                                                                                PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                          FILED
                                                                    U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                       No. 00-11616                        FEB 06 2001
                                                                       THOMAS K. KAHN
                                                                             CLERK

                           D.C. Docket No. 99-00300-CV-SH

RAIMOND N. TULLIUS,

                                                                        Plaintiff-Appellant,

                                           versus

MADELEINE ALBRIGHT,


                                                                       Defendant-Appellee.


                      Appeal from the United States District Court
                          for the Southern District of Florida

                                    (February 6, 2001)


Before ANDERSON, Chief Judge, CARNES, Circuit Judge, and NANGLE*, District
Judge.

NANGLE, District Judge:

____________________
*Honorable John F. Nangle, U.S. District Judge for the Eastern District of Missouri, sitting by
designation.
      Raimond N. Tullius appeals from the final judgment entered in the District

Court for the Southern District of Florida, granting summary judgment in favor of the

defendant. In granting the motion for summary judgment, the district court found 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)

(1973). See R:37 at 1; R:35 at 2. Appellant contends that this finding was error. We

affirm the district court’s grant of summary judgment in favor of the

defendant/appellee.

                                  I. Background

      On February 1, 1999, appellant filed an action for declaratory judgment of

United States citizenship under 8 U.S.C. § 1503(a). Appellant contends that his father

was a United States citizen at the time of appellant’s birth and transmitted that

citizenship to appellant at birth, under 8 U.S.C. § 1401(a)(7) (1973) (presently

codified as amended at 8 U.S.C. § 1401(g)).

      Appellant’s grandmother, Barbara Lukas, was born on October 18, 1915 in

Cincinnati, Ohio, but subsequently moved to Romania at the age of five. Appellant’s

father, Nikolaus Tullius (“Nick”), was born in Romania on October 23, 1935. Nick

acquired United States citizenship at birth as a result of his mother’s United States

citizenship. In January 1945, when Nick was nine years old, his mother Barbara was


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deported to a Soviet forced-labor camp, where she died the same year. Due to travel

restrictions imposed by the Romanian government, appellant’s father Nick was unable

to leave Romania until 1961, when he renounced his Romanian citizenship and

emigrated to Canada. Nick became a naturalized citizen of Canada on April 13, 1966.

Appellant Raimond (“Ray”) was born in Canada on October 5, 1973.

      In August 1997, appellant’s father Nick learned for the first time of his mother’s

United States citizenship and his own potential claim for United States citizenship.

Consequently, Nick submitted an application for a United States passport in December

1997. On April 17, 1998, Nick’s application for citizenship was approved, but only

after Nick executed an oath pursuant to Section 324(d)(1) of the Immigration and

Nationality Act, 8 U.S.C. § 1435(d)(1). The oath signed by Nick states that it is “for

use under Section 324(d)(1) of the Immigration and Nationality Act by a person who

was a citizen of the United States at birth and lost such citizenship for failure to meet

the physical presence retention requirements under Section 301(b)INA.” R:20 at Ex.

B. Nick’s oath contained the following statements:

             I solemnly swear that I have performed no voluntary act

             which would cause me to be within any of the provisions of

             Section 313 of the Immigration and Nationality Act relating

             to persons opposed to government or law or who favor


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             totalitarian forms of government. I hereby take the Oath of

             Allegiance to the United States as prescribed by Section

             337(a) of the same act. I understand that taking the oath

             restores U.S. citizenship as of the date of the oath and is not

             retroactive to the date of failure to retain.



Id. (emphasis added). Nick’s United States citizenship was then reinstated, and he

was awarded a passport as a United States citizen born abroad to a United States

parent. R:3 at 4-5.

      On September 24, 1998, appellant Ray, a tax attorney in Miami, applied for a

United States passport. His application was denied on January 4 ,1999, and appellant

then filed this declaratory judgment action on February 1, 1999. R:1 at 1-2. On

December 17, 1999, the appellee filed a motion for summary judgment, arguing that

appellant’s father did not transmit citizenship to appellant at birth because his father’s

citizenship had lapsed for lack of physical presence in the United States during the

period of time required under 8 U.S.C. § 1401(b) (1952). R:20 at 6. On January 10,

2000, appellant filed a cross-motion for summary judgment, arguing that he is entitled

to United States citizenship because his father satisfied both the citizenship retention

requirement and the citizenship transmission requirement under the constructive


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physical presence doctrine. R:24 at 5-9. The district court granted the appellee’s

motion for summary judgment and denied appellant’s cross motion. R:37 at 1-2; R:35

at 2.

                               II. Standard of Review

        We review the district court’s grant of summary judgment de novo, reviewing

all facts and reasonable inferences in the light most favorable to the nonmoving party,

and applying the same standard as the district court. Rodgers v. Singletary, 142 F.3d

1252, 1253 (11th Cir. 1998); Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th

Cir. 1995).    A grant of summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c).

