Donnelly v. CARRP

20-4243
Donnelly v. CARRP
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
No. 20-4243
P ATRICK J. D ONNELLY ,
Petitioner-Appellant,
v.
CONTROLLED APPLICATION REVIEW AND RESOLUTION PROGRAM
UNIT , UNITED STATES C ITIZENSHIP AND IMMIGRATION S ERVICES ,
THOMAS C IOPPA, D ISTRICT D IRECTOR OF THE N EW YORK FIELD
O FFICE OF THE UNITED S TATES C ITIZENSHIP AND IMMIGRATION
S ERVICES , UR M. JADDOU, D IRECTOR OF THE UNITED S TATES
C ITIZENSHIP AND IMMIGRATION S ERVICES , ALEJANDRO M AYORKAS ,
S ECRETARY OF THE DEPARTMENT OF H OMELAND S ECURITY , M ERRICK
B. G ARLAND, UNITED S TATES ATTORNEY G ENERAL,
Respondents-Appellees.*
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: FEBRUARY 28, 2022
D ECIDED: J UNE 14, 2022
* The Clerk of Court is directed to amend the caption as set forth above.

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Before: WALKER , MENASHI , and L EE , 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
8 U.S.C. § 1421(c). The district court dismissed the case for lack of
subject-matter jurisdiction because Donnelly had failed to attend an
agency hearing to review the denial and, according to the district
court, § 1421(c)’s exhaustion requirement, which included the
hearing, was jurisdictional. We disagree that § 1421(c) imposes a
jurisdictional requirement. We hold that it is instead a mandatory
claim-processing rule. However, we agree with the district court that
Donnelly did not satisfy § 1421(c)’s exhaustion requirement. Because
the government properly raised Donnelly’s failure to exhaust,
§ 1421(c) precludes his claim. Donnelly therefore failed to state a
claim, and we affirm the judgment of the district court on that ground.
EAMONN D ORNAN, Dornan & Associates PLLC, Yonkers,
NY (Gerard G. McCabe, FG McCabe & Associates, New
York, NY, on the brief), for Petitioner-Appellant.
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.

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20-4243
Donnelly v. CARRP
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 convoluted 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 8 U.S.C. § 1447(a). After Donnelly failed to appear, the
agency affirmed the denial of his application. Donnelly brought this
action seeking review in the U.S. District Court for the Southern
District of New York, alleging, among other things, that the agency
failed to follow its own procedures in denying his application. The
district court held that, by not attending the hearing, Donnelly failed
to exhaust his administrative remedies as required by 8 U.S.C.
§ 1421(c). Donnelly v. CARRP, 503 F. Supp. 3d 100, 105 (S.D.N.Y. 2020).
Because the district court held the exhaustion requirement to be
jurisdictional, the district court dismissed the case for lack of subject-
matter jurisdiction. Id. at 105-06.
We hold that the district court erred when it treated 8 U.S.C.
§ 1421(c) as a jurisdictional requirement. In keeping with the Supreme
Court’s attempts “to bring some discipline to the use of the term
‘jurisdiction,’” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153
(2013) (internal quotation marks omitted), we conclude that § 1421(c)
lacks the clear statement we require before labeling a limitation as
“jurisdictional.” At the same time, we hold that Donnelly’s claim may
not proceed. “[A] rule may be mandatory without being
jurisdictional,” Fort Bend County v. Davis, 139 S. Ct. 1843, 1852 (2019),

