     Case: 11-50033     Document: 00511676033         Page: 1     Date Filed: 11/25/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        November 25, 2011

                                     No. 11-50033                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JOSE ANGEL DOMINGUEZ-GONZALEZ,

                                                   Plaintiff-Appellant
v.

HILLARY RODHAM CLINTON, United States Secretary of State,

                                                   Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CV-473


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Jose Angel Dominguez-Gonzales appeals the district
court’s order dismissing his case for failure to state a claim upon which relief can
be granted. Finding no error, we affirm the district court’s judgment.
                                              I.
        Appellant is a resident of Nuevo Laredo, Mexico, and was born in Mexico
on October 9, 1962, to an alien mother. Appellant applied for a United States


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-50033

passport. Appellant’s passport petition was denied by the State Department, by
letter dated April 24, 2006, on the ground that Appellant is not a United States
citizen.
      On June 4, 2010, Appellant brought this action seeking a declaration that
he is a United States citizen. Appellant’s complaint alleges that his father, Jose
Angel Dominguez, is a United States citizen whose citizenship was deemed
relinquished in 1956 on the basis of his one-year employment with the municipal
government of Torreon, Mexico. By letter dated November 23, 2003, the State
Department reinstated Appellant’s father’s citizenship. Appellant thus asserts
derivative citizenship via his father’s citizenship.
                                        II.
      We review de novo a district court’s dismissal under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. Sullivan v. Leor
Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010). In reviewing the dismissal
order, we take the well-pled factual allegations of the complaint as true and
view them in the light most favorable to the plaintiff. In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Factual allegations of the
complaint must be enough to raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
                                       III.
      We begin by examining the derivative citizenship provisions of the
Immigration and Nationality Act (“INA”). The parties agree that the law in
effect at the time of Appellant’s birth governs our analysis. See United States
v. Cervantes-Nava, 281 F.3d 501, 503 (5th Cir. 2002). The law at the time of
Appellant’s birth provided that a child born outside of the United States to an
alien parent and a United States citizen parent is a United States citizen if
his citizen parent was physically present in the United States for a period of



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                                  No. 11-50033

at least ten years prior to the child’s birth, at least five of which were after
the citizen parent’s fourteenth birthday. 8 U.S.C. § 1401(a)(7) (1952).
      Appellant concedes that his father did not satisfy the parental
residency requirement of the INA. Appellant therefore cannot acquire
derivative citizenship according to the plain language of the statute.
However, Appellant argues that the Government should be equitably
estopped from denying his citizenship because it rescinded his father’s
citizenship without his voluntary relinquishment thereof, and such measures
were ruled unconstitutional in Afroyim v. Rusk, 387 U.S. 253 (1967).
      Equitable relief is generally not available with respect to the conferral
of citizenship. “[T]he power to make someone a citizen of the United States
has not been conferred upon the federal courts, like mandamus or injunction,
as one of their generally applicable equitable powers.” I.N.S. v. Pangilinan,
486 U.S. 875, 883-84 (1988).
      “An alien who seeks political rights as a member of this Nation can
      rightfully obtain them only upon terms and conditions specified by
      Congress. Courts are without authority to sanction changes or
      modifications; their duty is rigidly to enforce the legislative will in
      respect of a matter so vital to the public welfare.”
Id. at 884 (quoting United States v. Ginsberg, 243 U.S. 472, 474 (1917)).
“Naturalization is available only as provided by Acts of Congress and, even
then, only in strict compliance with the terms of such acts.” Bustamante-
Barrera v. Gonzales, 447 F.3d 388, 394 (5th Cir. 2006) (internal quotation
marks and citations omitted). “[C]ourts cannot employ equitable remedies to
confer citizenship where the statutory requirements for citizenship are
unsatisfied . . . .” Mustanich v. Mukasey, 518 F.3d 1084, 1089 (9th Cir. 2008).
“[T]he alleged wrongfulness of the Government’s conduct does not create an
exception to the rule.” Id. A plaintiff “has the burden of proving that he
qualifies for naturalization, and he must do so in the face of the Supreme


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                                  No. 11-50033

