NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 18-3618 ___________
OSCAR BAPTISTE, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A078-396-554) Immigration Judge: Honorable Leo Finston ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) May 20, 2019
Before: KRAUSE, SCIRICA, and NYGAARD, Circuit Judges
(Opinion filed: May 23, 2019) ___________
OPINION * ___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Oscar Baptiste is a citizen of Panama who entered the United States on a B-2
visitor visa in January 2001. He adjusted his status to lawful permanent resident in
October 2003. In July 2007, Baptiste filed a naturalization application. On July 31,
2008, the United States Citizenship and Immigration Services (USCIS) denied that
application because it concluded that Baptiste lacked good moral character. That finding
stemmed from Baptiste’s arrest for domestic violence in May 2008. Those Connecticut
state charges (assault in the third degree and risk of injury to a child) were later
dismissed. In March 2011, Baptiste filed a second naturalization application, which was
denied on February 19, 2019. 1
In March 2013, a federal jury found Baptiste guilty of knowingly and intentionally
importing cocaine. See 21 U.S.C. §§ 952 and 960(b)(2)(B)(ii). He was sentenced to 108
months in prison, which was later reduced to 87 months. After completing his sentence,
the Government took Baptiste into immigration custody. He was charged with
removability for having been convicted of an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(B) (illicit trafficking in a controlled substance), 8 U.S.C.
§ 1227(a)(2)(A)(iii), and for having been convicted of a controlled substance offense, 8
U.S.C. § 1227(a)(2)(B)(i).
In immigration court, Baptiste filed a motion to terminate the proceedings, arguing
1 Meanwhile, in November 2018, Baptiste applied for relief in the United States District Court for the District of New Jersey, seeking to compel the USCIS to adjudicate his naturalization application or to have the District Court declare that he is a United States citizen. Baptiste v. Att’y Gen., D.N.J. Civ. No. 2:18-cv-16826. 2 that the USCIS had improperly denied his first naturalization application. An
Immigration Judge concluded that Baptiste was removable and denied his request to
terminate, noting that only a District Court has jurisdiction over an appeal from the
USCIS’s denial of a naturalization application. On November 2, 2018, the Board of
Immigration Appeals dismissed Baptiste’s appeal, stating that it lacked jurisdiction to
review the denial of the naturalization application and explaining that Baptiste did not
present any affirmative communications from the Department of Homeland Security
attesting to his prima facie eligibility for naturalization. See In re Acosta Hidalgo, 24 I.
& N. Dec. 103, 105 (BIA 2007) (providing that the BIA may terminate removal
proceedings to allow pursuit of a naturalization application where DHS has provided “an
affirmative communication attesting to an alien’s prima facie eligibility for
naturalization”). Baptiste filed a pro se petition for review of the BIA’s decision. 2 In
support of his petition, Baptiste seeks to file a reply brief out of time and a supplemental
appendix.
Baptiste argues that his due process rights were violated because the USCIS’s lack
of good moral character determination in 2008 was based on domestic violence charges
that were later dismissed. He also asserts that the USCIS’s “unreasonable and
unnecessary” delay in adjudicating his 2011 naturalization violated his due process rights.
2 Because Baptiste did not challenge the Board’s determination that he is removable under § 1227(a)(2)(A)(iii) and § 1227(a)(2)(B)(i), he has waived those issues. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
3 Because his aggravated felony conviction now prevents him from demonstrating that he
maintained good moral character, see 8 U.S.C. § 1101(f)(8), Baptiste asks for retroactive
relief. See Barden v. Keohane, 921 F.2d 476, 478 n.2 (3d Cir. 1990) (stating that “[n]unc
pro tunc” consideration “permits acts to be done after the time they should have been
done with a retroactive effect”).
We lack jurisdiction “to review any final order of removal against an alien who is
removable by reason of having committed a criminal offense covered in
[§ 1227(a)(2)(A)(iii) or 1227(a)(2)(B)].” 8 U.S.C. § 1252(a)(2)(C). But we retain
jurisdiction to review colorable constitutional claims and questions of law presented in
petitions for review of final removal orders. 3 See 8 U.S.C. § 1252(a)(2)(D); see
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). We therefore may consider
the legal question whether the IJ and the BIA lacked jurisdiction to consider Baptiste’s
challenge to the denial of his naturalization application. Cf. Bhargava v. Att’y Gen., 611
F.3d 168, 170 (3d Cir. 2010) (reviewing de novo question whether BIA erred in
determining that it lacked jurisdiction to review Department of Homeland Security’s
denial of petitioner’s asylum status). We also have jurisdiction to review Baptiste’s
3 We may review a claim of nationality if there is no genuine issue of material fact with respect to that claim. See 8 U.S.C. § 1252(b)(5). Here, however, Baptiste does not claim that he is a national of the United States. Instead, he challenges the denial of his application for naturalization. See Abiodun v. Gonzales, 461 F.3d 1210, 1216 (10th Cir. 2006) (holding that, in adjudicating a petition for review, a court may address “only a claim that the petitioner is a national of the United States, not a claim that the petitioner’s application for naturalization was wrongly denied”).
