PATRICK J. DONNELLY v. CONTROLLED APPLICATION REVIEW AND RESOLUTION PROGRAM UNIT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, THOMAS CIOPPA, DISTRICT DIRECTOR OF THE NEW YORK FIELD OFFICE OF THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UR M. JADDOU, DIRECTOR OF THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ALEJANDRO MAYORKAS, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL
No. 20-4243
United States Court of Appeals for the Second Circuit
June 14, 2022
AUGUST TERM 2021. ARGUED: FEBRUARY 28, 2022. Thе Clerk of Court is directed to amend the caption as set forth above.
On Appeal from the United States District Court for the Southern District of New York
Before: WALKER, MENASHI, and LEE, Circuit Judges.
Petitioner-Appellant Patrick J. Donnelly brought this action seeking review of the denial of his application for naturalization in the U.S. District Court for the Southern District of New York under
JESSICA F. ROSENBAUM, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Respondents-Appellees.
MENASHI, Circuit Judge:
In 2009, Petitioner-Appellant Patrick J. Donnelly filed an application for naturalization with United States Citizenship and Immigration Services (“USCIS“), one of the respondents-appellees in this case. Nine years later, after a cоnvoluted series of proceedings, his application was denied when USCIS determined that he was ineligible for naturalization. Donnelly filed an administrative appeal, and in response the agency sent him a notice to appear at a hearing pursuant to
We hold that the district court erred when it treated
BACKGROUND
I
The Constitution provides that “Congress shall have Power ... [t]o establish an uniform Rule of Naturalization.”
Section 1447 of Title 8 provides for the administrative appeal of an initial denial of a naturalization application. Following such a denial, an applicant “may request a hearing before an immigration officer.”
In the Immigration Act of 1990, Congress provided that “[t]he sole authority to naturalize persons as citizens of the United States is conferred upon the Attorney General.” Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (codified at
of the applicant, he “may apply to the United States district court for the district in which the applicant resides for a hearing on the matter.” The same subsection provides that “[s]uch court has jurisdiction over the matter and may either determinе the matter or remand the matter to [USCIS].”
Second, Congress has provided an avenue for seeking naturalization in federal court after an unsuccessful administrative appeal of an initial denial. Under
[a] person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under
[8 U.S.C. § 1447(a)] , may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5.
When its conditions are met,
II
Patrick J. Donnelly, a citizen of Ireland, entered the United States as a visitor in 1987. Two years later, he married an American citizen. Together, they filed a Form I-130 (Petition for Alien Relative) and a Form I-485 (Application for Permanent Residence), seeking legal permanent resident status for Donnelly.
One question on the Form I-485 asked: “Have you ever, in or outside the United States[,] been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, including traffic regulations?” App‘x 45. Donnelly answered yes and indicated that he had been arrested in New York in 1987 for assault in the third degree, fоr which the record was sealed and the charge dismissed. He provided no details about any other incident. Both the Form I-130 and Form I-485 were approved, and Donnelly obtained conditional permanent resident status on October 1, 1990. When the conditions were removed on October 7, 1992, he became a legal permanent resident.
In 2001, Donnelly sought naturalization for the first time. Similar to Form I-485, Form N-400 (Application for Naturalization) requires disclosure of any criminal charges or arrests. On this form, Donnelly added two incidents that occurred since his I-485 application: his arrests for DWI offenses in 1993 and 2001. He pleaded guilty to the 1993 offense, and he was found guilty of the 2001 offense. Donnelly‘s application for naturalization was denied in 2002 for failure to submit court-certified dispositions for those offenses.
Seven years later, Donnelly reapplied for naturalization. On his newest Form N-400, he again acknowledged his three arrests, and this time he provided court-certified dispositions. On June 17, 2014, he was interviewed by a USCIS officer. At the interview, Donnelly denied having ever been arrested in any other country. When the officer asked if there was “anything else that [he] would like to add,” Donnelly replied that he “was questioned in Ireland for 3 days” by “[t]he [p]olice.” Id. at 104. The officer then asked Donnelly why the police kept him for three days. Donnelly responded that “[i]t was common.” Id.
