Lopez v. Bondi: CAT Remand Orders Can Be “Final Orders of Removal,” and § 1432(a)(3) Requires Paternity Be Established By Legitimation (Not Mere Acknowledgment)

3.1 Precedents Cited (and How They Shaped the Decision)

Finality, jurisdiction, and remands

• Riley v. Bondi, 606 U.S. 259 (2025)
  The anchor precedent for finality. The Fourth Circuit used Riley for two propositions: (1) the statutory definition of a final order of removal turns on whether the order concludes deportability or orders deportation, and (2) “practical problems” and efficiency concerns cannot override the statutory text. Riley also supplied a key structural concept: the finality of a removal order “does not depend in any way on the outcome of” later proceedings concerning protection from removal. This directly undercut the consolidation-based rationale that had supported the Fourth Circuit’s earlier approach in Kouambo.
• Nasrallah v. Barr, 590 U.S. 573 (2020)
  Nasrallah distinguished between the final order of removal and CAT protection orders, stating a CAT order is “not itself a final order of removal” and does not disturb the validity of the final removal order. The Fourth Circuit treated this as doctrinal pressure against the idea that finality must await completion of all remanded protection proceedings.
• Kouambo v. Barr, 943 F.3d 205 (4th Cir. 2019)
  The government relied on Kouambo to argue the 2024 BIA remand order was not final because CAT issues remained. The Fourth Circuit acknowledged Kouambo supported the government’s position but held it was abrogated by Nasrallah and Riley. The court thereby announced a significant circuit-level correction: CAT remands do not necessarily postpone finality of the underlying removal order.
• Mata v. Lynch, 576 U.S. 143 (2015)
  Used to ground jurisdiction over decisions refusing to reopen or reconsider final removal orders, emphasizing that the reason for denial “makes no difference” to the jurisdictional inquiry. This supported reviewability of the BIA’s 2025 “reaffirm[ation]” rejecting Lopez’s citizenship/removability arguments.
• Short v. Hartman, 87 F.4th 593 (4th Cir. 2023), Garcia v. Garland, 73 F.4th 219 (4th Cir. 2023), Taylor v. Grubbs, 930 F.3d 611 (4th Cir. 2019), Doe v. Sidar, 93 F.4th 241 (4th Cir. 2024)
  These cases provided the Fourth Circuit’s internal framework for when intervening Supreme Court authority abrogates circuit precedent. The court invoked them to justify concluding that the “high bar” for abrogation was met and that Kouambo could no longer stand.

Derivative citizenship, nationality adjudication, and remedies

• Ng Fung Ho v. White, 259 U.S. 276 (1922), Johnson v. Whitehead, 647 F.3d 120 (4th Cir. 2011), Frank v. Rogers, 253 F.2d 889 (D.C. Cir. 1958)
  Cited for the fundamental proposition that if citizenship is in doubt, the legitimacy of removal proceedings is in doubt; and that when no genuine issue of material fact exists, the court must decide nationality and can order termination of removal proceedings.
• Jahed v. Acri, 468 F.3d 230 (4th Cir. 2006), Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010)
  These cases supplied the temporal rule: apply the derivative citizenship statute in effect when the last required condition is satisfied—here, the mother’s naturalization in 1998.

Statutory interpretation and deference

• Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)
  Central to the opinion’s interpretive posture. The court treated the meaning of “paternity … established by legitimation” as a purely legal question requiring independent judicial judgment. It also used Loper Bright to diminish the persuasive weight of older circuit decisions that had deferred to the BIA on interpretive questions.
• Solis-Florez v. Bondi, 159 F.4th 205 (4th Cir. 2025)
  Cited for the post-Loper Bright proposition that the Fourth Circuit “no longer defer[s] to the Board’s interpretation” of statutory terms.
• Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992)
  Used to reinforce textual fidelity: presume Congress means what it says.
• Niz-Chavez v. Garland, 593 U.S. 155 (2021), Henson v. Santander Consumer USA Inc., 582 U.S. 79 (2017)
  Invoked to reject policy-based arguments that invite courts to rewrite clear statutory text to accommodate later-changed real-world conditions.

