Abdulmalik Abdulla v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19-1167

_____________

ABDULMALIK MAHYOUB MULHI ABDULLA,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA,

Respondent

_____________

On Petition for Review of an Order of the

Board of Immigration Appeals

(No. A041-706-347)

Immigration Judge: Nelson V. Padilla

____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

August 20, 2024

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Before: CHAGARES, Chief Judge, BIBAS and MATEY,

Circuit Judges

(Filed: August 27, 2025)

Julie A. Goldberg, Esq.

Goldberg & Associates

3005 Oakwood Blvd.

Melvindale, MI 48122

Eric Hisey, Esq.

Goldberg & Associates

310 Beverley Rd. Apt. 3b

Brooklyn, NY 11218

Counsel for Petitioner

Claire Workman, Esq.

Joseph H. Hunt, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Washington, DC 20044

Counsel for Respondent

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OPINION OF THE COURT

___________

CHAGARES, Chief Judge.

Abdulmalik Mahyoub Mulhi Abdulla petitions for

review of an order by the Board of Immigration Appeals

(“BIA”) denying a motion for certification of a late-filed

appeal. This petition was first before us in 2020, when we

2

dismissed it in part for lack of jurisdiction and for failure to

exhaust administrative remedies, and denied it in remaining

part for lack of merit. Among other things, applying binding

precedent of our Court, we denied Abdulla’s claim that he

derived United States citizenship from his father.

Abdulla petitioned for certiorari to the United States

Supreme Court, raising only his derivative citizenship claim.

On October 18, 2021, the Supreme Court granted the petition

and remanded the matter to this Court for further

consideration of the derivative citizenship claim in light of the

brief filed by the Acting Solicitor General for the United

States. We have conducted that review, taking into particular

account the Supreme Court’s intervening decision in Loper

Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Upon

careful consideration, we reach the same conclusion that we

did previously: Abdulla’s derivative citizenship claim fails

under the precedent of our Court. For the reasons that follow,

we once again will dismiss the petition in part for lack of

jurisdiction and failure to exhaust administrative remedies,

and we will deny it in remaining part because Abdulla’s

citizenship claim lacks merit under our binding precedent.

I.

Abdulla was born in Yemen in September 1976 to

Yemeni parents. In March 1986, when Abdulla was nine

years old, his father became a naturalized United States

citizen. His parents legally separated and divorced three

years later. Abdulla and his brother, Fawaz, joined their

father in the United States in May 1990, and Abdulla became

a lawful permanent resident at that time.

3

Abdulla contends that, in 1990, his father filed N-600

applications to naturalize both children. Allegedly due to

former counsel’s ineffective assistance, the application was

not made part of the Administrative Record. Fawaz received

proof of United States citizenship in 1995, but Abdulla claims

that, for reasons unknown, his application was never

processed. 1

Abdulla was convicted in 2014 in the United States

District Court for the District of Maryland of food stamp

fraud, wire fraud, and aiding and abetting. DHS issued a

Notice to Appear (“NTA”) alleging that Abdulla was not a

United States citizen and that, because of his federal criminal

convictions, he was subject to removal. DHS served the NTA

on Abdulla in January 2018. The NTA did not specify the

date and time of Abdulla’s first hearing, providing only that

the date and time of the hearing remained to be set.

In Abdulla’s removal hearing before the immigration

judge (“IJ”), his prior counsel argued that Abdulla had

acquired derivative United States citizenship from his father

based on the law in effect at the time of his birth, and that

Abdulla therefore could not be removed from the United

States. Counsel also moved to terminate the removal

proceedings, contending that DHS had failed to establish that

Abdulla’s convictions were aggravated felonies under the

Immigration and Nationality Act (“INA”).

1

The United States Department of Homeland Security

(“DHS”) claims that Abdulla’s N-400 naturalization

application was filed in July 1996 and was denied in January

2009.

4

In May 2018, the IJ denied Abdulla’s motion to

terminate and sustained the charge of removability.

Abdulla’s prior counsel then petitioned on his behalf for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In his application,

Abdulla explained that he feared harm in Yemen because of

the Yemeni civil war, noting that the Houthi rebels are hostile

towards Sunni Muslims such as himself and that he feared the

Yemeni military would force him to fight.