USCIS initially denied his application on January 29, 2015. USCIS explained that Donnelly failed to list CSH Supply Corporation in his employment history on either his 2001 or 2009 applications, even though a background check revealed that he was registered as the Chief Executive Officer of that company from 1999 to 2006. On the 2009 application, Donnelly answered that he had never given “false or misleading information to any U.S. government official while applying for any immigration benefit or to prevent deportation, exclusion or removal.” Id. at 75. Because the agency found that he lied on his 2001 form by failing to disclose that he had worked for CSH Supply Corporation, USCIS concluded that Donnelly had “given false testimony under oath with the intent to obtain an immigration benefit.” Id. at 201.
Donnelly administratively appealed that decision. After the agency affirmed the decision on appeal, Donnelly filed a petition in federal district court pursuant to
So Donnelly went through the prоcess again. On January 23, 2018, he was interviewed by USCIS for his reopened application. The agency again asked Donnelly about the incident when he was questioned in Ireland. USCIS asked Donnelly if he could “describe how this happened[.] Like were you stopped? Were you arrested? Were you restrained in any way?” App‘x 247. This time, Donnelly did not claim that “[i]t was common.” Id. at 104. Instead, he said, “I was arrested.” Id. at 247.
That answer prompted USCIS to ask Donnelly to provide his criminal history in Ireland. Donnelly produced a “NO TRACE” police certificate from the National Police Chiefs’ Council (“NPCC“)—indicating that no convictions, cautions, final warnings, or reprimands were noted in his records with the NPCC. However, USCIS claimed to “subsequently receive[] information from the Police Service of Northern Ireland which indicates previous arrests that [Donnelly] did not disclose.” Id. at 47. According to USCIS, that documentation revealed “four convictions for driving and road traffic offenses.” Id. And it indicated that, when Donnelly was arrested for three days, his arrest was “pursuant to Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1976.” Id. These details were not disclosed on either Donnelly‘s 2009 application for naturalization or his Form I-485 application for permanent residence.
USCIS denied Donnelly‘s application for naturalization. Under
On June 23, 2018, Donnelly administratively appealed the decision by filing a Form N-336 request for a hearing. He argued that the denial of his application was erroneous because (1) the agency did not provide him with the documentation from the Police Service of Northern Ireland, (2) the fact that he had been a lawful permanent resident made him eligible for naturalization, (3) USCIS did not have the authority to determine that he illegally obtained permanent resident status, (4) he was never charged with a terrorism offense, (5) he did not provide false testimony to obtain an immigration benefit, and (6) USCIS‘s processing of his application was improper.
When, after eleven months, the agency failed to schedule a review hearing, see
USCIS did not adjourn the hearing.2 Yet Donnelly did not appear at the scheduled time. USCIS therefore “review[ed] [his] Form N-336 and Form N-400 based on the information on the record” and “reaffirm[ed] the decision to deny [his] Form N-400” on October 31. Id. at 240-41. The agency noted that Donnelly did not appear for a “hearing to review the denial of the N-400, where ... you were given the opportunity to provide additional documents or briefs to overcome the derogatory information” from the Police Service of Northern Ireland. Id. at 241 (internal quotation marks omitted). The agency made the same observation about Donnelly‘s claim that the agency engaged in unreasonable delay; he was “offered the opportunity to provide additional documents or briefs ... at the time of [his] Form N-336 hearing” but he “failed to do so.” Id. at 247.3
That decision prompted Donnelly to amend his federal court petition on December 18 to note that USCIS reaffirmed the denial of his naturalization application.4 He asked the district court to “render
a judgment that [he] is entitled to be naturalized” and to “conduct a naturalization hearing in this matter de novo pursuant to
The district court granted the government‘s motion. Donnelly, 503 F. Supp. 3d at 105. Reading this court‘s decision in Escaler v. USCIS, 582 F.3d 288 (2d Cir. 2009), the district court concluded that “the Second Circuit treat[s]
DISCUSSION
Donnelly raises two arguments on appeal. First, he contends that the district court erred in holding that he did not satisfy
I
Donnelly first argues that the district court erred in holding that he failed to comply with
