PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              _______________

                   No. 18-1741
                 _______________

                JOZEF R. MADAR,
                          Appellant

                         v.

UNITED STATES CITIZENSHIP AND IMMIGRATION
                 SERVICES
              _______________

   On Appeal from the United States District Court
      for the Western District of Pennsylvania
      (District Court Civil No. 2-07-cv-01254)
       District Judge: Hon. David S. Cercone
                  _______________

    Submitted Under Third Circuit L.A.R. 34.1(a)
               on January 18, 2019

Before: GREENAWAY, JR., SHWARTZ, and PORTER,
               Circuit Judges.

           (Opinion filed: March 7, 2019)
                 _______________
Mark A. Goldstein
Goldstein & Associates
1125 Penn Avenue
3rd Floor
Pittsburgh, PA 15222

      Counsel for Plaintiff-Appellant

Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

Joseph H. Hunt
William C. Peachey
Sairah G. Saeed
Gisela A. Westwater
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20044

      Counsel for Defendant-Appellee
             _______________

         OPINION OF THE COURT
             _______________




                         2
PORTER, Circuit Judge.

        Our immigration laws have long required foreign-born
children of citizens to reside or be physically present in the
United States for some amount of time to retain citizenship. In
extraordinary cases, these retention requirements can be con-
structively satisfied if circumstances prevented the foreign-
born individual from complying with the statute. But while eq-
uity may allow someone to retain citizenship, it has only sup-
ported transmitting that retained citizenship to a descendant in
rare cases—typically, when a government error causes citizen-
ship to lapse.

        Here, we consider whether Jozef Madar is a citizen.
Madar argues that he is because his father constructively satis-
fied the statutory requirements for retaining citizenship and
transmitted this citizenship to Madar himself. Because Madar’s
father, even if he were a citizen, did not transmit citizenship
under a constructive physical presence theory, we will affirm
the District Court’s judgment.

                                I

        Madar was born in communist-ruled Czechoslovakia in
1964 and entered the United States in 1991. After overstaying
his visa, he settled in the Pittsburgh area. He has litigated his
legal status in the decades since his arrival. In this proceeding,
Madar seeks a declaration that he is a United States citizen be-
cause his late father, Jozef Madar, Sr., was a citizen, and his
father’s citizenship transmitted to him. Untangling this citizen-
ship question requires a brief journey through the Madar family
tree.




                                3
       Madar’s paternal grandmother, Julianne Cikovsky, was
born in 1906 in Youngstown, Ohio. As she entered her teenage
years, she left the United States to settle in Czechoslovakia.
She married there and gave birth to a son, Madar, Sr., in 1940.
Madar, Sr. lived in Czechoslovakia—and after its dissolution,
Slovakia—his entire life. Madar, Sr. never lived in the United
States. In the 1960s, Madar, Sr. married a non-United States
citizen in Czechoslovakia and had children. One child was the
petitioner, Madar.

        Madar, Sr. knew of his mother’s American birth, but he
did not know that this might entitle him to United States citi-
zenship. Madar, Sr. learned of this possibility through his son’s
immigration proceedings in the 1990s. In one proceeding,
Madar, Sr. swore in an affidavit that the political circumstances
of post-war Czechoslovakia would have made compliance with
retention requirements difficult, if not impossible. Madar, Sr.
observed that he would have had to reside in the United States
for at least some time, but the Czech communist government
would have prevented that—either by proscribing his emigra-
tion outright or making it so costly as to be practically impos-
sible.

        Madar sought a declaration from the District Court that
his father constructively retained United States citizenship and
transmitted that citizenship to him, making Madar ineligible
for removal. The District Court denied Madar’s request. It held
that even if Madar, Sr. had retained his citizenship under an
equitable theory that excused his non-compliance with statu-
tory physical presence requirements, Madar, Sr. did not trans-
mit that citizenship to his son. This appeal followed.




                               4
                               II

       The District Court had jurisdiction under 28 U.S.C.
§ 2241. We have appellate jurisdiction under 28 U.S.C.
§§ 1291 and 2253(a). “[W]e review a district court’s legal con-
clusions de novo.” United States v. Green, 

, 317
(3d Cir. 2018).