The IJ denied Abdulla’s petition and ordered his

removal on October 4, 2018. Abdulla’s appeal to the BIA

was due within thirty days, on November 5, 2018, but it was

not filed until December 21, 2018, shortly after Abdulla

retained new counsel. The appeal included both a motion for

an emergency stay of removal and a motion for certification

of the late-filed appeal. In support of the motion for

certification of the late-filed appeal, Abdulla noted that the

BIA has previously held that, where a case presents

exceptional circumstances, the BIA may certify a case to

itself even if filed after the deadline. Abdulla contended that

his failure to file a timely appeal occurred for reasons that

were both beyond his control and exceptional because, while

he was detained, he reasonably expected that his prior counsel

would act to preserve his appeal rights and, upon learning that

prior counsel had failed to do so, he “acted with speed,

diligence, and zeal” in asking new counsel to seek to

prosecute his appeal. Administrative Record 22. Abdulla

sought to present on appeal the principal argument that he is a

United States citizen, as well as his alternative claims for

relief from removal.

On January 10, 2019, the BIA, observing that the

appeal was untimely by seven weeks, concluded that Abdulla

5

failed to demonstrate exceptional circumstances for

certification of the appeal and dismissed the appeal as

untimely filed. This petition for review followed.

We entered an opinion and judgment on August 20,

2020, dismissing Abdulla’s petition for review in part for lack

of jurisdiction and denying it in part for lack of merit. We

concluded, among other things, that governing case law

established that Abdulla did not derive citizenship from his

father. Abdulla petitioned for rehearing, claiming that we

erred in denying the derivative citizenship claim. Our Court

denied panel and en banc rehearing.

Abdulla then petitioned for certiorari in the United

States Supreme Court. He sought review of the derivative

citizenship issue alone. The Supreme Court granted certiorari

and vacated our judgment but did not hold argument or issue

an opinion. Instead, the Supreme Court’s Clerk directed in a

letter order that the remand was “for further consideration [of

Abdulla’s citizenship claim] in light of the brief filed by the

Acting Solicitor General.” Supreme Court Order 1.

The matter is now before us. The parties submitted

supplemental briefs setting forth their positions in light of the

Supreme Court’s remand order. While the matter was

pending on remand, the Supreme Court issued its decision in

Loper Bright, which impacted the degree of deference

afforded to statutory interpretations by administrative

agencies. We therefore requested additional briefing from the

parties in light of Loper Bright. Having received those

supplemental briefs, the matter is now ready for our

disposition.

6

II.

The BIA had jurisdiction to hear Abdulla’s appeal

under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. As we will

discuss infra, we lack jurisdiction to review the BIA’s

discretionary decision to decline to self-certify Abdulla’s

appeal as well as Abdulla’s unexhausted merits claims. 2 We

do, however, have jurisdiction to review Abdulla’s legal

claim for derivative United States citizenship under 8 U.S.C.

§ 1252(b)(5). See Espichan v. Att’y Gen., 945 F.3d 794, 796

(3d Cir. 2019). We also have jurisdiction to review Abdulla’s

legal claim that the immigration court lacked jurisdiction to

conduct the removal proceedings because of the NTA’s

failure to state the date and time of his initial hearing. See

Nkomo v. Att’y Gen., 930 F.3d 129, 132 (3d Cir. 2019)

(exercising jurisdiction over identical claim). These claims

present legal questions, which we review de novo. Yusupov

v. Att’y Gen., 650 F.3d 968, 977 (3d Cir. 2011).

III.

Abdulla asks us to review the BIA’s decision not to

self-certify his late-filed appeal. We lack jurisdiction to do

so.

The BIA is empowered by regulation to exercise

appellate jurisdiction over procedurally improper appeals,

2

Although we conclude that we lack jurisdiction over

Abdulla’s challenge to the BIA’s decision not to exercise its

discretion to self-certify the late-filed appeal, we have

jurisdiction to determine our own jurisdiction. See Orie v.

Dist. Att’y Allegheny Cnty., 946 F.3d 187, 190 n.7 (3d Cir.

2019).

7

where it chooses to self-certify such an appeal. See 8 C.F.R.

§ 1003.1(c) (“Jurisdiction by certification”). This regulation

provides:

The Board, in its discretion, may review any . . .

case [arising under its appellate jurisdiction] by

certification without regard to the provisions of

§ 1003.7 if it determines that the parties have

already been given a fair opportunity to make

representations before the Board regarding the

case, including the opportunity to request oral

argument and to submit a brief.