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and § 1421(c) is such a rule. Because the government properly raised
Donnelly’s failure to attend the hearing as a failure to exhaust,
§ 1421(c)’s exhaustion requirement must be enforced. Donnelly’s
noncompliance with the exhaustion requirement means that he failed
to state a claim, and we affirm the judgment of the district court on
that ground.
BACKGROUND
I
The Constitution provides that “Congress shall have Power …
[t]o establish an uniform Rule of Naturalization.” U.S. C ONST . art. I,
§ 8. In the Immigration and Nationality Act, Congress set out the
eligibility requirements for aliens seeking naturalization. Those
requirements include, among other things, that the alien “has been
lawfully admitted to the United States for permanent residence in
accordance with all applicable provisions of this chapter,” 8 U.S.C.
§ 1429, that the alien “has resided continuously, after being lawfully
admitted for permanent residence, within the United States for at
least five years,” id. § 1427(a), and that the alien “during all the
periods referred to in [8 U.S.C. § 1427(a)] has been and still is a person
of good moral character,” id.
Additionally, since 2002, Congress has provided that an alien
must seek naturalization by filing an application with USCIS.
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
After filing an application, the applicant is subject to a background
investigation, 8 U.S.C. § 1446(a), and is examined under oath or
affirmation by a USCIS officer, 8 C.F.R. § 335.2. Following the
examination, the officer either grants or denies the application. Id.
§ 316.14(b).

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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.” 8 U.S.C. § 1447(a). According to regulations, such a request
must be filed with USCIS “within thirty days after the applicant
receives the notice of denial,” and “[u]pon receipt of a timely request
for a hearing, USCIS will schedule a review hearing, within a
reasonable period of time not to exceed 180 days from the date upon
which the appeal is filed.” 8 C.F.R. § 336.2(a), (b). At that hearing,
“[t]he reviewing officer [has] the authority and discretion to review
the application for naturalization, to examine the applicant, and either
to affirm the findings and determination of the original examining
officer or to re-determine the original decision in whole or in part.”
Id. § 336.2(b). The officer may “receive new evidence or take …
additional testimony,” and to do so the officer “may, in his or her
discretion, conduct a full de novo hearing or may utilize a less formal
review procedure.” Id.
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 8 U.S.C. § 1421(a)).1 Even
so, there are two statutory avenues for an applicant to seek
naturalization from a federal court. First, under 8 U.S.C. § 1447(b), if
an initial decision is not rendered within 120 days of the examination
1 Congress “transferred authority (1) to commence removal proceedings
and (2) to adjudicate applications for naturalization from the Attorney
General to the Secretary of the Department of Homeland Security” in the
Homeland Security Act of 2002. Ajlani v. Chertoff, 545 F.3d 229, 231 n.2 (2d
Cir. 2008).

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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 determine the matter or remand the matter
… to [USCIS].” 8 U.S.C. § 1447(b).
Second, Congress has provided an avenue for seeking
naturalization in federal court after an unsuccessful administrative
appeal of an initial denial. Under 8 U.S.C. § 1421(c),
[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, § 1421(c) “offers an expansive form of
judicial review.” Moya v. DHS, 975 F.3d 120, 127 (2d Cir. 2020).
According to its terms, “[s]uch review shall be de novo, and the court
shall make its own findings of fact and conclusions of law and shall,
at the request of the petitioner, conduct a hearing de novo on the
application.” 8 U.S.C. § 1421(c); see also Chan v. Gantner, 464 F.3d 289,
291 (2d Cir. 2006) (noting that § 1421(c)’s “grant of authority is
unusual in its scope”) (quoting Nagahi v. INS, 219 F.3d 1166, 1169 (10th
Cir. 2000)).
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)

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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, for 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

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“[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 8 U.S.C. § 1421. However, while that
case was pending in the district court, the parties stipulated to a
dismissal of the action without prejudice on November 16, 2017. As
part of the stipulation, USCIS agreed to reopen sua sponte Donnelly’s
naturalization proceeding and to “not deny [Donnelly’s] application
for naturalization based solely on his failure to previously disclose his
employment with CSH Supply Corporation.” Stipulation and Order
of Dismissal, Donnelly v. Coven, No. 1:17-CV-00321 (S.D.N.Y. Nov. 16,
2017), ECF No. 28.