                               III

       Madar argues that his father was a United States citizen
(because his father retained his citizenship), so he is as well
(because his father transmitted that retained citizenship).
Madar grounds this claim on an administrative decision involv-
ing the constructive physical presence doctrine, Matter of Na-
varrete, 12 I. & N. Dec. 138 (BIA 1967). Madar contends that
Navarrete remains good law and controls the transmission-of-
citizenship question here. Madar also argues that the District
Court treated him differently than the petitioner in Navarrete,
violating his equal protection rights.

        Madar can be a citizen only if his father was. But even
assuming that Madar’s father retained his citizenship, he did
not transmit that citizenship to Madar for at least two reasons.
First, the applicable immigration statutes contained limited ex-
ceptions to the law’s physical presence requirements, and like
all other courts of appeals to consider this issue, we decline to
read broader equitable exceptions into the law. Second, Navar-
rete does not apply because no United States government error
interrupted citizenship retention and transmission.

       In determining whether Madar is a citizen, we look to
the statute in effect at the time of Madar’s birth. Runnett v.




                               5
Shultz, 

, 783 (9th Cir. 1990) (“The 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.”). Madar was born in Czechoslovakia
in 1964. Assuming that his father was a citizen at the time of
Madar’s birth, the Immigration and Nationality Act of 1952
controls Madar’s citizenship status. That law provided that sev-
eral categories of individuals “shall be nationals and citizens of
the United States at birth,” including:

       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 pe-
       riod or periods totaling not less than ten years, at
       least five of which were after attaining the age of
       fourteen years: Provided, That any periods of
       honorable service in the Armed Forces of the
       United States by such citizen parent may be in-
       cluded in computing the physical presence re-
       quirements of this paragraph.

Immigration and Nationality Act of 1952, Pub. L. No. 82-414,
tit. III, ch. 1, § 301(a)(7), 66 Stat. 235 (codified at 8 U.S.C.
§ 1401(a)(7), codified as amended at 8 U.S.C. § 1401(g)) (the
“1952 Act”). By its plain terms, the 1952 Act imposed physical
presence requirements, but provided an exception for members
of the United States military. Congress later added a second
exception for “periods of employment with the United States
Government.” See Act of Nov. 6, 1966, Pub. L. No. 89-770, 80
Stat. 1322 (codified at 8 U.S.C. § 1401(a)(7)).




                                6
        In an earlier proceeding, Madar’s father admitted that
he failed to satisfy these physical presence requirements, as he
lived in Czechoslovakia—and after its dissolution, Slovakia—
his entire life. For Madar to have citizenship, we would have
to determine that Madar’s father was constructively present in
the United States, retained his citizenship, and transmitted that
citizenship to Madar. Other courts of appeals have uniformly
rejected extending the constructive physical presence doctrine
to transmission of citizenship, and the reasoning of those deci-
sions is instructive here.

        First, the plain meaning of the 1952 Act precludes
Madar’s transmittal argument. “Statutory construction must
begin with the language employed by Congress and the as-
sumption that the ordinary meaning of that language accurately
expresses the legislative purpose.” Gross v. FBL Fin. Servs.,

, 175–76 (2009) (quoting Engine Mfrs. Ass’n v. S.
Coast Air Quality Mgmt. Dist., 

, 252 (2004)). Un-
der the interpretive canon expressio unius est exclusio alterius,
we presume that “[t]he expression of one thing implies the ex-
clusion of others.” Antonin Scalia & Bryan A. Garner, Reading
Law 107 (2012). The 1952 Act, as amended, identifies just two
exceptions to the physical presence requirement: for service in
the armed forces or government employment. “[T]he existence
of these two articulated exceptions to the physical presence re-
quirements undermines [the] argument that this Court should
add a third ‘circumstances beyond control’ exception.” Tullius
v. Albright, 

, 1321 (11th Cir. 2001); see also
Drozd v. I.N.S., 

, 86 (2d Cir. 1998) (noting that
Congress “expressly specified certain exceptions from the
physical presence requirement” and declining to read addi-
tional exceptions into the statute). Like all other circuits to ad-
dress the issue, we decline to venture beyond the statutory text




                                7
to import Madar’s proposed hardship exception.1 Such an ap-
proach would cut against the statute’s plain language, case law
construing the statute, and basic interpretive principles.

        In declining to extend the constructive physical pres-
ence doctrine, courts have noted that retention cases and trans-
mission cases involve different interests. Because “courts have
traditionally hesitated to find that Congress could take away
citizenship without the citizen’s consent,” they may find “con-
structive residence in order to preserve an individual’s reten-
tion of citizenship.” 