Id. (emphasis added).

The Administrative Procedure Act (“APA”) provides

for judicial review of final agency actions except where

judicial review is precluded by statute or where “agency

action is committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2). Agency action is deemed “committed to agency

discretion by law,” id., where a law “is drawn so that a court

would have no meaningful standard against which to judge

the agency’s exercise of discretion,” Heckler v. Chaney, 470

U.S. 821, 830 (1985).

Section 1003.1(c) provides that the BIA “may” self-

certify an appeal “in its discretion.” The provision includes

no language limiting the BIA’s decision to decline self-

certification 3 — so there is no standard by which we may

3

To be sure, the regulation is limited in that it first

requires the BIA to “determine[] that the parties have already

been given a fair opportunity to make representations before

the Board regarding the case.” 8 C.F.R. § 1003.1(c). Here,

8

review the BIA’s exercise of this discretion. Nor do other

regulations or statutes provide us with a benchmark for

review of this discretionary agency action. 4 The decision to

decline self-certification here has been committed entirely to

agency discretion by law so, under the APA, we lack

jurisdiction to review it.

Abdulla disagrees. He contends that we have

jurisdiction to review the BIA’s self-certification denial

because, in other cases, the BIA has held that it may self-

certify appeals that present “exceptional circumstances.” See,

e.g., Matter of Liadov, 23 I. & N. Dec. 990, 993 (B.I.A. 2006)

(noting that “[w]here a case presents exceptional

circumstances, the Board may certify a case to itself under

8 C.F.R. § 1003.1(c)”), overruled on other grounds, Matter of

Morales-Morales, 28 I. & N. Dec. 714 (B.I.A. 2023).

Abdulla claims that the alleged ineffective assistance of

counsel that resulted in the untimely filing of his appeal

constitutes an exceptional circumstance, and that the BIA

erred in determining otherwise. But the BIA has not given

content to the “exceptional circumstances” standard by

explaining what measures it applies to determine whether a

case merits self-certification of a late-filed appeal. We

therefore have no way to assess whether the BIA has abused

its discretion in Abdulla’s case.

however, there is no dispute that this threshold requirement

was satisfied. Beyond the threshold requirement, there is no

regulatory limitation on the BIA’s discretion concerning a

decision declining to self-certify an appeal.

4

Cf. Qatanani v. Att’y Gen., 144 F.4th 485, 501 (3d

Cir. 2025) (exercising jurisdiction to review the BIA’s

affirmative decision to self-certify a late-filed appeal).

9

This jurisdictional question is one of first impression

in this Court. We are, however, guided by our jurisprudence

in a closely related area. In our decision in Sang Goo Park v.

Attorney General, 846 F.3d 645 (3d Cir. 2017), we

considered a petitioner’s request that we review the BIA’s

denial of his request for “sua sponte” reopening under 8

C.F.R. § 1003.2(a). Id. at 647. Under that provision, like

§ 1003.1(c), the BIA’s discretion is extremely broad. The

regulation provides that “the BIA may reopen a case at any

time,” and it “has held . . . that it will do so only in

extraordinary circumstances.” Id. at 647–48. We held in

Sang Goo Park that the agency’s “discretion in this area is . . .

so broad . . . that we have no meaningful way to review it,

thereby depriving us of jurisdiction over orders denying sua

sponte reopening.” Id. at 648. The logic of Sang Goo Park

persuades us that the same outcome applies in this case.

In Sang Goo Park, we identified two limited

exceptions that permit us to review orders denying sua sponte

reopening. First, “when the BIA relies on an incorrect legal

premise in denying a motion to reopen sua sponte . . . . we

may exercise jurisdiction . . . and remand to the BIA so that it

may exercise its sua sponte authority under the correct legal

framework.” Id. at 651 (citation omitted). Second, under

“the ‘settled course’ exception,” we may exercise jurisdiction

over the denial of sua sponte reopening if a petitioner can

“establish that the BIA has limited its discretion via a policy,

rule, settled course of adjudication, or by some other method,

such that the BIA’s discretion can be meaningfully reviewed

for abuse.” Id. at 653. We concluded that these exceptions

“d[id] not lead to the reasonable inference that the BIA ha[d

limited its discretion]” in that case. Id. at 656.