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So Donnelly went through the process 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
8 U.S.C. § 1429, “no person shall be naturalized unless he has been
lawfully admitted to the United States for permanent residence in
accordance with all applicable provisions of this chapter.” According
to the agency, Donnelly lied on his I-485 form, and he was therefore
ineligible for naturalization under § 1429. Additionally, the agency

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concluded that Donnelly was ineligible for naturalization because he
was “unable to meet the good moral character requirement for
naturalization.” App’x 48; see 8 U.S.C. § 1427(a) (“No person … shall
be naturalized unless such applicant … during all the periods referred
to in this subsection has been and still is a person of good moral
character.”).
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 8 C.F.R. § 336.2(b), Donnelly filed a petition
seeking review of the denial of his application in federal district court
on May 28, 2019. About three months later, USCIS scheduled a
hearing for September 17. In its notice to Donnelly, the agency
directed that “[i]f for any reason you cannot keep this appointment,
return this letter immediately to the [USCIS] office address listed
above with your explanation and request for a new appointment
time.” App’x 255. According to the notice, failure to appear “without
prior notification and without good cause may result in the denial of
your application.” Id. In response, Donnelly sent a letter to USCIS
asserting that the district court “now has either exclusive or

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concurrent jurisdiction over this matter, and … it would be entirely
unlawful and/or inappropriate to proceed with this hearing pending
the resolution of [the] federal court petition.” Id. at 256. He therefore
requested “that this hearing be adjourned generally until the matter
is resolved” by the district court. Id.
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
2 The record does not indicate that USCIS responded to Donnelly’s letter.
3 Because USCIS found that Donnelly “procured [his] … adjustment … by
fraud or by willfully misrepresenting a material fact,” DHS subsequently
placed Donnelly in removal proceedings. App’x 258-60.
4 The government argues on appeal that we may consider only the initial
petition because the amended petition includes events that occurred after
the case was filed. This court “ha[s] never squarely addressed whether
events occurring after the filing of a complaint may cure a jurisdictional

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a judgment that [he] is entitled to be naturalized” and to “conduct a
naturalization hearing in this matter de novo pursuant to 8 [U.S.C.]
§ 1421(c).” Id. at 224. The government moved to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that
§ 1421(c)’s exhaustion requirement is jurisdictional and that
Donnelly’s failure to attend the hearing meant that he failed to fulfill
that requirement. The government also argued that the ongoing
removal proceedings meant that the action must be dismissed for
failure to state a claim. See Ajlani, 545 F.3d at 241 (“[A]n alien cannot
secure naturalization from either the district court or the Attorney
General while removal proceedings are pending.”).
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] § 1421(c)’s exhaustion requirement as
jurisdictional and not as a claims-processing rule.” Donnelly, 503
F. Supp. 3d at 104. According to the district court, reviewing
Donnelly’s claim when he “declined to attend his scheduled hearing”
would “necessitate disregarding § 1421(c)’s demand for how
petitioners participate in the administrative process.” Id. at 105. The
defect that existed at the time of initial filing.” Saleh v. Sulka Trading Ltd.,
957 F.3d 348, 354 (2d Cir. 2020). Because we hold that § 1421(c) is a
nonjurisdictional rule, we need not resolve that issue. Under Federal Rule
of Civil Procedure 15(d), “the court may … permit a party to serve a
supplemental pleading setting out any … event that happened after the
date of the pleading to be supplemented,” and “[t]he court may permit
supplementation even though the original pleading is defective in stating a
claim.” We therefore consider Donnelly’s amended petition in deciding this
case.

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district court therefore dismissed the case for lack of subject-matter
jurisdiction. Id. Donnelly timely appealed.
DISCUSSION
Donnelly raises two arguments on appeal. First, he contends
that the district court erred in holding that he did not satisfy
§ 1421(c)’s exhaustion requirement. Second, Donnelly argues in the
alternative that the exhaustion requirement of § 1421(c) is a claim-
processing rule, not a jurisdictional one, and is therefore subject to
equitable exceptions. We address each argument in turn.
I
Donnelly first argues that the district court erred in holding that
he failed to comply with § 1421(c). As noted above, § 1421(c) provides
that “[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.” This case presents the question whether, despite Donnelly’s
failure to attend his hearing, the denial of his application was affirmed
“after a hearing before an immigration officer.” 8 U.S.C. § 1421(c).
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 § 1421(c)’s command to obtain “a
hearing” before seeking judicial review.

