Dubon v. Jaddou

109 F.4th 307

Isai Rivas DUBON, Plaintiff - Appellant, v. Ur M. JADDOU, Director, United States Citizenship and Immigration Services, Defendant - Appellee.

No. 22-2280

United States Court of Appeals, Fourth Circuit

Argued: January 24, 2024

Decided: July 29, 2024

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:22-cv-00447-LCB-JLW)

ARGUED: Bradley B. Banias, BANIAS LAW, LLC, Charleston, South Carolina, for Appellant. Brandon D. Zeller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Sandra J. Hairston, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Before HARRIS, RICHARDSON, and HEYTENS, Circuit Judges.

Motion to dismiss appeal granted by published opinion. Judge Harris wrote the opinion, in which Judge Richardson and Judge Heytens joined.

PAMELA HARRIS, Circuit Judge:

Isai Rivas Dubon, a non-citizen who has applied for naturalization, seeks to appeal a district court order issued under 8 U.S.C. § 1447(b) remanding his application to the United States Citizenship and Immigration Services for a decision on the merits. The government moved to dismiss Dubon's appeal for lack of jurisdiction, arguing that a remand order under § 1447(b) is neither a final decision nor otherwise appealable under the collateral order doctrine. We agree with the government and therefore dismiss Dubon's appeal.

I.

Isai Rivas Dubon, a native and citizen of Honduras, entered the United States without inspection or admission in or around January 1999. Shortly thereafter, the government placed Dubon in removal proceedings, and in May 2000, Dubon was ordered removed. For reasons that are unclear from the record, the government never executed this removal order and Dubon remained in the country.

Years later and after successfully petitioning for adjustment of status, Dubon became a lawful permanent resident. Once he had lived in the United States with that status for five years, Dubon filed for naturalization in August 2020. See 8 U.S.C. § 1427(a)(1) (establishing five-year residency requirement for lawful permanent residents seeking naturalization). In his application, Dubon explained that although he had been arrested the year prior for violating a domestic violence protection order, the accompanying charge had ultimately been dismissed. Cf. 8 U.S.C. § 1427(a)(3) (requiring that naturalization applicant be of "good moral character" during five-year period preceding application).

The United States Citizenship and Immigration Services ("USCIS") began to process Dubon's citizenship application, and in March 2021, the agency interviewed Dubon for naturalization. See 8 U.S.C. § 1446(b). But for the next 14 months, Dubon alleges, the agency took no action.

Faced with this delay, Dubon filed the instant suit in federal district court in June 2022, invoking 8 U.S.C. § 1447(b). Under that provision, a naturalization applicant may seek a hearing and decision from a district court if there has been a prolonged delay at USCIS - specifically, if USCIS fails to adjudicate an application within 120 days of conducting an examination. Once an applicant files in court for a hearing, the court assumes jurisdiction, and "may either determine the matter [itself] or remand the matter" to USCIS "with appropriate instructions." 8 U.S.C. § 1447(b).

Dubon urged the district court to decide his naturalization application itself. The government, on the other hand, moved the district court to remand the matter back to the agency, committing that USCIS would adjudicate Dubon's petition within fifteen days of such an order. To explain its previous delay, USCIS pointed to Dubon's removal order from 2000, which had come to the agency's attention during its review of Dubon's application. That order was eventually terminated at Dubon's request, but not until August 2022 - and while the order was still in effect, the agency told the district court, it was barred by statute from granting Dubon's application. See 8 U.S.C. § 1429 (prohibiting naturalization of applicants subject to "a final finding of deportability pursuant to a warrant of arrest").

The district court agreed with USCIS. On November 15, 2022, the court issued an order granting the agency's remand motion and instructing it to decide Dubon's application within 15 days. Dubon v. Jaddou, No. 1:22CV447, 2022 WL 16949734, at *6 (M.D.N.C. Nov. 15, 2022). As the district court explained, under § 1447(b), whether to rule on an application itself or remand to USCIS is a matter of court discretion. Id. at *1. But in most cases, courts elect to remand to the agency, id. at *2, taking advantage of USCIS's "special expertise" and conserving judicial resources, id. at *4. And there was no reason to depart from that practical approach here, the court determined: The agency had identified a good reason for its delay, and it had assured the court that it could issue a quick decision on remand. Id. at *2. Under those circumstances, the court concluded, it was appropriate to remand the matter to USCIS - "the agency to which Congress gave primary responsibility for adjudicating naturalization applications." Id. at *4.