10

If we assume (without deciding) that the two Sang Goo

Park exceptions apply to a self-certification denial as well,

they nonetheless would not permit us to review Abdulla’s

self-certification claim. Abdulla does not claim that the BIA

relied on any incorrect legal premise in declining to self-

certify Abdulla’s appeal. Nor has Abdulla identified any

respect in which the BIA has limited its own discretion in this

area such that we can review that exercise of discretion for

abuse. Notwithstanding the obvious similarities between

Sang Goo Park and his case, Abdulla presents no argument

explaining why a different outcome should result in his case.

Nor can we discern one.

In concluding that, as a general matter, we lack

jurisdiction to review the BIA’s decision not to self-certify an

appeal, we join the other Courts of Appeals to have

considered this issue — the Courts of Appeals for the Second,

Eighth, Ninth, and Tenth Circuits. See Idrees v. Barr, 923

F.3d 539, 543 (9th Cir. 2019) (“Because we do not have

jurisdiction to review the IJ and BIA’s decision not to certify

[the petitioner’s] . . . claim, we dismiss his appeal of the

failure to certify.”); Vela-Estrada v. Lynch, 817 F.3d 69, 71

(2d Cir. 2016) (per curiam) (same); Liadov v. Mukasey, 518

F.3d 1003, 1011 (8th Cir. 2008) (concluding that “the BIA’s

refusal to self-certify was an unreviewable action committed

to the agency’s discretion”); Mahamat v. Gonzales, 430 F.3d

1281, 1284 (10th Cir. 2005) (holding that “insofar as [the

petitioner] argues that the BIA should have certified his case

for review under 8 C.F.R. § 1003.1(c),” the court “lack[s]

jurisdiction”). And while our sister Courts of Appeals have

identified certain limited exceptions to this rule, those

exceptions largely track those we identified in Sang Goo

Park. Compare, e.g., Vela-Estrada, 817 F.3d at 71 n.1

11

(“Where, in denying certification, the BIA misperceives the

law or misunderstands its own jurisdiction, it is appropriate to

remand to allow the BIA to consider its authority.”), with

Sang Goo Park, 846 F.3d at 651 (“[W]hen the BIA relies on

an incorrect legal premise in denying a motion to reopen sua

sponte . . . . we may exercise jurisdiction . . . and remand to

the BIA so that it may exercise its sua sponte authority under

the correct legal framework.” (citation omitted)). Compare

also Idrees, 923 F.3d at 543 n.3 (“We do not hold that judicial

review of the BIA’s refusal to certify a case is never

appropriate. In other contexts, we have held that, even where

a regulation commits a matter to agency discretion, the court

may review the decision if there is ‘law to apply’ in doing

so.” (citation omitted)), with Sang Goo Park, 846 F.3d at 653

(identifying the “settled course exception” to our lack of

jurisdiction to review the BIA’s denial of a motion to reopen

sua sponte). Thus, for the same reasons that Sang Goo Park’s

exceptions do not permit review of Abdulla’s claim, the

exceptions identified by our sister Courts of Appeals are also

unavailing.

We conclude that we lack jurisdiction over Abdulla’s

claim that the BIA erred in declining to self-certify his late-

filed appeal. We therefore will dismiss the petition for review

for lack of jurisdiction as to this claim.

IV.

Abdulla next argues that the immigration court lacked

jurisdiction over his proceeding because DHS failed to prove

his removability for having committed an aggravated felony

by clear and convincing evidence, relying on the Supreme

Court’s decision in Nijhawan v. Holder, 557 U.S. 29 (2009).

But Nijhawan does not stand for the proposition that the

12

immigration court lacks jurisdiction over cases in which DHS

fails to prove removability. A purported failure by the

government to meet the burden of proof is not a jurisdictional

issue, but rather a challenge to the merits of the BIA’s

removal order. See, e.g., Dwumaah v. Att’y Gen., 609 F.3d

586, 589 (3d Cir. 2010) (per curiam) (considering merits of a

claim that DHS failed to meet its burden of proof to show

removability).

