Adel Dessouki v. Attorney General United States , 915 F.3d 964 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 17-3131 & 18-1510
_______________
ADEL DESSOUKI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
_______________
On Petition for Review of Decisions of the
United States Department of Justice
Board of Immigration Appeals
(A029-635-695)
Immigration Judge: Rosalind K. Malloy
_______________
No. 18-2110
_______________
ADEL DESSOUKI,
Appellant
v.
SECRETARY, UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; ATTORNEY GENERAL
UNITED STATES OF AMERICA; ACTING DIRECTOR
UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES; ACTING DISTRICT DIRECTOR UNITED
STATES CITIZENSHIP AND IMMIGRATION SERVICES
PHILADELPHIA DISTRICT OFFICE
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:17-cv-02389)
District Judge: Honorable Timothy J. Savage
_______________
Argued November 15, 2018
Before: GREENAWAY, JR., BIBAS, and FUENTES, Circuit
Judges.
(Filed February 14, 2019)
_______________
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Douglas A. Grannan [ARGUED]
300 Walnut Street
Philadelphia, PA 19106
Counsel for Petitioner-Appellant
Elizabeth Fitzgerald-Sambou [ARGUED]
Rodolfo D. Saenz
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Anthony St. Joseph
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Respondent-Appellee
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
People have several paths to press claims of U.S. citizen-
ship. They can raise citizenship as a defense to removal. They
can affirmatively petition the government. And they can bring
their claims in federal court. In any case, the core inquiry re-
mains the same: is this person a United States citizen? Adel
Dessouki is not. That one finding moots the rest of the issues
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here. So we will deny his petitions for review and dismiss his
District Court appeal.
I. BACKGROUND
Adel Dessouki’s immigration saga spans decades. He was
born in France in 1982. His parents never married, and they
separately immigrated to the United States. Dessouki came
with his mother and went on to live with his father. Though
they entered on temporary visas, his mother became a lawful
permanent resident and his father a U.S. citizen. But Dessouki
himself remained on parole status for many years.
Things took a turn for the worse in 2003, when Dessouki
was convicted of several drug-related felonies. The govern-
ment soon tried to remove him. But the government failed to
prove that Dessouki was an alien. So an immigration judge ter-
minated his removal proceedings. Dessouki remained in the
United States.
But not for long. A few years later, the government reo-
pened the proceedings. After reconsidering the previous deci-
sion, another immigration judge reversed course and rejected
Dessouki’s claim that he was a citizen. The government then
removed him to France.
Ever-persistent, Dessouki snuck back into the United
States. But not without consequence—he was charged with
reentry after deportation. He recently pleaded guilty and was
sentenced to time served.
Dessouki continued to claim citizenship. He first asked an
immigration judge to reopen his removal proceedings. The
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judge denied that motion, and the Board of Immigration Ap-
peals affirmed. Dessouki next brought a motion to reconsider,
which the Board also denied. He then filed an action in U.S.
District Court seeking a declaration that he is a citizen under 8
U.S.C. § 1503(a). The District Court dismissed the case for lack
of subject-matter jurisdiction. In this consolidated appeal, Des-
souki seeks review of these adverse rulings.
II. WE MUST DECIDE DESSOUKI’S CLAIM TO CITIZENSHIP
For years, Dessouki has claimed that he derived citizenship
from his father. He has presented this argument to immigration
judges, the Board, and U.S. Citizenship and Immigration Ser-
vices. With one exception, it has been rejected at every turn.
He now advances the same argument here. We too will re-
ject it. But before getting there, we must ensure that we have
jurisdiction. And we do have it, because Congress obligates us
to review claims of citizenship:
If the petitioner claims to be a national of the
United States and 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.
8 U.S.C. § 1252(b)(5)(A). We have assumed that this provision
grants jurisdiction. See, e.g., Morgan v. Att’y Gen., 432 F.3d
226, 229 (3d Cir. 2005).
