Finality Despite CAT Remands & “Paternity … Established by Legitimation” Under Former 8 U.S.C. § 1432(a)(3)

1. Introduction

In Mario Lopez v. Pamela Bondi (4th Cir. Feb. 13, 2026), the Fourth Circuit resolved two recurring immigration-law questions: (1) when a Board of Immigration Appeals (BIA) decision is a “final order of removal” reviewable in the court of appeals even though the case is remanded for Convention Against Torture (CAT) proceedings; and (2) how to interpret the now-repealed derivative citizenship statute, former 8 U.S.C. § 1432(a)(3) (1952), specifically the clause requiring that “the paternity of the child has not been established by legitimation.”

The petitioner, Mario Rene Lopez, was born in El Salvador in 1981 to unmarried parents, became a lawful permanent resident as a child, and his mother naturalized when he was 16. After later state drug convictions, DHS initiated removal proceedings. Lopez moved to terminate removal, asserting that he automatically derived U.S. citizenship upon his mother’s naturalization because his “paternity” had not been “established by legitimation.” The Immigration Judge (IJ) and BIA rejected that citizenship claim while repeatedly remanding for further CAT analysis. Lopez filed petitions for review of the BIA’s 2024 remand order and its 2025 dismissal order.

2. Summary of the Opinion

The Fourth Circuit granted both petitions, vacated the BIA’s orders, and remanded with instructions to terminate removal proceedings.

  • Jurisdiction/Finality: The court held that the BIA’s 2024 Remand Order was a reviewable final order of removal because the IJ had reopened, vacated the prior removal order, and “re-entered” a new removal order as of January 25, 2023, which the BIA then dismissed on appeal. The court further held it had jurisdiction over the 2025 Dismissal Order as a refusal to reconsider removability/citizenship.
  • Derivative citizenship: The court held Lopez’s “paternity” was not “established by legitimation” within the meaning of former § 1432(a)(3) merely because the father signed the birth certificate and regardless of later Salvadoran legal reforms equalizing rights of children born in and out of wedlock. Lopez therefore derived U.S. citizenship upon his mother’s 1998 naturalization.
  • Precedential shift: The court held that intervening Supreme Court decisions Nasrallah v. Barr and Riley v. Bondi abrogated the Fourth Circuit’s prior finality rule in Kouambo v. Barr.

3. Analysis

3.1. Precedents Cited

A. Finality, jurisdiction, and review timing

  • Riley v. Bondi, 606 U.S. 259 (2025): The opinion treats Riley as decisive on statutory finality. Riley defined an order of removal as one “concluding that” a person “is deportable or ordering deportation” (quoting 8 U.S.C. § 1101(a)(47)(A)) and rejected policy/efficiency arguments for delaying finality until later protection proceedings conclude. The Fourth Circuit relied on Riley’s insistence that courts must “follow the statutory text” and that practical concerns can be managed procedurally (e.g., holding petitions while protection proceedings finish).
  • Nasrallah v. Barr, 590 U.S. 573 (2020): Nasrallah distinguished CAT orders from final orders of removal, emphasizing a CAT ruling does not “disturb” or “affect” the validity of a final removal order. The Fourth Circuit used this conceptual separation (removability vs. CAT protection) to undermine the premise that remand for CAT necessarily prevents finality.
  • Kouambo v. Barr, 943 F.3d 205 (4th Cir. 2019): Kouambo had held that a BIA decision is not final where the BIA remands for substantive proceedings on withholding/protection, citing finality, efficiency, and anti-bifurcation concerns. The court acknowledged Kouambo supported the government’s position but held it could not be reconciled with Nasrallah and Riley, and thus was abrogated.
  • Mata v. Lynch, 576 U.S. 143 (2015): The court invoked Mata for the proposition that the INA “expressly contemplates” review of denials of reopening or reconsideration and that the agency’s reason for denial does not defeat jurisdiction.
  • Taylor v. Grubbs, 930 F.3d 611 (4th Cir. 2019), Short v. Hartman, 87 F.4th 593 (4th Cir. 2023), and Doe v. Sidar, 93 F.4th 241 (4th Cir. 2024): These cases supply the Fourth Circuit’s internal rules on when intervening Supreme Court authority abrogates circuit precedent and the “high bar” for such a conclusion—standards the panel found satisfied here.
  • Garcia v. Garland, 73 F.4th 219 (4th Cir. 2023): Cited to show Kouambo’s rule persisted post-Nasrallah (at least until Riley), reinforcing that Riley was the key additional intervening authority to justify abrogation.
  • Kolov v. Garland, 78 F.4th 911 (6th Cir. 2023) (Murphy, J., concurring): Used as persuasive support that Nasrallah and later Supreme Court decisions undermine circuit approaches like Kouambo.

