                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               APRIL 25, 2005
                               No. 04-15017
                                                             THOMAS K. KAHN
                           Non-Argument Calendar
                                                                  CLERK
                         ________________________

                             BIA No. A23-161-215


JUAN JOSE REGO VALDES,
                                                              Petitioner,

      versus

U.S. ATTORNEY GENERAL,
                                                              Respondent.

                         _________________________

                       Petition for Review of an Order of
                        the Board of Immigration Appeals
                        _________________________
                               (April 25, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Juan Jose Rego Valdes (“Valdes-Rego”), proceeding pro se, seeks review of

the Board of Immigration Appeals’s (“BIA’s”) August 31, 2004, order affirming

the immigration judge’s (“IJ’s”) decision that Valdes-Rego’s mother did not meet
the statutory prerequisites for transmitting her United States citizenship to Valdes-

Rego.1

       On appeal, Valdes-Rego argues that he is a United States citizen rather than

an alien. He also claims that the IJ’s refusal to apply the constructive physical

presence doctrine violated the Equal Protection clause. We note that although

Valdes-Rego was found deportable because of his criminal offenses and INA §

242(a)(2)(C) would normally limit our review, we retain jurisdiction to consider

the issues that Valdes-Rego has raised. See Brooks v. Ashcroft, 283 F.3d 1268,

1272 (11th Cir. 2002) (noting that we have jurisdiction to review the “threshold

issue of whether [p]etitioner is an alien.”).

I. Transmission of Citizenship

       Valdes-Rego first argues that case law indicates that an exception to the

INA’s physical presence requirement should be applied when a United States

official prevents an applicant from meeting those requirements. Valdes-Rego

argues that the “statute’s spirit” would be frustrated if his mother’s citizenship was

not transferred to him, because his mother repeatedly but unsuccessfully attempted

to register him as a foreign-born United States citizen.


       1
         Because Valdes-Rego’s immigration proceedings commenced after April 1, 1997, the
permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.
L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”), govern his petition for review.

                                               2
        The statute detailing judicial review of immigration decisions states that if

the court of appeals “finds from the pleadings and affidavits that no genuine issue

of material fact about the petitioner’s nationality is presented, the court shall

decide the nationality claim.” INA § 242(b)(5)(A), 8 U.S.C. § 1252(b)(5)(A).

        To determine Valdes-Rego’s citizenship, we look to the applicable law in

effect at the time of his birth. Tullius v. Albright, 240 F.3d 1317, 1320 (11th Cir.

2001). In 1970, when Valdes-Rego was born, 8 U.S.C. § 1401(a)(7) provided

that:

        [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 . . .

was a national and citizen of the United States. 8 U.S.C. § 1401(a)(7) (1970).2 In

addition, 8 U.S.C. § 1401(a)(7) explicitly sets forth two physical presence

requirement exceptions: (1) for a period of honorable service in the armed forces,

or (2) for employment with the United States government. Id.

        In Tullius, we considered a situation where an appellant sought declaratory

judgment of United States citizenship. 240 F.3d at 1318. In that case, the


        2
            This provision, as amended, is now codified at 8 U.S.C. § 1401(g).

                                                  3
appellant contended that his father had transmitted United States citizenship to

him, even though both parties agreed that the appellant’s father had not satisfied

the physical presence requirements set forth in the statute. Id. at 1319-20. The

appellant argued that a constructive physical presence doctrine should apply in

transmission cases when a citizen is prevented from satisfying the physical

presence requirement because of circumstances beyond his control. Id. at 1320.

We held, however, that “the plain meaning of 8 U.S.C. § 1401(a)(7) prevents this

interpretation.” Id. We reasoned that “the existence of . . . two articulated

exceptions to the physical presence requirements undermine[d] [the] appellant’s

argument that this Court should add a third ‘circumstances beyond control’

exception.” Id. at 1321.