“If the record presents factual issues, the court must not decide them; it must deny the

motion and proceed to trial.” Clemons v. Dougherty County, 684 F.2d 1365, 1369

(11th Cir. 1982).

                                    III. Analysis

        Appellant claims that his father, who was a United States citizen at birth,

transmitted citizenship to appellant under the doctrine of constructive physical

presence. Specifically, appellant argues that the doctrine should apply to transmission


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cases when the citizen is prevented from satisfying the physical presence requirement

due to circumstances beyond his control. This Court disagrees and adopts the

reasoning of the Second Circuit set forth in Drozd v. I.N.S., 155 F.3d 81, 85-88 (2d

Cir. 1998) (holding that the doctrine of constructive physical presence does not apply

to the physical presence requirement for transmission of citizenship under 8 U.S.C.

§ 1401(a)(7)).

      In order to determine appellant’s citizenship status, the Court must look to the

applicable law in effect at the time of appellant’s birth. Runnett v. Shultz, 901 F.2d

782, 783 (9th Cir. 1990) (holding that “[t]he 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”). In 1973, when appellant was born,

Section 301(a) of the 1952 Immigration and Nationality Act, 8 U.S.C. § 1401(a)

provided:

      (a) The following shall be nationals and citizens of the United States at birth:

             (7) 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.




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8 U.S.C. § 1401(a)(7) (1973).1

       The facts establish that appellant’s father did not satisfy the physical presence

requirement set forth in 8 U.S.C. § 1401(a)(7). The parties agree that Nick was not

factually physically present in the United States during the time period required by the

statute. Appellant argues, however, that even though his father was not physically

present in the United States during the requisite period, the doctrine of constructive

physical presence should apply in this case and should permit the transmission of

citizenship from appellant’s father to appellant. This Court agrees with the Second

Circuit, however, which found that the plain meaning of 8 U.S.C. § 1401(a)(7)

prevents this interpretation. See Drozd, 155 F.3d at 86-87; see also Runnett v.

Schultz, 901 F.2d 782, 784 (9th Cir. 1989) (discussing the policy distinctions between

citizenship retention cases and citizenship transmission cases).

       In Drozd, the Second Circuit focused on the statutory language of 8 U.S.C. §

1401(a)(7) and discussed the two specific exceptions provided in the statute. Drozd,

155 F.3d at 86. One specific exception to the physical presence requirement in the

statute was for “any periods of honorable service in the Armed Forces of the United

States . . . .” Id.; see also 8 U.S.C. § 1401(a)(7) (now codified at 8 U.S.C. § 1401(g)).

       1
         In 1986, Congress amended the statute, replacing the phrase “ten years, at least five” with
“five years, at least two.” Pub. L. No. 99-653, § 12, 100 Stat. 3655 (1986), now codified at 8 U.S.C.
§ 1401(g). Even with this modification, appellant’s father still failed to satisfy the physical presence
requirement for transmission of citizenship under 8 U.S.C. § 1401(a)(7) (1973).

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In 1966, Congress amended the 1952 Immigration and Nationality Act and added

another exception to the physical presence requirement, allowing an exception for

“periods of employment with the United States Government . . . .” 8 U.S.C. §

1401(a)(7); Act of Nov. 6, 1966, Pub. L. No. 89-770, 80 Stat. 1322.

      As found by the Second Circuit in Drozd, the existence of these two articulated

exceptions to the physical presence requirements undermines appellant’s argument

that this Court should add a third “circumstances beyond control” exception. See

Drozd, 155 F.3d at 86. Although the Court is sympathetic to appellant’s plight, as

well as to his family history, this new exception “cannot be accommodated ‘in the

absence of evidence of a contrary legislative intent.’” Id. (quoting United States v.

Smith, 499 U.S. 160, 167 (1991)).

      The Second Circuit also noted that the 1952 Immigration and Nationality Act

replaced the “residence” requirement, found in the earlier Nationality Act of 1940,

with a requirement of “physical presence” for transmission of citizenship to a child

born abroad. See Drozd, 155 F.3d at 87 (citing to the Nationality Act of 1940, ch.

876, § 201(g), 54 Stat. 1137, 1139). The change in language “compel[s] a strict

adherence to the plain terms of the Act.” Id. Finally, in the instant case as in Drozd,

there is no allegation here that appellant’s father was wrongfully or erroneously

prevented by United States officials from entering the United States, as was the case


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in Matter of Navarrete, 12 I. & N. Dec. 138, 142 (BIA 1967) (distinguished in Drozd,

155 F.3d at 88). Thus, it is appropriate for this Circuit to follow the statute’s plain

language, as well as the reasoning adopted by the Second Circuit, and affirm the

district court’s grant of summary judgment for the appellee.

                                  IV. Conclusion

      Because the district court properly found 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) (1973), we

AFFIRM the grant of summary judgment in favor of the appellee.




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