B. Nationality/derivative citizenship adjudication

  • Ng Fung Ho v. White, 259 U.S. 276 (1922), Johnson v. Whitehead, 647 F.3d 120 (4th Cir. 2011), and Frank v. Rogers, 253 F.2d 889 (D.C. Cir. 1958): Cited for the foundational point that citizenship claims cast doubt on the propriety of removal proceedings and must be resolved; also supports the remedy of terminating removal when citizenship is established.
  • Jahed v. Acri, 468 F.3d 230 (4th Cir. 2006) and Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010): Provide the timing rule: derivative citizenship is assessed under the statute in effect when the last requirement is fulfilled (here, the mother’s naturalization in 1998).
  • Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003): Used to explain that § 1432(a)(3)’s “legal separation” clause does not apply where parents never married.

C. Statutory interpretation and deference

  • Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): The panel treated the meaning of § 1432(a)(3) as a pure question of law requiring independent judgment, and noted that after Loper Bright the court does not defer to the BIA’s interpretation of statutory terms.
  • Solis-Florez v. Bondi, 159 F.4th 205 (4th Cir. 2025): Cited for the Fourth Circuit’s post-Loper Bright statement that “we no longer defer to the Board’s interpretation” of statutory terms.
  • Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992), Niz-Chavez v. Garland, 593 U.S. 155 (2021), Henson v. Santander Consumer USA Inc., 582 U.S. 79 (2017), and Wedderburn v. Immigration & Naturalization Serv., 215 F.3d 795 (7th Cir. 2000): These authorities anchor the opinion’s textualist approach and rejection of policy-based rewriting to preserve statutory “purpose” in light of changing foreign legal regimes.
  • Julmice v. Garland, 29 F.4th 206 (4th Cir. 2022): Cited for the principle that courts may not change Congress’s “chosen language in some material way.”

D. Legitimation, foreign law, and comparative circuit authority

  • Matter of Moraga, 23 I. & N. Dec. 195 (B.I.A. 2001) (en banc): The government cited Moraga’s general definition of legitimation; the Fourth Circuit assumed arguendo certain foreign-law propositions but ultimately held the federal statute’s phrasing controlled (paternity must be established by legitimation).
  • JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., 536 U.S. 88 (2002) and United States v. National Bank of Com., 472 U.S. 713 (1985): Used to clarify that the meaning of terms in a federal statute is a matter of federal law, not foreign law.
  • Flores‑Torres v. Holder, 680 F. Supp. 2d 1099 (N.D. Cal. 2009): Quoted for the key textual point: “legitimation must be the means through which paternity was established.”
  • Lainez v. Bondi, 141 F.4th 393 (2d Cir. 2025): Central to the Fourth Circuit’s circuit-split analysis: Lainez rejected the same Salvadoran-law argument and held that elimination of distinctions between children born in and out of wedlock “did not establish [the petitioner]’s paternity by legitimation.”
  • Government’s circuit cases distinguished: Romero‑Mendoza v. Holder, 665 F.3d 1105 (9th Cir. 2011) (involved parental marriage as legitimation); De Los Santos v. Immigration & Naturalization Serv., 690 F.2d 56 (2d Cir. 1982) and Lau v. Kiley, 563 F.2d 543 (2d Cir. 1977) (different statutory text—“legitimate/legitimated”); Iracheta v. Holder, 730 F.3d 419 (5th Cir. 2013) and Anderson v. Holder, 673 F.3d 1089 (9th Cir. 2012) (different statute, 8 U.S.C. § 1409(a)(4)); Miranda v. Sessions, 853 F.3d 69 (1st Cir. 2017) and Brandao v. Attorney Gen., 654 F.3d 427 (3d Cir. 2011) (pre-Loper Bright deference context); Colin‑Villavicencio v. Garland, 108 F.4th 1103 (9th Cir. 2024) (relied on pre-Loper Bright Ninth Circuit precedent and noted petitioner did not dispute “paternity … established by legitimation”).