According to Donnelly, it was. In his view, “the plain language of the statute simply requires that there be a ‘denial’ of the [a]pplication on appeal.” Appellant‘s Br. 14-15. In other words, Donnelly had a hearing, just not a physical one at which he appeared. And because “there is no statutory requirement that the ‘denial’ can only be made on the basis of a physical hearing,” id. at 15, Donnelly claims that he complied with
We disagree. To be sure, “[t]he term ‘hearing’ in its legal context ... has a host of meanings.” United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 239 (1973). Given how we have repeatedly described the hearing requirement of
“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law” and serves “two main purposes.” Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). “First, exhaustion protects administrative agency authority” by “giv[ing] an agency an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court” and by “discourag[ing] disregard of the agency‘s procedures.” Id. at 89 (internal quotation marks and alteration omitted). “Second, exhaustion promotes efficiency” by resolving claims out of court and by producing “a useful record for subsequent judicial consideration.” Id. Thus, before Donnelly could seek review in the district court, he had to “exhaust available administrative review procedures.” Escaler, 582 F.3d at 292.
In these circumstances, Donnelly failed to exhaust the administrative remedies available to him. The agency provided Donnelly with an opportunity to attend a hearing before an immigration officer, and the agency sought his physical presence at that proceeding. As the agency noted, Donnelly‘s claims may have succeeded on
Donnelly‘s failure to attend the hearing also undermined the purpose of
If Donnelly had attended his hearing, additional procedures would have been available for him to develop and the agency to resolve his claim. Under existing regulations, at the hearing the immigration officer “may receive new evidence or take such additional testimony as may be deemed relevant to the applicant‘s eligibility for naturalization or which the applicant seeks to provide.”
Accordingly, we are unconvinced that Donnelly‘s act of “fil[ing] a fully briefed notice of appeal” satisfies
II
Donnelly‘s second argument is that the district court could have granted his naturalization application even if he had failed to exhaust his administrative remedies. According to Donnelly, the district court erred in holding that
We agree with Donnelly that
A
The question whether a procedural rule is “jurisdictional” is “not merely semantic but one of considerable practical
In Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), the Supreme Court provided a “readily administrable bright line” rule for determining whether a statutory limitation is a jurisdictional rule or a nonjurisdictional rule. Id. at 516. “If the Legislature clearly states that a threshold limitation on a statute‘s scope shall count as jurisdictional,” then the limitation is jurisdictional. Id. at 515-16. In the absence of such a clear statement, “courts should treat the restriction as nonjurisdictiоnal in character.” Auburn Reg‘l Med. Ctr., 568 U.S. at 153 (quoting Arbaugh, 546 U.S. at 516). While Congress need not incant particular “magic words” to enact a jurisdictional requirement, “traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences.” United States v. Wong, 575 U.S. 402, 409-10 (2015); see also Auburn Reg‘l Med. Ctr., 568 U.S. at 153-54 (“We consider context, including this Court‘s interpretations of similar provisions in many years past, as probative of whether Congress intended a particular provision to rank as jurisdictional.“) (internal quotation marks omitted).
We conclude that
Neither does
The government argues that our decision in Escaler has already made clear that
We disagree. “[T]he legal lexicon knows no word morе chameleon-like than ‘jurisdiction.‘” United States v. Sabella, 272 F.2d 206, 209 (2d Cir. 1959) (Friendly, J.). As noted above, for a statutory requirement to be a jurisdictional rule, Congress must clearly state that it is so. Arbaugh, 546 U.S. at 515-16. Nowhere in Escaler did this court engage in that analysis. Our holding in Escaler depended solely on the observation that the “exhaustion requirement is established by statute,” 582 F.3d at 292—a fact that may be true of either a jurisdictional rule or a nonjurisdictional claim-processing rule. We generally require jurisdictional rulings to be expressed clearly to be binding; “sub silentio assumptions of jurisdiction have no precedential value on the jurisdictional question,” Gallego v. Northland Grp. Inc., 814 F.3d 123, 128 n.2 (2d Cir. 2016), and “drive-by jurisdictional rulings” similarly “have no precedential effect,” Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 91 (1998).