The Government responds that we cannot consider

Abdulla’s claim for a different reason: because he failed to

file his BIA appeal on time, Abdulla did not exhaust available

administrative remedies as to this and other claims he wished

to raise in his BIA appeal. 5 In support of this proposition, the

Government cites our decision in Bejar v. Ashcroft, 324 F.3d

127 (3d Cir. 2003), in which we noted that 8 U.S.C. § 1252

requires the exhaustion of administrative remedies “prior to

seeking judicial review of a final . . . removal order” and held

that the “failure [to] timely . . . appeal to the BIA . . .

constitutes a failure to exhaust administrative remedies.” Id.

at 132. Abdulla replies that he exhausted administrative

remedies by raising his claims to the BIA in his untimely

filing, because that filing “demonstrat[ed] exceptional

circumstances and ineffective assistance of counsel.”

Abdulla Reply Br. 8.

Abdulla does not address Bejar but instead relies on

our holding in Lin v. Attorney General, 543 F.3d 114 (3d Cir.

2008), that “so long as an immigration petitioner makes some

effort, however insufficient, to place the Board on notice of a

5

Abdulla wished to appeal the denial of asylum,

withholding of removal, and CAT protection and to pursue a

waiver of inadmissibility under 8 U.S.C. § 1182(h).

13

straightforward issue being raised on appeal, a petitioner is

deemed to have exhausted her administrative remedies.” Id.

at 121 (quoting Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d

Cir. 2006)), abrogated on other grounds by, Santos-Zacaria v.

Garland, 598 U.S. 411 (2023). But Lin, which has since been

abrogated in part by the Supreme Court, is inapposite. Lin

did not involve a claimed failure to exhaust administrative

remedies due to an untimely appeal to the BIA. The

petitioner in Lin did timely appeal the immigration court’s

decision, and the question presented was whether the

petitioner had failed to put the BIA on notice of a specific

claim raised in the petition for review. See id. at 119–22.

Nothing in Lin calls into question our holding in Bejar

concerning the statutory exhaustion requirement. We agree

with the Government that Abdulla failed to exhaust available

administrative remedies as to several of the claims he wished

to raise in his BIA appeal, including his claim that DHS failed

to sustain its burden of proof to show his removability. See

Aguilar v. Att’y Gen., 107 F.4th 164, 168–69 (3d Cir. 2024)

(holding that, although it is not jurisdictional, the

administrative exhaustion requirement is mandatory when

properly raised by the Government). We therefore will

dismiss the petition for review with respect to Abdulla’s

unexhausted claims. 6

6

Abdulla presents a due process claim premised on his

view that his prior counsel was ineffective for failing to

present his claims of derivative citizenship and that the

defective NTA divested the immigration court of jurisdiction.

Exhaustion is not required for “colorable” due process claims

that could not have been presented to the BIA in the first

instance. See Calderon-Rosas v. Att’y Gen., 957 F.3d 378,

14

V.

Abdulla next contends that, because his NTA failed to

provide the date and time of his first hearing, the immigration

court never obtained jurisdiction over him. He relies on the

Supreme Court’s decision in Pereira v. Sessions, 585 U.S.

198 (2018), in which the Court held that a defective NTA that

fails to specify the time and place for the removal proceeding

does not trigger the “stop-time rule” set forth in 8 U.S.C.

§ 1229b(d)(1)(A). Id. at 209. Yet the stop-time rule is not at

issue in Abdulla’s case, and Pereira did not consider the

jurisdictional argument that Abdulla presents. Our Court has,

however, considered Abdulla’s precise argument — and we

have rejected it.

In Nkomo v. Attorney General, 930 F.3d at 133, we

held that an NTA that is defective under Pereira does not

deprive the immigration court of jurisdiction. We continue to

abide by this principle. See, e.g., Chavez-Chilel v. Att’y

Gen., 20 F.4th 138, 142 (3d Cir. 2021). Under Third Circuit

Internal Operating Procedure (“I.O.P.”) 9.1, we are bound by

this precedent. See Karns v. Shanahan, 879 F.3d 504, 514

(3d Cir. 2018) (“We are . . . generally obligated to follow our

precedent absent en banc reconsideration.” (citing United

States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009)). We

therefore will deny Abdulla’s jurisdictional challenge based

on the defective NTA.

384 (3d Cir. 2020) (quoting Pareja v. Att’y Gen., 615 F.3d

180, 186 (3d Cir. 2010)); Bonhometre v. Gonzales, 414 F.3d

442, 447–48 (3d Cir. 2005). Even if we excuse exhaustion as

to the due process claim, however, Abdulla’s citizenship and

NTA claims are clearly foreclosed by our precedent. See

infra.

15

VI.

