Judge Porter Issues His First Precedential Opinion

Madar v. Unites States Citizenship and Immigration Services, ___ F.3d ___ (3d Cir. 2019). Having been confirmed by the Senate as the newest member of the Third Circuit in October 2018, Judge Porter today issued his first precedential opinion. In short, the issue was whether plaintiff, who was born outside the United States, was entitled to claim United States citizenship because his father was a citizen, and his father transmitted his citizenship to plaintiff. Applying de novo review of the legal issue involved, Judge Porter affirmed the ruling of the District Court that plaintiff was not a citizen.

The Immigration and Nationality Act of 1952, 8 U.S.C. §1401, addressed the situation here. That statute provides “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 ….” The statute contains exception for government employment and service in the armed forces.

It was questionable whether plaintiff’s father was a citizen, since he never lived in the United States. Plaintiff argued that the doctrine of “constructive physical presence” overcame that hurdle, allowing his father to claim citizenship. But even if constructive physical presence applied to plaintiff’s father, there were no grounds to apply that doctrine further to permit transmission of plaintiff’s father’s citizenship to plaintiff. Judge Porter observed that “[o]ther courts of appeals have uniformly rejected ex-tending the constructive physical presence doctrine to transmission of citizenship,” and the panel found that reasoning persuasive.

Judge Porter also stated that the plain language of the 1952 Act precluded plaintiff’s claim. Plaintiff argued for an equitable or hardship exception to the statute based on his particular circumstance. But Judge Porter ruled that since the statute contained two exceptions, but not the one that plaintiff sought, the courts could not create and apply an additional exception.

This was a short, unanimous opinion on a relatively straightforward issue of statutory interpretation, of a type that first published opinions often are. Now that he has gotten his feet wet, Judge Porter doubtless will move on to more challenging opinions going forward.