(citing Rogers v.
Bellei, 

, 821–22 (1971)). But this concern does


       1
         Madar tries to escape this plain statutory language by
arguing that Congress has generally loosened statutory resi-
dency or physical presence requirements over the years, and
that we should join this trend to decide the citizenship question
in his favor. This evolving-standards argument fails as both an
interpretive and historical matter. For starters, Madar con-
cedes—as he must—that the 1952 Act applies. Later-enacted
immigration statutes irrelevant to the transmission issue cannot
disturb the clear language of the 1952 Act. And as an empirical
matter, the history of the immigration laws hardly shows a lin-
ear trend toward liberalizing residency or physical presence re-
quirements. In fact, the 1952 Act itself represented a tightening
of requirements, as “Congress enacted the continuous-physi-
cal-presence requirement in 1952 in response to abuses of the
more lenient ‘residence’ requirement.” I.N.S. v. Phinpathya,

, 198 (1984) (Brennan, J., concurring). Besides
undermining Madar’s evolving-standards argument, this
change in language further “compel[s] a strict adherence to the
plain terms of the Act.” 

.




                               8
“not exist for the transmission of citizenship where citizenship
is simply not being conferred.” 

Madar’s contention that Navarrete supports his
transmission-of-citizenship argument, he ignores that the deci-
sion turned on a government error. In Navarrete, children born
in Mexico claimed that their mother was a United States citi-
zen, retained that citizenship through constructive physical
presence in the United States, and transmitted that citizenship
to them. 12 I. & N. Dec. at 142. The Board of Immigration
Appeals agreed. 

mother did not actually fulfill
the physical presence requirements of the 1952 Act, that was
only because she “was prevented, in September 1954, from
coming to the United States to reside permanently, by a United
States official acting under an interpretation of the law later
conceded by the Government to be erroneous.” 

United States official not made this mistake, the mother could
“have completed the period of physical presence necessary to
insure retention of her United States citizenship,” and that “pe-
riod of physical presence would have qualified her to pass on
citizenship at birth to” her children. 

contrast, the United States government made
no mistake. Madar’s father was unable to retain citizenship be-
cause the political leadership of Soviet-era Czechoslovakia al-
legedly would have thwarted any attempt to live in the United
States. Madar does not point to any United States government
misconduct that caused his father’s citizenship to lapse, and
courts have interpreted Navarrete to be limited to just that sce-
nario. See 

; 

;

n.3. Thus, Navarrete does not apply
here for the same reason it did not apply in Tullius, Drozd, or




                               9
Runnett: No government error prevented Madar’s father from
retaining citizenship.2

        Navarrete’s inapplicability also forecloses Madar’s
equal protection argument. In short, Madar claims that because
Navarrete applied the constructive physical presence doctrine
to citizenship transmittal, but the District Court declined to do
so here, the District Court violated his equal protection rights.
See U.S. Const. amend XIV, § 1 (“No State shall … deny to
any person within its jurisdiction the equal protection of the
laws.”). Madar appears to raise a class-of-one equal protection
claim. We have explained that “[t]o state a claim under a class
of one theory, ‘a plaintiff must allege that (1) the defendant
treated him differently from others similarly situated, (2) the
defendant did so intentionally, and (3) there was no rational
basis for the difference in treatment.’” Newark Cab Ass’n v.
City of Newark, 

, 156 (3d Cir. 2018) (quoting Hill
v. Borough of Kutztown, 

, 239 (3d Cir. 2006)).

       Madar was not treated differently than anyone similarly
situated. Unlike in Navarrete, no United States official made


       2
         To be fair, Navarrete suggests in dicta that it could
apply more broadly. See 12 I. & N. Dec. at 142 (“Constructive
residence and physical presence … normally come into play in
situations where actual residence or physical presence were
prevented by circumstances beyond the individual’s control, or
by reliance upon erroneous information received from a United
States official.”) (emphasis added). Despite that disjunctive,
Navarrete’s holding was based on a United States “official act-
ing under an interpretation of the law later conceded by the
Government to be erroneous.” 

error that prevented Madar or his father from obtaining cit-
izenship. Thus, Madar’s equal protection argument fails the
first prong of this test.

                           *****

        The District Court properly determined that the con-
structive physical presence doctrine does not apply here to
transmit United States citizenship under the 1952 Act. So we
will affirm the District Court’s denial of Madar’s claim for de-
claratory relief under 28 U.S.C. § 2241.




                              11