1321; Drozd, 155 F.3d at 88;

Runnett, 901 F.2d at 784 n.3. Thus, Navarrete does not apply

here for the same reason it did not apply in Tullius, Drozd, or

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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 doctrine

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 Navarrete, no United States official made

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 circumstances beyond the individual’s control, or

by reliance upon erroneous information received from a United

States official.”) (emphasis added). Despite that disjunctive,

Navarrete’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.

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an error that prevented Madar or his father from obtaining citizenship.

Thus, Madar’s equal protection argument fails the

first prong of this test.

* * * * *

The District Court properly determined that the constructive

physical presence doctrine 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.