Court’s mandate that we resolve all doubts in favor of the United States and
against those seeking citizenship.” Bustamante-Barrera, 447 F.3d at 394-95
(internal quotation marks and citation omitted).
      Appellant acknowledges this bar to his claim for equitable relief, but
insists that equitable estoppel should nevertheless remain available to him
because the Government’s revocation of his father’s citizenship was an
unconstitutional error. Appellant’s argument fails for a number of reasons.
      First, that the Government’s alleged error is unconstitutional does not
empower the courts to confer citizenship on someone purportedly wronged
thereby. For instance, in Cervantes-Nava, we rejected a defendant’s
challenge to his conviction for illegal reentry into the United States on the
ground that the residency requirements of the INA are unconstitutional. We
concluded that, even “assum[ing], arguendo, the unconstitutionality of the
derivative citizenship statutes[,] . . . [b]ecause the Constitution does not grant
Cervantes-Nava citizenship, [striking down the statute as unconstitutional]
still would leave him without any putative source of citizenship and would
not affect his status as an alien.” 281 F.3d at 504, 506.
      Additionally, Appellant’s chain of reasoning for the relief he seeks, a
declaration of citizenship, is as follows: because his father’s citizenship was
unconstitutionally rescinded, his father was unable to satisfy the residency
requirement as returning to the United States would have been unlawful, and
therefore, Appellant was wrongfully prevented by the Government from
obtaining derivative citizenship because of its unconstitutional actions
against his father. Appellant therefore seeks to challenge the Government’s
actions taken against his father by way of third-party standing.
      The presumption against third-party standing is a prudential limitation
which generally precludes federal courts from resolving controversies
regarding the rights of third persons not parties to the litigation. Nat’l Fed’n

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                                  No. 11-50033

of the Blind, Inc. v. Abbott, 647 F.3d 202 (5th Cir. 2011). There are three
factors to be considered when determining whether an assertion of third-
party standing is valid:
      (1) the litigant must have suffered an injury in fact, thus giving him
      or her a sufficiently concrete interest in the outcome of the issue in
      dispute; (2) the litigant must have a close relation to the third party;
      and, (3) there must exist some hindrance to the third party’s ability
      to protect his or her own interests.
Peterson v. Cain, 302 F.3d 508, 512 (5th Cir. 2002) (internal quotation marks
and citation omitted). Although the Appellant is a close relative of his father,
and has arguably been harmed by the denial of derivative citizenship, third-
party standing is not permitted because there is no indication from the
complaint that his father, while living, was hindered in the ability to protect
his own citizenship interests. See Terrell v. I.N.S., 157 F.3d 806, 809 (10th
Cir. 1998) (rejecting third-party standing of daughter challenging the
constitutionality of the INA’s provisions governing citizenship of out of
wedlock children as biased against fathers because “no hindrance to [her
father’s] participation has been demonstrated.”).
      Furthermore, even assuming that equitable relief is available in this
case, and even assuming that Appellant’s assertion of third-party standing is
valid, the allegations of the complaint are insufficient to support a claim of
equitable estoppel. “[T]o state a cause of action for estoppel against the
government, a private party must allege more than mere negligence, delay,
inaction, or failure to follow an internal agency guideline.” Fano v. O’Neill,
806 F.2d 1262, 1265 (5th Cir. 1987). Some “affirmative misconduct” must be
established. Id. at 1266. “Valid assertions of equitable estoppel against the
Government are rare indeed.” Moosa v. I.N.S., 171 F.3d 994, 1003 (5th Cir.
1999).



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                                        No. 11-50033

       Appellant’s purported claim to derivative citizenship relies on his
assertion that, but for the revocation of his father’s citizenship in 1956, his
father would have returned to the United States to complete a total of five
years’ residence after his father’s fourteenth birthday and prior to Appellant’s
birth in 1962. As there is no reference in the complaint that his father ever
attempted to restore his citizenship prior to 2003, or ever attempted to return
to the United States, Appellant’s argument would require speculation beyond
the four corners of the complaint.1
       Moreover, there is no allegation of governmental impropriety sufficient
to amount to affirmative misconduct, which is an exceedingly high standard
to meet. There is no suggestion that the Government’s policies were
implemented in bad faith, or with the purpose of depriving Appellant’s father
of a citizenship interest which Government officials knew or should have
known at the time he was entitled to. Accordingly, the allegations of the
complaint amount to a mere negligent error, which Appellant’s father made
no apparent effort prior to Appellant’s birth to rectify or challenge.
       All doubts with respect to citizenship are to be resolved in favor of the
United States. Accordingly, it is clear that, as a matter of law, Appellant’s
complaint fails to state a claim upon which relief can be granted.
                                              IV.
       For the foregoing reasons, we AFFIRM the district court’s judgment.




       1
         Although Appellant requested in his reply brief an opportunity to amend his
complaint so as to ameliorate any deficiencies therein, he did not challenge the district court’s
denial of his motion for leave to amend the complaint in his initial brief. Accordingly, the
argument is waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“This court will
not consider a claim raised for the first time in a reply brief.”).

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