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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 § 1421(c), the legal context here is
administrative exhaustion. See, e.g., Moya, 975 F.3d at 127 (holding
that the plaintiffs “may not sue until they have satisfied” “[s]ection
1421(c)’s exhaustion requirement”); Escaler, 582 F.3d at 292 (“Section
1421(c) … requires the exhaustion of administrative remedies prior to
seeking [judicial review].”).
“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 administrative appeal because his appearance at the

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hearing would have given him “the opportunity to provide
additional documents or briefs.” App’x 241 (internal quotation marks
omitted). By failing to appear at the hearing, therefore, Donnelly
deprived the agency of “an opportunity to correct its own mistakes”
and “disregard[ed] … the agency’s procedures.” Woodford, 548 U.S. at
89 (alteration omitted); see also McKart v. United States, 395 U.S. 185,
193-94 (1969) (“[S]ince agency decisions are frequently of a
discretionary nature or frequently require expertise, the agency
should be given the first chance to exercise that discretion or to apply
that expertise.”).
Donnelly’s failure to attend the hearing also undermined the
purpose of § 1421(c) to promote efficiency. This court has previously
observed that Congress “permitted applicants to petition the district
court only after the application has already been reviewed by the
INS” in order “to minimize the strain on judicial resources.” Moya,
975 F.3d at 134 (internal quotation marks omitted). Had Donnelly
attended his hearing, he might have obtained relief without coming
to the district court. The system Donnelly proposes—in which an
applicant may file an administrative appeal without fully prosecuting
it and still seek relief from the district court—would waste both
judicial and agency resources.
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.”
8 C.F.R. § 336.2(b). The officer would have had “the authority and

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discretion” to “examine the applicant” and to “conduct a full de novo
hearing.” Id. Given these possibilities, merely filing an administrative
appeal cannot qualify as a “hearing before an immigration officer.”
8 U.S.C. § 1421(c).
Accordingly, we are unconvinced that Donnelly’s act of
“fil[ing] a fully briefed notice of appeal” satisfies § 1421(c)’s
exhaustion requirement. Appellant’s Br. 20. We therefore affirm the
district court’s holding that Donnelly failed to satisfy § 1421(c)’s
exhaustion requirement when he did not appear at the hearing.
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 § 1421(c) sets out a jurisdictional
requirement. Rather, Donnelly asserts, § 1421(c) is a mandatory claim-
processing rule and we may review his application under a “manifest
injustice” exception to that rule. Appellant’s Br. 21, 24.
We agree with Donnelly that § 1421(c) is a nonjurisdictional
rule and that the district court erred when it granted the government’s
motion to dismiss under Rule 12(b)(1). But this holding does not save
Donnelly’s claim. Mandatory claim-processing rules are mandatory;
because he did not comply with § 1421(c) and the government has not
waived its requirements, Donnelly cannot state a claim. We therefore
affirm the district court’s judgment.
A
The question whether a procedural rule is “jurisdictional” is
“not merely semantic but one of considerable practical importance for

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judges and litigants.” Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
Jurisdictional rules “govern a court’s adjudicatory authority”;
nonjurisdictional rules—such as claim-processing rules—do not.
Matuszak v. Comm’r of Internal Revenue, 862 F.3d 192, 195-96 (2d Cir.
2017) (internal quotation marks omitted). Because of that distinction,
“[o]bjections based on nonjurisdictional claim-processing rules may
be waived or forfeited, while a jurisdictional issue can be raised at any
time throughout the proceedings.” In re Indu Craft, Inc., 749 F.3d 107,
112 n.7 (2d Cir. 2014).
In Arbaugh v. Y & H Corp., the Supreme Court provided a
“readily administrable bright line” rule for determining whether a
statutory limitation is a jurisdictional rule or a nonjurisdictional rule.
546 U.S. 500, 516 (2006). “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
nonjurisdictional 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 § 1421(c) is a mandatory claim-processing
rule, not a jurisdictional one. The language of § 1421(c) “neither

