Post-Loper Bright, Circuit Precedent Controls: Third Circuit Reaffirms Jordon’s Sequencing Rule for Former § 1432(a)(3) and Holds BIA Self-Certification Denials Unreviewable

Post-Loper Bright, Circuit Precedent Controls: Third Circuit Reaffirms Jordon’s Sequencing Rule for Former § 1432(a)(3) and Holds BIA Self-Certification Denials Unreviewable

Introduction

In Abdulmalik Abdulla v. Attorney General of the United States, the Third Circuit (Chief Judge Chagares, joined by Judges Bibas and Matey) issued a precedential opinion that does two important things in immigration and administrative law. First, it holds as a matter of first impression in this Circuit that the Board of Immigration Appeals’ (BIA) refusal to self-certify a late-filed appeal under 8 C.F.R. § 1003.1(c) is unreviewable because the regulation commits the decision entirely to agency discretion. Second, on a Supreme Court remand directed to the petitioner’s derivative citizenship claim, the Court—expressly in light of Loper Bright Enterprises v. Raimondo (2024), which overruled Chevron deference—reaffirms its prior precedents (Jordon and Bagot) interpreting former 8 U.S.C. § 1432(a)(3). The Court concludes that the statute’s use of “when” imposes a temporal sequence: legal separation must occur before the custodial parent’s naturalization for a child to derive citizenship.

The case also resolves several subsidiary issues: it dismisses numerous claims for failure to exhaust because the petitioner’s BIA appeal was untimely; it rejects the jurisdictional challenge premised on a notice to appear (NTA) lacking date and time; and it explains why, after Loper Bright, the BIA’s contrary readings in Matter of Baires-Larios and Matter of Douglas do not displace Third Circuit precedent.

Summary of the Judgment

  • BIA self-certification denial unreviewable: The Court lacks jurisdiction to review the BIA’s refusal to self-certify a late appeal under 8 C.F.R. § 1003.1(c) because the regulation provides no meaningful standard to apply (APA § 701(a)(2); Heckler v. Chaney). Analogizing to sua sponte reopening (Sang Goo Park), the Court recognizes limited exceptions (incorrect legal premise; settled-course limitation of discretion) but finds neither applies here.
  • Exhaustion: Because Abdulla’s BIA appeal was filed late, his challenges to the removal merits (including to DHS’s aggravated-felony proof and to denial of relief) were not exhausted and are dismissed (8 U.S.C. § 1252; Bejar; Aguilar).
  • NTA jurisdictional challenge rejected: A defective NTA that omits date/time does not divest the immigration court of jurisdiction (Nkomo; Chavez-Chilel). Pereira’s stop-time holding does not govern jurisdiction.
  • Derivative citizenship denied on the merits: Reviewing de novo under § 1252(b)(5), the Court holds that former § 1432(a)(3)’s use of “when” is ambiguous, but Jordon’s controlling interpretation—that separation must precede naturalization—binds. Post-Loper Bright, the Court does not defer to BIA interpretations (Baires-Larios, Douglas) that read “when” as merely conditional or sequencing-neutral, and Brand X no longer compels displacement of circuit precedent. Abdulla therefore did not derive citizenship because his father naturalized before his parents legally separated.

Background

Abdulla, born in Yemen in 1976, entered the United States as a lawful permanent resident in 1990 after his father had naturalized in 1986. His parents divorced in 1989, after the father’s naturalization. Following a 2014 federal fraud conviction, DHS initiated removal, serving an NTA without date/time. The IJ sustained removability, denied protection (asylum, withholding, CAT), and ordered removal. Abdulla’s BIA appeal was seven weeks late; he sought an emergency stay and asked the Board to “self-certify” the late appeal. The BIA dismissed as untimely and declined certification. In 2020, the Third Circuit largely rejected Abdulla’s challenges, including his derivative citizenship claim under former § 1432. The Supreme Court granted certiorari, vacated, and remanded for reconsideration of derivative citizenship “in light of the brief filed by the Acting Solicitor General.” While on remand, the Supreme Court decided Loper Bright (2024), overruling Chevron and undermining Brand X. The Third Circuit ordered supplemental briefing and now reaffirms its earlier result.