“Legitimation,” foreign law, and comparative statutory context

• Lainez v. Bondi, 141 F.4th 393 (2d Cir. 2025)
  The decisive sister-circuit comparator. The Fourth Circuit aligned with Lainez and expressly recognized that disagreeing would create a circuit split. Both courts held that El Salvador’s elimination of legitimacy distinctions did not itself “establish” paternity “by legitimation” under former § 1432(a)(3).
• Flores‑Torres v. Holder, 680 F. Supp. 2d 1099 (N.D. Cal. 2009)
  Quoted for the key linguistic point: Congress’s use of “by” means legitimation must be the means through which paternity is established.
• Matter of Moraga, 23 I. & N. Dec. 195 (B.I.A. 2001) (en banc)
  The government’s definition of legitimation (placing a child born out of wedlock in the same legal position as a child born in wedlock) came from this BIA precedent. The Fourth Circuit did not embrace it as controlling, and in any event held the federal statute’s phrasing required a causal/mechanistic link between legitimation and establishing paternity.
• JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., 536 U.S. 88 (2002), United States v. National Bank of Com., 472 U.S. 713 (1985)
  Cited to underscore that the meaning of federal statutory terms is governed by federal law, not by whatever foreign family law happens to provide.
• Julmice v. Garland, 29 F.4th 206 (4th Cir. 2022)
  Used to criticize interpretations that materially rewrite Congress’s chosen language.
• Wedderburn v. Immigration & Naturalization Serv., 215 F.3d 795 (7th Cir. 2000)
  Cited for restraint against “amendment-by-interpretation,” particularly where foreign-law developments would otherwise drive U.S. statutory consequences.

Cases distinguished as factually or textually inapposite

• Romero‑Mendoza v. Holder, 665 F.3d 1105 (9th Cir. 2011)
  Distinguished because the parents’ subsequent marriage prior to naturalization was the act that established paternity by legitimation—an act absent in Lopez’s case.
• Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003)
  Referenced for the proposition that § 1432(a)(3)’s “legal separation” clause cannot apply where parents never married.
• De Los Santos v. Immigration & Naturalization Serv., 690 F.2d 56 (2d Cir. 1982), Lau v. Kiley, 563 F.2d 543 (2d Cir. 1977)
  Distinguished because they interpreted different statutory language focusing on whether a child was “legitimate” or “legitimated,” not whether paternity was established by legitimation.
• Iracheta v. Holder, 730 F.3d 419 (5th Cir. 2013), Anderson v. Holder, 673 F.3d 1089 (9th Cir. 2012)
  Distinguished because they construed 8 U.S.C. § 1409(a)(4) (1964), whose text separates legitimation and paternity requirements—unlike § 1432(a)(3).
• Miranda v. Sessions, 853 F.3d 69 (1st Cir. 2017), Brandao v. Attorney Gen., 654 F.3d 427 (3d Cir. 2011), Colin‑Villavicencio v. Garland, 108 F.4th 1103 (9th Cir. 2024)
  Treated as limited in persuasive value because they either relied on pre-Loper Bright deference frameworks and/or involved concessions about paternity being established by legitimation.
• Berenyi v. District Director, Immigration and Naturalization Service, 385 U.S. 630 (1967), Smith v. United States, 568 U.S. 106 (2013)
  The government’s burden argument drew on Berenyi, but the court minimized its relevance because Lopez’s claim turned on statutory meaning (a legal question), not disputed facts. Smith was used to explain the function of burdens of proof.

3.2 Legal Reasoning

A. Finality after CAT remands: text over consolidation

The court started with the statutory definition: an order of removal is one “concluding that” a person “is deportable or ordering deportation” (quoting Riley v. Bondi, which quoted 8 U.S.C. § 1101(a)(47)(A)). The opinion then tracked the procedural posture to identify which agency action “affirm[ed]” an order of removal under 8 U.S.C. § 1101(a)(47)(B).

Crucially, the IJ’s January 25, 2023 decision “vacate[d]” the earlier removal decision and “re-entered” a new removal order “as of th[at] date.” That mattered: the Fourth Circuit was not simply treating a remand discussion of removability as final; it tied finality to a re-issued, operative removal order later affirmed (or left undisturbed) by the BIA.

On the government’s attempt to apply Kouambo v. Barr, the court treated Nasrallah v. Barr as separating removability from CAT protection, and treated Riley v. Bondi as foreclosing the “efficiency/fairness” rationale that had previously driven Kouambo. The court accepted that its holding “represents a major change” in timing expectations but observed that courts can still avoid “fits and starts” by holding petitions while protection proceedings conclude, referencing Riley and the “zipper clause,” 8 U.S.C. § 1252(b)(9).

