Neil Sean Fagan v. U.S. Attorney General

USCA11 Case: 20-10239 Document: 60-1 Date Filed: 12/15/2022 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10239
Non-Argument Calendar
____________________
NEIL SEAN FAGAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A026-847-908
____________________
USCA11 Case: 20-10239 Document: 60-1 Date Filed: 12/15/2022 Page: 2 of 3
2 Opinion of the Court 20-10239
Before JORDAN, GRANT, and LAGOA, Circuit Judges.
PER CURIAM:
Neil Sean Fagan, proceeding pro se, petitions for review of
an order of the Board of Immigration Appeals dismissing his appeal
of the immigration judge’s (a) denial of his motion to terminate re-
moval proceedings and (b) finding that he was removable under
former INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227 (a)(2)(A)(ii). On ap-
peal, Mr. Fagan argues that he is a United States citizen based on
the concept of derivative citizenship established by former INA
§ 321(a), 8 U.S.C. § 1432(a).
Following a review of the record, and applying summary-
judgment principles, see Garza-Flores v. Mayorkas, 38 F.4th 440,
444 (5th Cir. 2022), we conclude that there is a genuine dispute of
material fact as to Mr. Fagan’s claim of citizenship. For example,
both Mr. Fagan and the government have submitted immigration
(and other) documents which support their respective positions.
Accordingly, we transfer this proceeding to the U.S. District Court
for the Southern District of Georgia—the district where Mr. Fagan
resides—for a de novo hearing on the nationality claim. See 8
U.S.C. § 1252(b)(5)(B) (“If the petitioner claims to be a national of
the United States and the court of appeals finds that a genuine issue
of material fact about the petitioner’s nationality is presented, the
court shall transfer the proceeding to the district court of the
United States for the judicial district in which the petitioner resides
for a new hearing on the nationality claim and a decision on that
claim as if an action had been brought in the district court under
USCA11 Case: 20-10239 Document: 60-1 Date Filed: 12/15/2022 Page: 3 of 3
20-10239 Opinion of the Court 3
section 2201 of Title 28.”). The district court should seek to appoint
or obtain counsel (including pro bono counsel) for Mr. Fagan be-
fore adjudicating the nationality issue.
We hold Mr. Fagan’s petition for review in abeyance pend-
ing the resolution of the nationality claim in the district court. See
Duarte-Ceri v. Holder, 630 F.3d 83, 91-92 (2d Cir. 2010); Ayala-Vil-
lanueva v. Holder, 572 F.3d 736, 740 (9th Cir. 2009). Once the dis-
trict court has resolved Mr. Fagan’s claim of nationality, it shall
transmit its order and judgment and the record to this court. The
parties will be provided an opportunity to file supplemental briefs
addressing the district court’s order.
One more matter warrants discussion. At the moment,
there is a small circuit split on whether, following a transfer to a
district court pursuant to § 1252(b)(5)(B), the losing party on the
nationality issue needs to file a new notice of appeal to obtain re-
view of the nationality ruling. Compare Demirchyan v. Holder,
641 F.3d 1141, 1142-43 (9th Cir. 2011), with Ricketts v. Att’y Gen.,
897 F.3d 491, 495-96 (3d Cir. 2018). Although we do not express
any views on the issue today, we counsel Mr. Fagan and the gov-
ernment to file a timely notice of appeal in case they wish to seek
review of the district court’s nationality determination. If a new
appeal is docketed, it will be consolidated with the present appeal.
MATTER TRANSFERRED TO THE U.S. DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF GEORGIA.