Detailed Analysis

Precedents Cited and Their Roles

  • Administrative review and discretion:
    • 8 C.F.R. § 1003.1(c): BIA “may” certify in its discretion if parties had a fair opportunity to present to the Board. The regulation contains no standards governing a denial.
    • Heckler v. Chaney, 470 U.S. 821 (1985): Agency actions “committed to agency discretion by law” are unreviewable when there is no law to apply. Anchors the Court’s conclusion that § 1003.1(c) denials are unreviewable.
    • Sang Goo Park v. Att’y Gen., 846 F.3d 645 (3d Cir. 2017): Denials of sua sponte reopening are unreviewable; two narrow exceptions exist: (1) decision rests on an incorrect legal premise; (2) settled-course limitation of discretion. The Court analogizes and applies the same framework here.
    • Other circuits (persuasive alignment): Vela‑Estrada (2d Cir.), Idrees (9th Cir.), Liadov (8th Cir.), Mahamat (10th Cir.)—all hold refusals to certify are unreviewable, with similar narrow exceptions.
    • Qatanani v. Att’y Gen., 144 F.4th 485 (3d Cir. 2025): Noted to distinguish that appellate review may exist when the BIA affirmatively self-certifies a case; here the refusal is at issue.
  • Exhaustion and claim-processing:
    • 8 U.S.C. § 1252: Requires exhaustion of administrative remedies before judicial review of final removal orders.
    • Bejar v. Ashcroft, 324 F.3d 127 (3d Cir. 2003): An untimely BIA appeal equals failure to exhaust.
    • Aguilar v. Att’y Gen., 107 F.4th 164 (3d Cir. 2024): Exhaustion is a mandatory claim‑processing rule when invoked by the government (post‑Santos‑Zacaria); not jurisdictional but still controlling.
    • Lin v. Att’y Gen., 543 F.3d 114 (3d Cir. 2008), abrogated in part by Santos‑Zacaria, 598 U.S. 411 (2023): Addressed scope of issue exhaustion in timely appeals; inapposite to late appeal scenarios.
  • NTA and immigration court jurisdiction:
    • Pereira v. Sessions, 585 U.S. 198 (2018): A defective NTA does not trigger the stop‑time rule; says nothing about immigration court jurisdiction.
    • Nkomo v. Att’y Gen., 930 F.3d 129 (3d Cir. 2019), and Chavez‑Chilel, 20 F.4th 138 (3d Cir. 2021): Defective NTAs (missing date/time) do not strip the immigration court of jurisdiction. Binding circuit law.
  • Derivative citizenship under former § 1432:
    • Former 8 U.S.C. § 1432(a)(3)–(5) (repealed 2000): Child derives citizenship upon satisfaction of conditions, including “The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents…”
    • Jordon v. Att’y Gen., 424 F.3d 320 (3d Cir. 2005): Holds that the statute requires legal separation before the naturalization of the custodial parent—a sequencing rule.
    • Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005): Interpreted “legal custody” under § 1432(a)(3); accepted (without analyzing) the temporal reading of “when.” The Court here treats Bagot’s “when” discussion as dictum, but Jordon’s holding as binding.
    • BIA decisions: Matter of Baires‑Larios, 24 I. & N. Dec. 467 (BIA 2008), and Matter of Douglas, 26 I. & N. Dec. 197 (BIA 2013): Read “when” as conditional, not sequential, making the order of separation and naturalization immaterial if both conditions are met.
  • Chevron deference, Brand X, and Loper Bright:
    • Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984): Overruled by Loper Bright (2024).
    • Nat’l Cable & Telecommunications Ass’n v. Brand X, 545 U.S. 967 (2005): Had permitted agency interpretations to displace prior circuit precedent unless the prior decision declared the statute unambiguous. After Loper Bright, the Third Circuit treats Brand X’s framework as incompatible with the APA’s requirement that courts resolve statutory ambiguities.
    • Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Courts, not agencies, decide statutory meaning; binding Chevron-style deference is out. Agency views may be considered for their persuasive value (Skidmore-like), but cannot override judicial precedent.
  • Additional authorities and context:
    • INS v. Cardoza‑Fonseca, 480 U.S. 421 (1987) (ordinary meaning controls); Robinson v. Shell Oil, 519 U.S. 337 (1997) (text and context); Taylor, 933 F.2d 1227 (3d Cir. 1991) (ambiguity standard).
    • In re McDonald, 205 F.3d 606 (3d Cir. 2000); United States v. Mallory, 765 F.3d 373 (3d Cir. 2014): Distinguishing holding from dictum.
    • Karns v. Shanahan, 879 F.3d 504 (3d Cir. 2018); Third Circuit I.O.P. 9.1: Panels are bound by prior published panel decisions absent en banc or Supreme Court intervention.