The only time Escaler uses the word “jurisdiction” in its analysis is when it says that the applicant‘s failure to exhaust “negates our jurisdiction.” Escaler, 582 F.3d at 293. That ambiguous phrase is not clearly a jurisdictional holding. See Green v. Dep‘t of Educ., 16 F.4th 1070, 1076 (2d Cir. 2021) (per curiam) (“[I]t is important to recall that it has been ‘commonplace’ in judicial opinions for the word ‘jurisdiction’ to refer to limitations that are not truly jurisdictional, such as the elements of a cause of action.“) (quoting Butcher v. Wendt, 975 F.3d 236, 249 (2d Cir. 2020) (Menashi, J., concurring in part and concurring in the judgment)). We do not think the phrase requires us to ignore the Supreme Court‘s command to “see if there is any clear indication that Congress wanted the rule to be jurisdictional.” Henderson, 562 U.S. at 435-36 (internal quotation marks omitted).
“Because the consequences that attach to the jurisdictional label may be so drastic,” courts “have tried in recent cases to bring some discipline to the usе of this term.” Id. at 435. Section 1421(c) lacks the clear language we require before finding that a procedural limitation “speak[s] to a court‘s authority” rather than “to a party‘s procedural obligations.” EPA v. EME Homer Cty. Generation, L.P., 572 U.S. 489, 512 (2014). We therefore hold that
B
That the district court erred in dismissing the case for lack of jurisdiction does not mean that Donnelly‘s case may proceed. “[C]alling a rule nonjurisdictional
Mandatory claim-processing rules “seek to promote the orderly progress of litigation by requiring that the partiеs take certain procedural steps at certain specified times.” Henderson, 562 U.S. at 435. Thus, how
Though not jurisdictional, mandatory claim-processing rules remain mandatory. The Supreme Court has repeatedly said that “[i]f a party properly raises” a mandatory claim-processing rule, the rule is “unalterable.” Manrique, 137 S. Ct. at 1272 (internal quotation marks and alteration omitted); see also Fort Bend County, 139 S. Ct. at 1849 (“A claim-processing rule may be ‘mandatory’ in the sense that a court must enforce the rule if a party properly raises it.“) (internal quotation marks and alteration omitted); Hamer v. Neighborhood Hous. Servs., 138 S. Ct. 13, 17 (2017) (“If properly invoked, mandatory claim-processing rules must be enforced.“); Eberhart, 546 U.S. at 19 (“These claim-processing rules thus assure relief to a party properly raising them.“).
Donnelly‘s argument that we may read an equitable “manifest injusticе” exception into
Despite this authority to the contrary, Donnelly argues that our decision in Lin Zhong v. DOJ, 480 F.3d 104 (2d Cir. 2007), permits us to fashion equitable exceptions to
We disagree that Lin Zhong allows us to ignore the statutory limits on Donnelly‘s cause of action under
Judge-made exceptions may be available for judge-made exhaustion requirements. But we cannot rewrite a statute. Because Donnelly failed to attend the hearing he was provided, he failed to comply with
*
*
*
Though we agree that Donnelly failed to satisfy the exhaustion requirement of
In the context of administrative exhaustion, however, dismissal without prejudice is frequently appropriate because a “failure to exhaust administrative remedies is often a temporary, curable procedural flaw.” See Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (alteration omitted) (quoting Snider v. Melindez, 199 F.3d 108, 111 (2d Cir. 1999)). While it is unlikely, it is conceivable that the agency could reopen Donnelly‘s naturalization proceedings and afford him another opportunity to exhaust his administrative remedies. Accordingly, we AFFIRM the judgment of the district court dismissing the case without prejudice.