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speaks in jurisdictional terms nor refers in any way to the jurisdiction
of the courts.” United States v. Saladino, 7 F.4th 120, 123 (2d Cir. 2021)
(per curiam) (internal quotation marks and alterations omitted)
(quoting United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020)). The
omission of any reference to “jurisdiction” stands out when compared
to § 1447, which provides that, if the agency fails to make a timely
initial determination on a naturalization application, “the applicant
may apply to the United States district court” and “[s]uch court has
jurisdiction over the matter.” 8 U.S.C. § 1447(b) (emphasis added). If
Congress wanted to speak in jurisdictional terms in § 1421, § 1447
demonstrates that it knew how to do so.
Neither does § 1421(c) speak in jurisdictional terms merely
because it refers to “[j]udicial review” and “review.” The
Administrative Procedure Act (“APA”) also provides that certain
agency actions “are subject to judicial review,” 5 U.S.C. § 704, but the
Supreme Court has made clear that “[t]he judicial review provisions
of the APA are not jurisdictional.” Air Courier Conf. v. Am. Postal
Workers Union, 498 U.S. 517, 523 n.3 (1991). Because a prohibition on
“judicial review” can be read as providing the requirements for a
cause of action, it cannot provide the clear statement we require to
establish a limitation as jurisdictional. See id. (“Whether a cause of
action exists is not a question of jurisdiction, and may be assumed
without being decided.”).
The government argues that our decision in Escaler has already
made clear that § 1421(c) is a jurisdictional rule. In Escaler, this court
held that the applicant Jaime Escaler could not seek review in federal
district court because he chose not to pursue an administrative appeal
of the denial of his naturalization application. 582 F.3d at 290, 293. We

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stated that “[t]he principal issue before us … is whether appellant
needed to exhaust his administrative remedies.” Id. at 291. We held
that Escaler had to do so because “[w]hen, as here, the exhaustion
requirement is established by statute … the requirement is
mandatory, and courts are not free to dispense with it.” Id. at 292
(internal quotation marks and alteration omitted). And we concluded
our analysis by stating that Escaler’s “conceded failure to take
advantage of [the administrative appeals process] to litigate his
claims negates our jurisdiction over the present action.” Id. at 293.
According to the government, that last phrase—“negates our
jurisdiction”—means that this court has already decided that
§ 1421(c) is a jurisdictional rule.
We disagree. “[T]he legal lexicon knows no word more
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).

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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 use 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 § 1421(c) prescribes a nonjurisdictional
claim-processing rule.
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 does not mean that it is not
mandatory.” Gonzalez v. Thaler, 565 U.S. 134, 146 (2012). We have
previously noted that “[s]tatutory exhaustion requirements are
mandatory, and courts are not free to dispense with them.” Bastek v.

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Fed. Crop Ins. Corp., 145 F.3d 90, 94 (2d Cir. 1998). Section 1421(c)’s
exhaustion requirement is statutory, and therefore it is mandatory.
Mandatory claim-processing rules “seek to promote the
orderly progress of litigation by requiring that the parties take certain
procedural steps at certain specified times.” Henderson, 562 U.S. at
435. Thus, how § 1421(c) applies is “in essence a question whether
Congress intended to allow a certain cause of action” against the
agency. Air Courier Conf., 498 U.S. at 523 n.3. Unlike jurisdictional
requirements, mandatory claim-processing requirements may be
waived or forfeited—such as when “the party asserting the rule waits
too long to raise the point.” Manrique v. United States, 137 S. Ct. 1266,
1272 (2017) (quoting Eberhart v. United States, 546 U.S. 12, 15 (2005)
(per curiam)). And because mandatory claim-processing rules are not
jurisdictional, we may assume that such rules are satisfied to resolve
the case on other grounds. See Steel Co., 523 U.S. at 94 (noting that
“assuming jurisdiction for the purpose of deciding the merits …
carries the courts beyond the bounds of authorized judicial action”)
(internal quotation marks omitted).
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