4 assertion that his due process rights have been violated. See Bonhometre v. Gonzales,
414 F.3d 442, 445-46 (3d Cir. 2005).
“[N]either the Board nor the Immigration Judges have jurisdiction to determine an
alien’s eligibility for naturalization ….” In re Hidalgo, 24 I. & N. Dec. 103, 105-06 (BIA
2007); Zegrean v.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 18-3618 ___________
OSCAR BAPTISTE, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A078-396-554) Immigration Judge: Honorable Leo Finston ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) May 20, 2019
Before: KRAUSE, SCIRICA, and NYGAARD, Circuit Judges
(Opinion filed: May 23, 2019) ___________
OPINION * ___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Oscar Baptiste is a citizen of Panama who entered the United States on a B-2
visitor visa in January 2001. He adjusted his status to lawful permanent resident in
October 2003. In July 2007, Baptiste filed a naturalization application. On July 31,
2008, the United States Citizenship and Immigration Services (USCIS) denied that
application because it concluded that Baptiste lacked good moral character. That finding
stemmed from Baptiste’s arrest for domestic violence in May 2008. Those Connecticut
state charges (assault in the third degree and risk of injury to a child) were later
dismissed. In March 2011, Baptiste filed a second naturalization application, which was
denied on February 19, 2019. 1
In March 2013, a federal jury found Baptiste guilty of knowingly and intentionally
importing cocaine. See 21 U.S.C. §§ 952 and 960(b)(2)(B)(ii). He was sentenced to 108
months in prison, which was later reduced to 87 months. After completing his sentence,
the Government took Baptiste into immigration custody. He was charged with
removability for having been convicted of an aggravated felony as defined in 8 U.S.C.
§ 1101(a)(43)(B) (illicit trafficking in a controlled substance), 8 U.S.C.
§ 1227(a)(2)(A)(iii), and for having been convicted of a controlled substance offense, 8
U.S.C. § 1227(a)(2)(B)(i).
In immigration court, Baptiste filed a motion to terminate the proceedings, arguing
1 Meanwhile, in November 2018, Baptiste applied for relief in the United States District Court for the District of New Jersey, seeking to compel the USCIS to adjudicate his naturalization application or to have the District Court declare that he is a United States citizen. Baptiste v. Att’y Gen., D.N.J. Civ. No. 2:18-cv-16826. 2 that the USCIS had improperly denied his first naturalization application. An
Immigration Judge concluded that Baptiste was removable and denied his request to
terminate, noting that only a District Court has jurisdiction over an appeal from the
USCIS’s denial of a naturalization application. On November 2, 2018, the Board of
Immigration Appeals dismissed Baptiste’s appeal, stating that it lacked jurisdiction to
review the denial of the naturalization application and explaining that Baptiste did not
present any affirmative communications from the Department of Homeland Security
attesting to his prima facie eligibility for naturalization. See In re Acosta Hidalgo, 24 I.
& N. Dec. 103, 105 (BIA 2007) (providing that the BIA may terminate removal
proceedings to allow pursuit of a naturalization application where DHS has provided “an
affirmative communication attesting to an alien’s prima facie eligibility for
naturalization”). Baptiste filed a pro se petition for review of the BIA’s decision. 2 In
support of his petition, Baptiste seeks to file a reply brief out of time and a supplemental
appendix.
Baptiste argues that his due process rights were violated because the USCIS’s lack
of good moral character determination in 2008 was based on domestic violence charges
that were later dismissed. He also asserts that the USCIS’s “unreasonable and
unnecessary” delay in adjudicating his 2011 naturalization violated his due process rights.
2 Because Baptiste did not challenge the Board’s determination that he is removable under § 1227(a)(2)(A)(iii) and § 1227(a)(2)(B)(i), he has waived those issues. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
3 Because his aggravated felony conviction now prevents him from demonstrating that he
maintained good moral character, see 8 U.S.C. § 1101(f)(8), Baptiste asks for retroactive
relief. See Barden v. Keohane, 921 F.2d 476, 478 n.2 (3d Cir. 1990) (stating that “[n]unc
pro tunc” consideration “permits acts to be done after the time they should have been
done with a retroactive effect”).