Today, we affirm that interpretation. To begin, the word
“shall” imposes a mandatory requirement. By obligating us to
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review nationality claims, § 1252(b)(5)(A) must grant jurisdic-
tion. The obligation to decide entails the power to do so. Other
parts of this provision confirm our reading; much of § 1252
concerns jurisdiction. See, e.g., § 1252(e)(2) (granting limited
review over habeas proceedings); § 1252(a)(2) (exempting
other proceedings from judicial review); § 1252(b)(1)-(3) (list-
ing requirements for appellate jurisdiction). Given this statu-
tory context, § 1252(b)(5)(A) is best read as granting jurisdic-
tion.
A contrary reading would raise serious constitutional con-
cerns. The Executive cannot deport a citizen. A “claim of citi-
zenship is thus a denial of an essential jurisdictional fact” in a
removal proceeding. Ng Fung Ho v. White, 259 U.S. 276, 284
(1922). But unless we read § 1252(b)(5)(A) as jurisdictional,
Article III courts would lack the power to ensure that the Ex-
ecutive does not overstep its bounds and deport citizens. We
should avoid this result. In sum, not only can we review Des-
souki’s claim to citizenship before the agency, but we must do
so.
III. DESSOUKI IS NOT A CITIZEN
Dessouki bases his citizenship claim on his father’s natu-
ralization. But the relevant law requires his parents to have
once been married. They never were, so Dessouki is not a citi-
zen.
We exercise plenary review over Dessouki’s claim to citi-
zenship. Jordon v. Att’y Gen., 424 F.3d 320, 328 (3d Cir.
2005). The law “in effect at the time [of] the critical events
giving rise to” his claim governs our review. Morgan, 432 F.3d
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at 230. So we apply the law as it was in 1998, the year that his
father naturalized. At that time, a child born outside the United
States to alien parents could derive citizenship in three ways. 8
U.S.C. § 1432(a) (repealed 2000); Jordon, 424 F.3d at 329.
First, Dessouki could gain citizenship if both his parents
were naturalized. § 1432(a)(1). But his mother never was, so
his claim fails under that provision. Second, if one of his par-
ents died, the other’s naturalization sufficed. § 1432(a)(2). But
that too is inapt, because both his parents were alive in 1998.
The third path requires him to satisfy three subsections.
§ 1432(a)(3)-(5); Jordon, 424 F.3d at 329. Dessouki’s claim
fails at (a)(3), so we need not reach whether (a)(4) and (a)(5)
are met. He can satisfy (a)(3) in two ways. First, if “there has
been a legal separation of the parents,” Dessouki must show
the “naturalization of the parent having legal custody of [him
as a] child.” § 1432(a)(3). Or “if the child was born out of wed-
lock and the paternity of the child has not been established by
legitimation,” he must show that his mother naturalized. Id.
The second half of this provision does not help Dessouki, be-
cause his mother was never naturalized.
So that leaves the first half of (a)(3). There too, Dessouki’s
claim hits a snag. His path to derivative citizenship turns on
two words: “legal separation.” A legal separation “occurs only
upon a formal governmental action . . . under the laws of a state
or nation having jurisdiction over the marriage.” Morgan, 432
F.3d at 234. There can be no legal separation here—because
there was never a marriage in the first place. Dessouki con-
cedes that his parents never married. Pet’r Br. 3. Those who
never marry cannot legally separate. True enough, Dessouki’s
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parents have lived apart for decades. In that sense, they are sep-
arated. But finding this arrangement a “legal separation” would
flout our decision in Morgan and read the word “legal” out of
the statute. So Dessouki’s claim under the first half of (a)(3)
fails as well. Because Dessouki does not satisfy any of
§ 1432(a)’s alternatives, he is not entitled to derivative citizen-
ship.
* * * * *
Dessouki raises many arguments on appeal. But in the end,
he is not a citizen. That is enough to deny his two petitions for
review and moot the lingering agency issues. Our finding that
Dessouki is not a citizen also moots his district-court suit. So
we will dismiss his appeal of the District Court’s dismissal.
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