An excerpt from Friday's concurrence in Guerra Quezada v. U.S., by Fifth Circuit Judge James Ho:
The Constitution vests Congress—not the judiciary—with the power to "establish an uniform Rule of Naturalization." And that basic principle dictates the correct result in this case. Federal courts may not confer U.S. citizenship on any individual who fails to comply with all of the conditions and requirements set forth in our naturalization laws—and that includes the requirement of physical presence in the United States.
Yet that's precisely what Plaintiffs [who were born outside the U.S. -EV] urge us to do here: They ask us to grant them citizenship, despite the fact that they plainly fail to comply with the physical presence requirement.
Plaintiffs theorize that they're exempt from the physical presence requirement, because the ancestor from whom they claim citizenship was "wrongly turned away at the border" due to "systemic barriers." They invoke a doctrine of constructive presence, based on a series of atextual rulings from the Board of Immigration Appeals.
But the constructive presence doctrine plainly conflicts with the governing statutory text. A number of our sister circuits have so held. And I'm grateful that our court today has agreed to so hold as well….
Under the Constitution, Congress may choose "not to grant a United States citizen the right to transmit citizenship by descent." Rogers v. Bellei (1971). It may also "prescribe a period of residence in the United States as a condition precedent."
And federal courts may not alter the conditions set by Congress. "Neither by application of the doctrine of estoppel, nor by invocation of equitable powers, nor by any other means does a court have the power to confer citizenship in violation of these limitations."
These principles doom Plaintiffs' claim of citizenship. Because Congress has made amply clear which individuals are exempt from the physical presence requirements enumerated in 8 U.S.C. § 1401. And it is telling—and binding on federal courts—that Congress has declined to do so under the circumstances presented here.
Federal law, for example, has long 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." And Congress has enacted additional exceptions over time. See 8 U.S.C. § 1401(g) (providing exceptions for those working with the United States Government abroad, those working for certain international organizations, and for spouses and dependent children of those who qualify for these exceptions)…. As our sister circuits have observed, the existence of other exceptions to the physical presence requirement "undermines the argument that this [c]ourt should add [another] 'circumstances beyond control' exception." …
Plaintiffs nevertheless ask us to override U.S. law and grant them citizenship because Executive Branch officials "wrongly turned away [their ancestor] at the border" due to "systemic barriers."
But that misunderstands the limited role of the judiciary. Respect for the political branches commands us to accept their judgments about who shall be offered the profound privilege of United States citizenship.
Throughout our history, the American people have welcomed countless foreigners who seek to come to our shores to pursue the privileges of U.S. citizenship. I am one of them. I was not born a United States citizen, but I thank God every day that I will someday die a United States citizen.
But the generosity of the American people is a matter of political discretion—not duty. "I cannot imagine how enormously different (and considerably worse, I am sure) my life would have been had I not been granted resident alien status in America." And that's the point: It's a grant, not a guarantee. I will never forget that it was "my exquisitely good fortune"—not some right I could force upon the American people over their wishes—"that I was admitted into this country as an alien—and later naturalized as a citizen." …
"United States citizenship is one of the greatest privileges this world has ever known." And "as with anything of great value, the privilege of citizenship must be vigorously protected." That is precisely what we do today….