We now arrive at the heart of this matter on remand —

Abdulla’s derivative citizenship claim. As we have

explained, the derivative citizenship claim was the subject of

Abdulla’s petition for certiorari to the Supreme Court and is

the reason for the Supreme Court’s order remanding the

matter to us. While we reach the same conclusion that we did

initially — that Abdulla is not a United States citizen — we

will give this claim the further consideration that is due in

light of the Supreme Court’s remand order.

Abdulla contends that the immigration court lacked

jurisdiction over him because he is a United States citizen.

Specifically, he claims that he qualified for derivative

citizenship based on his father’s naturalization under the law

at the time, former 8 U.S.C. § 1432(a). We have jurisdiction

to consider Abdulla’s citizenship claim under 8 U.S.C.

§ 1252(b)(5), which permits Courts of Appeals to review

nationality claims in which there is no genuine dispute of

material fact. 7 See Espichan, 945 F.3d at 796.

Section 1432(a) provided in relevant part:

A child born outside of the United States of

alien parents . . . becomes a citizen of the

7

In cases where there is a genuine dispute of material

fact about nationality, the Court of Appeals must transfer the

matter to the appropriate district court for a hearing. 8 U.S.C.

§ 1252(b)(5)(B). Given that Abdulla’s claim fails as a matter

of law, there is no genuine dispute of material fact in this case

to warrant a transfer to district court.

16

United States upon fulfillment of the following

conditions:

....

The naturalization of the parent having legal

custody of the child when there has been a

legal separation of the parents . . . and if

[s]uch naturalization takes place while such

child is under the age of eighteen years; and

[s]uch child is residing in the United States

pursuant to a lawful admission for permanent

residence . . . .

8 U.S.C. § 1432(a)(3)–(5) (1999) (repealed 2000) (emphasis

added). 8 For a child to be eligible for derivative citizenship

under this provision, we have concluded that the parents must

legally separate before the custodial parent becomes

naturalized. See Jordon v. Att’y Gen., 424 F.3d 320, 330 (3d

Cir. 2005) (holding, in part, that “a child seeking to establish

derivative citizenship under § 1432(a) must prove . . . ‘that

his [parent] was naturalized after a legal separation from his

[other parent]” (alteration in original) (quoting Bagot v.

Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005))). Abdulla does

not dispute that his parents were separated several years after

his father became a naturalized citizen. Under Jordon and

8

Although § 1432 was repealed in 2000, we apply the

law in effect at the time the events giving rise to the

derivative citizenship claim occurred. Morgan v. Att’y Gen.,

432 F.3d 226, 230 (3d Cir. 2005). The relevant times are the

date of Abdulla’s birth, his entry into the United States, the

date of his father’s naturalization, and the date of his parents’

separation. Section 1432 was in effect during all relevant

times. See id.

17

Bagot, the order of these two occurrences is determinative.

Applying our binding precedent, we therefore held in our

2020 opinion that Abdulla is not a United States citizen under

§ 1432.

Abdulla disagreed with this interpretation of § 1432,

contending that the BIA adopted a better view in Matter of

Baires-Larios, 24 I. & N. Dec. 467 (B.I.A. 2008), and Matter

of Douglas, 26 I. & N. Dec. 197 (B.I.A. 2013). The BIA

opined in Baires-Larios and Douglas that the statute’s use of

the word “when” is conditional, so the sequence in which the

naturalization and separation happen is inconsequential so

long as both of conditions are fulfilled. See Baires-Larios, 24

I. & N. Dec. at 470 (holding that the order in which a parent

becomes naturalized and obtains custody of the child does not

matter if both conditions are satisfied); Douglas, 26 I. & N.

Dec. at 199–200 (discussing the fact that “when” is not

defined in the INA and the dictionary reflects various

meanings of the term, including indication of a time or a

condition). Pressing this view, Abdulla sought certiorari in

the Supreme Court, which granted his petition without

opinion and vacated our judgment. The Supreme Court

directed that the remand was “for further consideration in

light of the brief filed by the Acting Solicitor General.”

Supreme Court Order 1.