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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
injustice” exception into § 1421(c)’s exhaustion requirement is
therefore unavailing. “[W]e are not free to rewrite the statutory text”
if “Congress’s intent, in enacting [a] statute, was to require plaintiffs
to exhaust all administrative remedies before bringing suit in federal
court.” Bastek, 145 F.3d at 94-95. In Booth v. Churner, 532 U.S. 731, 741
n.6 (2001), the Supreme Court rejected the prisoner petitioner’s
argument that courts should read a futility exception into the
exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). In that case, the Court refused to create an extra-statutory
exception for the simple reason that “Congress has mandated
exhaustion,” and “we will not read futility or other exceptions into
statutory exhaustion requirements where Congress has provided
otherwise.” Booth, 532 U.S. at 741 n.6. Like § 1997e(a), § 1421(c) is a
statutory exhaustion requirement, and we may not create exceptions
to it.
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 § 1421(c). According to Donnelly,
Lin Zhong asserted that there could be a “manifest injustice” exception
even when the exhaustion requirement is required by statute and
jurisdictional. 480 F.3d at 107 n.1. Because § 1421(c) is not even
jurisdictional, Donnelly contends, there should be a similar exception
by which a court may review the denial of Donnelly’s application.
We disagree that Lin Zhong allows us to ignore the statutory
limits on Donnelly’s cause of action under § 1421(c). The language on

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which Donnelly relies is not only dicta but inapplicable to these
circumstances. In Lin Zhong, this court held that the exhaustion
requirement at issue was judge-made and that the government had
waived it. Id. at 123, 125. Moreover, Lin Zhong based the “manifest
injustice” exception on cases that had assumed all statutory limits
were jurisdictional. Id. at 107 n.1; see also Marrero Pichardo v. Ashcroft,
374 F.3d 46, 52-53 (2d Cir. 2004) (reading McCarthy v. Madigan, 503
U.S. 140 (1992), to mean that “judicially imposed exhaustion
requirements are prudential and statutory ones are jurisdictional”).
Since then, in Grullon v. Mukasey, we “overruled” those opinions that
recognized such a “manifest injustice” exception. 509 F.3d 107, 115 (2d
Cir. 2007). We did so in light of Bowles v. Russell, which invalidated a
judge-made “unique circumstances” exception to the statutory 30-
day time period to appeal because only Congress may “authorize
courts to promulgate rules that excuse compliance with the statutory
time limits.” 551 U.S. 205, 213-15 (2007). That reasoning applies with
equal force in this case. Whether § 1421(c) is jurisdictional or not, the
“manifest injustice” exception that Donnelly seeks would be a “court-
created exception[] without authorization.” Bowles, 551 U.S. at 215.
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 § 1421(c). And because the government properly raised
Donnelly’s failure in district court, that rule must be enforced.
* * *
Though we agree that Donnelly failed to satisfy the exhaustion
requirement of § 1421(c) and this case must be dismissed, we disagree
with the district court’s decision to dismiss for lack of subject-matter

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jurisdiction. The difference between a dismissal for lack of jurisdiction
and a dismissal for failure to state a claim often carries significance. A
dismissal for lack of jurisdiction “must be without prejudice rather
than with prejudice.” FASORP v. NYU, 11 F.4th 68, 78 (2d Cir. 2021).
Dismissals for failure to state a claim, on the other hand, are generally
with prejudice. See Fed. R. Civ. P. 41(b); see also Ry. Labor Execs.’ Ass’n
v. Staten Island R.R. Corp., 792 F.2d 7, 12-13 (2d Cir. 1986) (modifying
the district court’s dismissal for lack of jurisdiction into a dismissal
under Rule 12(b)(6) with prejudice).
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.

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