B. Derivative citizenship under former § 1432(a)(3): “by” imposes a mechanism requirement

On the merits, the court narrowed the entire dispute to one phrase in former 8 U.S.C. § 1432(a)(3) (1952): whether Lopez’s “paternity … ha[d] … been established by legitimation” at the time his mother naturalized. The court emphasized what the statute does not ask: it is not enough that the father’s identity was known, or that the child’s status was later treated as “legitimate” for many purposes. The statute requires that paternity be established via legitimation.

The grammatical point did the heavy lifting. Relying on ordinary meaning (“by” as “through the medium of”) and echoing Flores‑Torres v. Holder, the court reasoned that “legitimation must be the means through which paternity was established.” Even assuming a birth certificate acknowledgment “established” paternity, the government failed to show how that act established paternity by a legitimation process as U.S. law would have understood “legitimation” when Congress enacted the statute in 1952.

C. Foreign law changes cannot rewrite the federal eligibility trigger

The government’s alternative theory leaned on Salvadoran law developments: a constitutional shift toward equal rights for children born in and out of wedlock, and rules allowing paternity to be established by voluntary recognition (including on a birth certificate). The Fourth Circuit’s response was structural: El Salvador can define status for its own purposes, but federal statutory meaning remains federal. Citing JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd. and United States v. National Bank of Com., the court insisted that even accurate foreign-law premises do not answer the federal question as written.

The opinion repeatedly rejected the government’s attempt to split § 1432(a)(3) into two independent conditions (paternity established, and legitimacy conferred). Congress used one integrated condition—“paternity … established by legitimation”—and the court treated that integration as dispositive. It also aligned with Lainez v. Bondi, recognizing that an across-the-board abolition of legitimacy distinctions “did not, of [its] own force, establish … paternity.”

D. Burden of proof did not control because the dispute was legal

The government invoked Berenyi v. District Director, Immigration and Naturalization Service to argue doubts should be resolved against Lopez. The court questioned its applicability outside affirmative naturalization proceedings and held that, regardless, burdens are designed to allocate responsibility for disputed facts. Here, the parties’ disagreement was the meaning of statutory text—resolved by “independent judgment” under Loper Bright Enters. v. Raimondo.

E. Policy arguments cannot override clear statutory text

The court acknowledged a possible mismatch between a 1952 statute and modern family-law reforms that eliminate legitimation mechanisms, but held that such concerns cannot authorize judicial rewriting. Citing Niz-Chavez v. Garland and Henson v. Santander Consumer USA Inc., the court concluded that if the statutory trigger produces narrower exclusions as foreign legal systems evolve, that is for Congress (and was partly addressed by later repeal in 2001), not for courts to patch via interpretation.

3.3 Impact

A. Immediate procedural impact in the Fourth Circuit: earlier petitions may be required

By holding Nasrallah and Riley abrogated Kouambo, the Fourth Circuit materially changes how litigants should think about timing. A BIA decision that affirms removability but remands for CAT-related proceedings can still be a “final order of removal” for purposes of the 30-day petition-for-review clock. Although the court noted mechanisms to avoid piecemeal review (including holding petitions pending completion of protection proceedings), the practical takeaway is that noncitizens and counsel must be alert to finality even when remands remain.

B. Substantive impact: a stricter, text-bound reading of “paternity … established by legitimation”

The merits holding narrows the government’s ability to defeat derivative citizenship under former § 1432(a)(3) based on: (1) mere acknowledgment of paternity on a birth certificate, and (2) broad foreign-law reforms eliminating “illegitimacy.” In effect, the court requires evidence of a legitimation-type act that itself establishes paternity (commonly, but not exclusively, a parental marriage with acknowledgment), rather than treating “legitimation” as a free-floating status label that can be retrofitted onto paternity by later legal developments.

C. Doctrinal impact post-Loper Bright: reduced weight of BIA interpretations in derivative citizenship disputes

The opinion illustrates the post-Loper Bright environment: courts will evaluate the statute’s meaning directly, which can diminish the gravitational pull of older BIA glosses and pre-2024 circuit decisions built on deference. That shift may increase inter-circuit divergence in older INA provisions until more appellate decisions converge on uniform textual readings.

D. Circuit alignment (and avoidance of a split) with the Second Circuit

By adopting the reasoning of Lainez v. Bondi, the Fourth Circuit promotes cross-circuit consistency on Salvadoran-law-based arguments under former § 1432(a)(3). The opinion explicitly treated a contrary result as split-inducing—signaling a preference for harmonization where statutory text permits.