E. Burdens and “doubts” about citizenship

  • Berenyi v. District Director, Immigration and Naturalization Service, 385 U.S. 630 (1967): The government invoked Berenyi’s burden-and-doubts rule. The panel questioned its applicability outside naturalization applications and held that in any event the dispute was legal (statutory meaning), not factual.
  • Smith v. United States, 568 U.S. 106 (2013): Cited for the general function of burdens of proof (allocating responsibility for proving disputed facts), supporting the panel’s conclusion that the burden question was not outcome-determinative here.

3.2. Legal Reasoning

A. The new finality rule in the Fourth Circuit after Nasrallah and Riley

The court framed finality using statutory definitions: an “order of removal” is one concluding deportability or ordering deportation, and it becomes “final” when the BIA affirms or the time for BIA review expires (8 U.S.C. § 1101(a)(47)(A)–(B)). Applying that text, the panel held:

  • The BIA’s 2022 Remand Order already “affirm[ed]” removability and thus was itself a final order at that time.
  • But the IJ’s January 25, 2023 action mattered: the IJ reopened, vacated the prior removal order, and “re-entered” a new removal order “as of th[at] date.” That created a new, superseding “order of removal.”
  • The BIA’s 2024 Remand Order dismissing Lopez’s appeal (while remanding only for CAT issues) rendered that re-entered removal order final and reviewable.

Critically, the court rejected the government’s Kouambo-based argument that remand for CAT proceedings prevents finality. The panel read Nasrallah and Riley as separating removability finality from later protection adjudications and as foreclosing efficiency/fairness rationales to redefine “final order of removal.” The court acknowledged the practical consequence (earlier petitions for review may be required), but pointed to Riley’s solution: courts can hold petitions and then resolve all issues together, aided by the “zipper clause” (8 U.S.C. § 1252(b)(9)).

B. “Paternity … established by legitimation” is a single, textual requirement

On the merits, the court applied a strictly textual reading of former § 1432(a)(3). The operative phrase is not “paternity established” and “child legitimated.” It is a single condition: whether “paternity” has been established by legitimation. The word “by” performs real work—it demands that legitimation be the means of establishing paternity.

Thus, even assuming (1) signing a birth certificate established paternity under Salvadoran law, and (2) a later Salvadoran constitutional reform erased legitimacy distinctions for children, neither fact answered the federal statutory question. A birth certificate signature might be paternity recognition, but it is not necessarily “legitimation” in the 1952 sense; and abolishing legitimacy categories might make all children “equal,” but it does not itself “establish” a particular man’s paternity, much less “by legitimation.”

C. Foreign law’s role is limited: federal statutory meaning controls

The court’s foreign-law discussion is best understood as a boundary-setting move. It did not deny that foreign law can supply factual predicates (e.g., whether a jurisdiction provides a legitimation mechanism). But it insisted that the meaning of the federal phrase, and whether a given act qualifies as establishing paternity “by legitimation,” is governed by federal law and statutory text, not by how a foreign state labels children as “legitimate” or by foreign policy choices to eliminate legitimacy distinctions.