The Solicitor General had argued in her 2021 Supreme

Court brief that our Abdulla opinion “overlooked” the BIA’s

opinions in Baires-Larios and Douglas, and that those agency

decisions “are entitled to deference and . . . rejected Jordon’s

interpretation of the statute.” Solicitor Gen. Br. 5. More

specifically, the Solicitor General contended that the INA is

ambiguous as to whether parental separation must occur

before naturalization or not. She further argued that the BIA

18

in Baires-Larios and Douglas reached a reasonable

interpretation of the ambiguous statute — namely, that the

order of events is irrelevant to the derivative citizenship claim

— so the BIA’s interpretation was entitled to deference and

the BIA was entitled to depart from Jordon under National

Cable & Telecommunications Ass’n v. Brand X, 545 U.S.

967 (2005).

The Court held in Brand X that “[a] court’s prior

judicial construction of a statute trumps an agency

construction otherwise entitled to Chevron[ 9] deference only

if the prior court decision holds that its construction follows

from the unambiguous terms of the statute and thus leaves no

room for agency discretion.” 545 U.S. at 982. Thus, if we

were to adhere to Brand X, we might opt to reverse our prior

position and follow the Solicitor General’s reasoning, leading

to a conclusion that Abdulla is a United States citizen. But a

major change has since taken place, the importance of which

cannot be overlooked.

The Supreme Court issued its opinion in Loper Bright

in 2024. The Court held in Loper Bright that Chevron

deference cannot be squared with the requirements of the

APA, which demand that courts, not agencies, must resolve

issues of statutory interpretation. This impacts the disposition

of Abdulla’s case because, in addition to overruling Chevron,

the Court determined that the framework of Brand X, which

compels courts to afford binding deference to an agency’s

9

In Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 843–44 (1984), the

Supreme Court held that an agency’s construction of a statute

it administers is entitled to deference, so long as the statute is

ambiguous and the agency’s construction is permissible.

19

statutory interpretation even when pre-existing judicial

precedent holds otherwise, “is the antithesis of the time

honored approach the APA prescribes.” Loper Bright 603

U.S. at 399; see also id. at 438 (Gorsuch, J., concurring)

(observing that Brand X is “just one example” of the “bad . . .

problem” caused by Chevron deference).

The Supreme Court’s opinion in Loper Bright guides

us in our review on remand, leading us to conclude that the

APA does not permit us simply to defer to the interpretation

of § 1432 that the BIA adopted in Baires-Larios and Douglas,

as the Solicitor General advocated in her brief. Instead, we

must consider independently whether our precedent in Jordon

and Bagot continues to bind us, or whether there is some legal

basis for departing from our prior determinations.

Abdulla claims that we should set aside Jordon and

Bagot in favor of the view adopted by the BIA in Baires-

Larios and Douglas because the BIA’s view is consistent with

what Abdulla contends is “the unambiguous reading of the

statutory text.” Abdulla 2d Supp. Br. 2. Upon review, we

disagree.

We are bound by the ordinary meaning of the words

Congress has chosen. INS v. Cardoza-Fonseca, 480 U.S. 421,

431 (1987). Yet the term “when” has several ordinary

meanings, and two of them — a temporal sense and a

conditional sense — reasonably could apply in this case. A

term is ambiguous “if it is subject to reasonable alternative

interpretations,” Taylor v. Cont’l Grp. Change in Control

Severance Pay Plan, 933 F.2d 1227, 1232 (3d Cir. 1991),

considering “the language itself, the specific context in which

that language is used, and the broader context of the statute as

20

a whole,” Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997) (citations omitted).

The Solicitor General observed in her brief that “the

statute is ambiguous with respect to the key interpretive

question” in this case. Solicitor Gen. Br. 9. We agree that the

text is ambiguous, and our review of the statute in context

does not eliminate the ambiguity, particularly because

“when” is an undefined term and no other provision conflicts

with or becomes superfluous under either of its two

reasonable meanings. In Douglas, the BIA conducted a

helpful analysis of the word “when” in § 1432(a)(3), taking

into account the interpretive case law and the statute’s

legislative history. 26 I. & N. Dec. at 199–200. Implicitly

acknowledging that our Court’s interpretation as set forth in

Jordon and Bagot is reasonable, the BIA ultimately concluded

that “when” in § 1432(a)(3) “is ambiguous.” Id. at 201.

Although we are not required to defer to the BIA’s analysis,

we view it as persuasive in considering the issue of ambiguity

here.