Consistent with the district court's 15-day window, USCIS adjudicated Dubon's application six days later, denying naturalization on November 21, 2022. The problem was Dubon's 2019 charge for violating a domestic violence protection order. Although the charge ultimately had been dismissed, the agency determined that Dubon's arrest and admission of guilt constituted a "conviction" as defined by immigration law. See 8 U.S.C. § 1101(a)(48)(A). That meant, according to the agency, that Dubon had committed an unlawful act in the statutory five-year period and could not demonstrate the "good moral character" required for naturalization. See 8 U.S.C. § 1427(a)(3). The agency filed a notice of compliance with the district court, informing the court of its prompt decision, and the court then issued a judgment terminating Dubon's action.

Dubon timely appealed, challenging the district court's remand order on the ground that the agency had not shown good cause for its prior delay. The government moved to dismiss his appeal for lack of jurisdiction, and Dubon responded, opposing the motion. After we calendared the case for argument, the government filed a brief reiterating its position on jurisdiction and, in the alternative, defending the district court's remand order on the merits.

II.

It is important to be clear about the nature of Dubon's appeal. Dubon is not appealing the denial of his naturalization application by USCIS - an appeal that would run first through an administrative hearing before a reviewing officer and then through federal district court. See 8 U.S.C. § 1447(a) (providing for administrative review of denial by hearing officer); 8 U.S.C. § 1421(c) (providing for review of denial by district court after exhaustion of administrative remedies); Etape v. Chertoff, 497 F.3d 379, 386 (4th Cir. 2007).¹ Instead, he seeks review of the district court's remand order under § 1447(b), arguing that the agency's prior delay was unjustified and that he was therefore entitled to have his application decided by the district court. Whatever the merits of that argument, we may consider it only if our appellate jurisdiction extends to a § 1447(b) remand order. See Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015) (emphasizing court's obligation to confirm its appellate jurisdiction before considering the merits of an appeal).

Dubon advances two grounds on which we might have jurisdiction to review the district court's remand order. First, Dubon argues, a § 1447(b) remand is a "final decision" generally appealable under 28 U.S.C. § 1291; and second, even if it is not, we may review it under the collateral order doctrine.² But Dubon can point to no case in which an appellate court has reviewed a § 1447(b) remand - under either of those theories or any other - and we have located no such authority. Instead, it seems clear that a district court remand order under § 1447(b) is neither a final order nor an appealable collateral order. We thus grant the government's motion to dismiss this appeal for want of jurisdiction.

A.

Section 1291 gives us jurisdiction over appeals from "final decisions" of the district courts in our circuit. 28 U.S.C. § 1291; see Britt v. DeJoy, 45 F.4th 790, 792 (4th Cir. 2022). A "final decision" is generally "one which ends the litigation on the merits." Britt, 45 F.4th at 792 (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). On the flip side, "so long as the matter remains open, unfinished or inconclusive," there is no final decision under this definition, and there ordinarily can be "no intrusion by appeal." Id. (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)) (cleaned up).

Simply stating the standard may be enough to explain why it is not met here. The district court's remand order did not "end the litigation on the merits" of Dubon's naturalization petition. It did the opposite: It declined to address the merits at all, and instead provided for further adjudication of the merits before the agency. When the district court issued its order, in other words, a determination on the crucial issue in this litigation - Dubon's eligibility to naturalize - was yet to come. And because that question remained "open" and "unfinished," the district court's § 1447(b) remand was not a "final decision" as that term generally is defined under § 1291.

Indeed, we said as much in Ge v. United States Citizenship & Immigration Services, 20 F.4th 147, 154 (4th Cir. 2021), where we described a § 1447(b) remand order as "clearly interlocutory," rather than final. Again, the point seemed to us straightforward: A § 1447(b) remand does not determine the merits of a...