      In the instant case, the record indicates that Valdes-Rego’s mother relocated

to Cuba in 1955, at the age of seven, and returned to the United States in 1980.

Accordingly, when Valdes-Rego was born in 1970, his mother had not satisfied

the physical presence requirement set forth in § 1401(a)(7). In drafting 8 U.S.C.

§ 1401(a)(7), Congress clearly intended to include two exceptions to the physical

presence requirement, to be applied when: (1) an individual serves in the armed

forces, and (2) an individual is employed by the United States government. See 8

U.S.C. § 1401(a)(7)(1970). The record contains no evidence suggesting that

                                          4
Valdes-Rego’s mother fell within either of these exceptions.

      Despite Valdes-Rego’s allegations, the record contains no objective

evidence suggesting that United States officials prevented his mother from

returning to the United States and fulfilling the physical presence requirement.

Moreover, even if he had submitted such evidence, the applicable version of the

statute does not explicitly provide for an exception for individuals who were

prevented from returning to the United States because of misconduct by a United

States official. See 8 U.S.C. § 1401(a)(7)(1970). Finally, we held that “the

doctrine of constructive physical presence does not apply to the physical presence

requirement for transmission of United States citizenship under 8 U.S.C.

§ 1401(a)(7).” See Tullius, 240 F.3d at 1321. Accordingly, we deny Valdes-

Rego’s petition as to this issue.

II. Equal Protection Claim

      Valdes-Rego next argues on appeal that our current case law, as set forth in

Tullius, violates the Equal Protection clause, as it sets forth a distinction that is

unrelated to any legitimate governmental interest. He maintains that because he

has been stripped of a fundamental right to citizenship, his claim should be

examined under a strict scrutiny standard. Further, Valdes-Rego claims that there

should be no distinction between the doctrines applied in citizenship transmission

                                            5
cases and in citizenship retention cases, and asserts that the application of the

constructive physical presence doctrine in retention cases but not in transmission

cases is completely arbitrary and unreasonable, and thus, does not pass muster

under an ordinary scrutiny standard. Furthermore, he contends, the distinction

does not pass muster under a strict scrutiny standard, as the distinction is not

necessary to promote a compelling governmental interest.

      We review constitutional challenges de novo. Lonyem v. U.S. Attorney

Gen., 352 F.3d 1338, 1341 (11th Cir. 2003). The Supreme Court stated in

Mathews v. Diaz, 426 U.S. 67, 82, 96 S. Ct. 1883, 1892 (1976), that “decisions

made by the Congress or the President in the area of immigration and

naturalization” are subject to “a narrow standard of review” that is equivalent to

rational basis scrutiny. Furthermore, we have noted that, “[b]ecause federal

authority over aliens is plenary, federal classifications that distinguish among

groups of aliens are subject to relaxed scrutiny under the rational basis standard of

review, and are valid unless ‘arbitrary or unreasonable.’” Fernandez-Bernal v.

U.S. Attorney Gen., 257 F.3d 1304, 1312 (11th Cir. 2001). We explained that,

“[a]ccording to the rational basis standard, such classifications ‘must be

reasonable, not arbitrary, and must rest upon some ground of difference having a

fair and substantial relation to the object of the legislation, so that all persons

                                            6
similarly circumstanced shall be treated alike.’” Id.

      Valdes-Rego’s claim that his equal protection rights have been violated

because the constructive physical presence doctrine does not apply in transmission

of citizenship cases must fail. There is a rational basis for Congress’s distinction

between situations where an individual seeks to retain their United States

citizenship and situations where citizenship is transferred to foreign-born children

of United States citizens. Accordingly, Valdes-Rego’s equal protection rights

were not violated by the IJ’s refusal to extend the doctrine of constructive physical

presence to cover situations arising under 8 U.S.C. § 1401(a)(7), and we,

therefore, deny Valdes-Rego’s petition as to this issue.

      PETITION DENIED.




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