Abdulla contends that § 1432(a)(3)’s “when” is

unambiguous because Congress could have chosen to use the

word “after” to reflect a temporal requirement instead of the

more open-ended “when,” so the word choice reveals that

Congress did not intend a sequencing requirement. See

Abdulla 1st Supp. Br. 6. But this argument cuts both ways, as

Congress also could have chosen to use “if” rather than

“when.” Having chosen neither, this argument does not

clarify the intended meaning of the word that Congress did

choose. Given the ambiguous ordinary meaning of the term

“when,” the absence of a statutory definition, and the lack of

clarity after considering the statutory context, we conclude

that “when” is ambiguous in § 1432(a)(3) and therefore reject

21

Abdulla’s suggestion that we may decide this case based on

an “unambiguous reading of the statutory text.” Id. at 2.

Given this ambiguity, we next consider whether

Abdulla has presented persuasive grounds to diverge from our

precedential decisions in Jordon and Bagot. Abdulla

contends that we need not adhere to Jordon and Bagot

because, in his view, they are not controlling. He argues that

those opinions did not provide a “reasoned consideration” of

the statutory text of § 1432(a)(3) and therefore do not bind us.

Abdulla 2d Supp. Br. 1 (quoting U.S. Bancorp Mortg. Co. v.

Bonner Mall P’ship, 513 U.S. 18, 24 (1994)).

In Bagot, we interpreted the meaning of the phrase

“legal custody” in § 1432(a)(3). We accepted the parties’

view that the term “when” in § 1432(a)(3) was used in the

temporal, sequential sense. 398 F.3d at 257. But we merely

adopted a concession; we did not analyze the term. The

meaning of “when” did not receive our “full and careful

consideration,” and it was “peripheral” to the holding

concerning the meaning of “legal custody.” See In re

McDonald, 205 F.3d 606, 612 (3d Cir. 2000) (quoting Sarnoff

v. Am. Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir.

1986). Indeed, our adoption of the parties’ concession about

the meaning of “when” “could [be] deleted without seriously

impairing the analytical foundations of the holding” of Bagot.

Id. (quoting Sarnoff, 798 F.2d at1084). Our adoption of the

parties’ concession in Bagot as to the meaning of “when” was

dictum. We therefore agree with Abdulla that we are not

bound by it.

Our opinion in Jordon, however, is different from

Bagot. Jordon squarely presented the question we face today

— the meaning of “when” in § 1432(a)(3). We concluded in

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Jordon that we did not need to “labor over the proper

construction of § 1432(a)(3)” because Bagot “set[] forth the

controlling interpretation” of that provision. Jordon, 424 F.3d

at 329. Our Jordon opinion took the view that Bagot made it

“crystal clear” that § 1432(a)(3) requires that the parent be

“naturalized after a legal separation.” Id. at 330 (emphasis

omitted).

Abdulla protests that Jordon is not binding because it

erroneously embraced Bagot’s dictum as controlling.

Abdulla 1st Supp. Br. 8. Yet while we did not provide the

exhaustive analysis of the meaning of the term “when” that

Abdulla would prefer, it is apparent that our holding in Jordon

cannot be overlooked as dictum: our interpretation of the

term “when” was dispositive to the case and cannot “[be]

deleted without seriously impairing the analytical foundations

of the holding.” McDonald, 205 F.3d at 612 (quoting

Sarnoff, 798 F.2d at 1084); see also United States v. Mallory,

765 F.3d 373, 381 (3d Cir. 2014) (defining dictum as a

statement that “served no part in the analysis” and can be

deleted without substantially impairing the opinion’s

reasoning). Our ruling in Jordon as to the meaning of “when”

in § 1432(a)(3) is therefore binding.

Under Third Circuit I.O.P. 9.1, we must apply our

holding in Jordon. Abdulla does not dispute that his

derivative citizenship claim fails under Jordon because his

parents separated after his father became naturalized. See

Jordon, 424 F.3d at 330. Absent a contrary decision on en

banc review or clear guidance from the Supreme Court on the

meaning of “when” in § 1432(a)(3), we will follow Jordon.

See Karns, 879 F.3d at 514–15. Thus, upon remand and after

careful consideration, we once again will deny Abdulla’s

derivative citizenship claim as foreclosed by our precedent.

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VII.

For the foregoing reasons, we will dismiss the petition

for review in part for lack of jurisdiction and in part for

failure to exhaust administrative remedies, and deny it in

remaining part because Abdulla’s claims lack merit.

24