D. Burdens of proof do not change the outcome when the issue is purely legal

The panel treated the case as turning on statutory interpretation rather than disputed facts. It therefore held the Berenyi burden principle did not matter: allocating fact burdens cannot rewrite the meaning of the federal phrase “established by legitimation,” and courts must exercise “independent judgment” on legal meaning under Loper Bright.

3.3. Impact

A. Timing of petitions for review in CAT-remand cases (Fourth Circuit)

The most immediate systemic effect is jurisdictional/procedural. After this decision:

  • Kouambo v. Barr is no longer the Fourth Circuit’s rule for cases where removability is affirmed but the BIA remands for CAT-related proceedings.
  • Practitioners must treat certain BIA “remand” decisions as final orders of removal—and timely file petitions for review—despite ongoing CAT proceedings, particularly where the removability determination has been affirmed and the remand concerns only protection.
  • Courts may manage duplicative litigation by holding petitions pending completion of remand proceedings, consistent with Riley v. Bondi and the statutory consolidation mechanisms.

B. Derivative citizenship under former § 1432(a)(3): “by legitimation” narrows disqualification

For the subset of cases still governed by the repealed § 1432(a)(3), the decision materially constrains government arguments that rely on: (1) mere paternity acknowledgment (e.g., a birth certificate), or (2) foreign legal reforms that abolish legitimacy distinctions, to defeat derivative citizenship. The Fourth Circuit’s approach demands a closer fit: the government must show that paternity was established through a process that qualifies as “legitimation” under the federal statute’s terms.

The opinion also underscores a post-Loper Bright Enters. v. Raimondo litigation posture: arguments that previously leaned on BIA interpretations (or on circuit precedent that deferred to the BIA) are less persuasive where the reviewing court treats statutory meaning as a matter for independent judicial determination.

C. Inter-circuit alignment and divergence

On the citizenship issue, the Fourth Circuit explicitly avoided a split with Lainez v. Bondi and suggested that adopting the government’s Salvadoran-law theory would create one. On finality, the decision increases cross-circuit convergence with the Supreme Court’s text-first approach in Riley and Nasrallah, potentially prompting reevaluation in other circuits that maintained Kouambo-like finality rules.

4. Complex Concepts Simplified

  • “Final order of removal”: A removal decision becomes “final” when the agency has definitively decided deportability/removal (typically after the BIA affirms). A case can still be “final” even if the agency continues to decide separate issues like CAT protection.
  • CAT deferral/relief: CAT protection prevents removal to a specific country due to risk of torture, but it does not itself erase the underlying removal order; it is protection from execution of removal to that destination.
  • Derivative citizenship (former § 1432): A now-repealed statute under which certain children automatically became citizens when a parent naturalized, if several conditions were met.
  • “Born out of wedlock” and “legitimation”: Historically, “legitimation” often referred to a legal process (commonly parental marriage plus acknowledgment) that changed a child’s legal status. The key here is that the statute asked whether paternity was established via that legitimation process—not merely whether someone was named as a father or whether a country later declared all children equal.
  • Abrogation of precedent: A circuit decision remains binding until an intervening Supreme Court decision makes it impossible to apply the old rule consistently. The court held that Nasrallah and Riley crossed that threshold for Kouambo.

5. Conclusion

The Fourth Circuit’s decision establishes two durable points. First, after Nasrallah v. Barr and Riley v. Bondi, a BIA decision affirming removability can be a final order of removal even if the case is remanded for further CAT proceedings, and Kouambo v. Barr no longer controls in the Fourth Circuit. Second, for former 8 U.S.C. § 1432(a)(3) (1952), the phrase “paternity … established by legitimation” is read as a single, text-driven requirement: paternity must be established through legitimation. On that reading, neither a birth-certificate signature nor foreign-law reforms eliminating legitimacy distinctions necessarily defeat derivative citizenship. The result in this case—termination of removal proceedings—follows from the court’s insistence that statutory text, not policy-based reconstructions or foreign-law labels, governs U.S. citizenship determinations.