We lack jurisdiction “to review any final order of removal against an alien who is
removable by reason of having committed a criminal offense covered in
[§ 1227(a)(2)(A)(iii) or 1227(a)(2)(B)].” 8 U.S.C. § 1252(a)(2)(C). But we retain
jurisdiction to review colorable constitutional claims and questions of law presented in
petitions for review of final removal orders. 3 See 8 U.S.C. § 1252(a)(2)(D); see
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). We therefore may consider
the legal question whether the IJ and the BIA lacked jurisdiction to consider Baptiste’s
challenge to the denial of his naturalization application. Cf. Bhargava v. Att’y Gen., 611
F.3d 168, 170 (3d Cir. 2010) (reviewing de novo question whether BIA erred in
determining that it lacked jurisdiction to review Department of Homeland Security’s
denial of petitioner’s asylum status). We also have jurisdiction to review Baptiste’s
3 We may review a claim of nationality if there is no genuine issue of material fact with respect to that claim. See 8 U.S.C. § 1252(b)(5). Here, however, Baptiste does not claim that he is a national of the United States. Instead, he challenges the denial of his application for naturalization. See Abiodun v. Gonzales, 461 F.3d 1210, 1216 (10th Cir. 2006) (holding that, in adjudicating a petition for review, a court may address “only a claim that the petitioner is a national of the United States, not a claim that the petitioner’s application for naturalization was wrongly denied”).
4 assertion that his due process rights have been violated. See Bonhometre v. Gonzales,
414 F.3d 442, 445-46 (3d Cir. 2005).
“[N]either the Board nor the Immigration Judges have jurisdiction to determine an
alien’s eligibility for naturalization ….” In re Hidalgo, 24 I. & N. Dec. 103, 105-06 (BIA
2007); Zegrean v. Att’y Gen., 602 F.3d 273, 275 (3d Cir. 2010) (noting that the
Immigration and Nationality Act “dictates that the ‘sole authority to naturalize persons as
citizens … is conferred upon the Attorney General.’” (quoting Perriello v. Napolitano,
579 F.3d 135, 142 (2d Cir. 2009))). Thus, the BIA properly held that it lacked
jurisdiction to consider Baptiste’s challenge to the USCIS’s 2008 denial of his
naturalization application. To challenge that denial, Baptiste should have timely sought
review before an immigration officer. See 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2(a).
Thereafter, an appropriate District Court could have reviewed the immigration officer’s
decision. See 8 U.S.C. § 1421(c).
We also conclude that the delay in processing Baptiste’s 2011 naturalization
application cannot serve as a basis for relief. The relevant regulation provides that “[a]
decision to grant or deny the [naturalization] application shall be made at the time of the
initial examination or within 120-days after the date of the initial examination of the
applicant for naturalization ….” 8 C.F.R. § 335.3(a). If an applicant for naturalization is
not notified of a decision within 120 days of his examination under oath, he can apply to
the appropriate United States District Court for a hearing on the naturalization
application. 8 U.S.C. § 1447(b). Baptiste did not use this process while he was still 5 potentially eligible for naturalization. Instead, he waited over seven years after filing his
2011 naturalization application to request a hearing before the District Court. In the
meantime, his 2013 aggravated felony conviction rendered him ineligible for
naturalization. See 8 U.S.C. §§ 1101(f)(8), 1427(a)(3). Under these circumstances,
Baptiste is estopped from asserting that the delay in adjudicating his naturalization
application violated his due process rights. See Duran-Pichardo v. Attorney General, 695
F.3d 282, 286-87 & n.7 (3d Cir. 2012) (relying on estoppel to hold that a petitioner who
“failed to invoke the very statutory and regulatory scheme that Congress enacted to
address this type of delay,” could not thereafter “assert that he was deprived of due
process of law.”).
Finally, to the extent that Baptiste argues that he is entitled to retroactive relief, we
reject his claim. As noted above, Baptiste’s conviction for an aggravated felony renders
him presently ineligible for naturalization. He argues, however, that his naturalization
application should be considered as if he were not an aggravated felon because the
USCIS unreasonably delayed adjudicating the naturalization application that he filed in
2011. In Duran-Pichardo, the petitioner sought relief on the ground that the USCIS
should have granted his naturalization application before he was convicted of an
aggravated felony. 695 F.3d 282, 287-88 (3d Cir. 2012). We rejected this claim, noting
that 8 U.S.C. § 1429 prohibits the naturalization of any person against whom a final order
of removal has been entered, id. at 277, and observing that equitable relief may not be
granted in contravention of the expressed intent of Congress, id. at 288. Because 6 Baptiste, like Duran-Pichardo, is subject to a final order of removal, he is not entitled to
nunc pro tunc relief.
Accordingly, we will deny the petition for review. Baptiste’s motion to file his
reply brief out of time and for leave to supplement the appendix is granted.