Abdulmalik Mahyoub Mulhi Abdulla v. Attorney General of the United States of America

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
____________
Before: CHAGARES, Chief Judge, BIBAS and MATEY,
Circuit Judges
(Filed: August 27, 2025)

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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
____________
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

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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.

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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.

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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

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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.

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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).

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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-
certification3 — 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,

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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).

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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.

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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

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(“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

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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).

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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,

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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.

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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.

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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.

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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

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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.

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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

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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

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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.

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