Legal Reasoning

  • Self-certification is unreviewable: Section 1003.1(c) uses permissive language (“may”) and furnishes no standards limiting the Board’s choice to refuse certification. Under APA § 701(a)(2) and Chaney, the Court has “no law to apply.” While the BIA has sometimes referenced “exceptional circumstances,” it has not cabined that phrase with content that could furnish judicially manageable standards. The Court analogizes to its sua sponte reopening jurisprudence (Sang Goo Park) and sees no applicable exception: Abdulla did not identify either an error of law underlying the refusal or a settled course of adjudication limiting BIA discretion.
  • Exhaustion is mandatory and not satisfied by a late appeal: Because Abdulla’s BIA appeal was untimely, his merits challenges were unexhausted (Bejar). After Santos‑Zacaria, the requirement is a claim‑processing rule; but once the government invokes it, courts must enforce it (Aguilar).
  • NTA defect does not strip jurisdiction: Pereira addresses stop‑time, not immigration court jurisdiction; Nkomo and Chavez‑Chilel control and foreclose Abdulla’s jurisdictional challenge.
  • Derivative citizenship under former § 1432(a)(3):
    • Ambiguity: The word “when” can be temporal (“at the time that”) or conditional (“if”). The statute does not define it; context does not resolve the ambiguity. The BIA’s Douglas analysis likewise identifies ambiguity. The Court agrees “when” is ambiguous as used in § 1432(a)(3).
    • Effect of Loper Bright and Brand X: Post‑Loper Bright, the Court cannot defer to BIA interpretations to override circuit precedent. Brand X’s mechanism for displacing prior circuit law with reasonable agency constructions is incompatible with the APA’s command that courts decide statutory meaning. Thus, the BIA’s contrary reading in Baires‑Larios and Douglas—even if reasonable—cannot supplant the Third Circuit’s precedential reading.
    • Precedent controls: While Bagot’s acknowledgement of a temporal sequence was dictum, Jordon squarely held that § 1432(a)(3) requires legal separation before the custodial parent’s naturalization. Under I.O.P. 9.1, Jordon binds the panel. Abdulla did not argue for en banc reconsideration nor did the Supreme Court provide a contrary construction. Because Abdulla’s parents separated after his father’s naturalization, he does not satisfy the statute’s sequencing requirement.
    • No transfer to district court: There is no genuine dispute of material fact regarding the sequencing; the claim fails as a matter of law, so no transfer under § 1252(b)(5)(B).

Impact and Significance

  • Administrative law after Loper Bright: This decision is among the early, concrete applications of Loper Bright in the immigration context. It confirms that agency interpretations—even longstanding BIA readings—no longer receive binding Chevron/Brand X deference. Circuit precedent will control unless changed en banc or by the Supreme Court. Practically, this may “freeze” circuit splits over ambiguous INA terms until higher-level interventions occur.
  • Derivative citizenship under former § 1432 in the Third Circuit: The sequencing rule of Jordon remains the law: to derive citizenship, the legal separation of the parents must precede the naturalization of the custodial parent. BIA decisions (Baires‑Larios, Douglas) to the contrary are not controlling in the Third Circuit. Petitioners relying on those BIA interpretations in this Circuit will face binding precedent against them.
  • Self-certification doctrine clarified: For the first time in a precedential opinion, the Third Circuit holds that the BIA’s denial of self-certification under § 1003.1(c) is unreviewable. Only narrow exceptions (error-of-law or a demonstrated settled course limiting discretion) might open the door to review. This aligns the Third Circuit with the Second, Eighth, Ninth, and Tenth Circuits.
  • Exhaustion rigor: The Court reiterates that a late BIA appeal does not exhaust remedies. Litigants who miss the 30-day deadline cannot salvage exhaustion simply by styling arguments in federal court; they should consider agency motions that might revive appellate pathways (e.g., equitable tolling before the BIA, where available) rather than banking on judicial review.
  • NTA jurisdictional challenges narrowed: The Court reaffirms that Pereira defects do not affect the immigration court’s jurisdiction, limiting the utility of Pereira largely to stop‑time analysis (not at issue here).

Complex Concepts Simplified

  • BIA self-certification (8 C.F.R. § 1003.1(c)): A safety valve allowing the BIA, in its discretion, to take up an appeal that is procedurally defective (for example, filed late). The regulation provides no criteria a court can use to second‑guess a refusal, so such refusals are generally unreviewable.
  • Sua sponte reopening vs. self-certification: “Sua sponte reopening” lets the BIA reopen a case at any time; “self-certification” lets it hear an otherwise improper appeal. Both are highly discretionary; denials are generally unreviewable absent very narrow exceptions.
  • Exhaustion of administrative remedies: Before asking a federal court to review a removal order, a noncitizen must first present arguments to the BIA in a timely appeal. Missing the BIA deadline typically means the issues are unexhausted and cannot be raised in court.
  • Notice to appear (NTA): The charging document that starts removal proceedings. After Pereira, an NTA lacking date/time does not trigger the stop‑time rule for certain relief; but in the Third Circuit it still vests the immigration court with jurisdiction once proper notice follows.
  • Derivative citizenship (former § 1432): A now-repealed provision that, under certain conditions, conferred U.S. citizenship on a child when a parent naturalized. In the Third Circuit, “when there has been a legal separation” is read to require that the separation occur before the custodial parent’s naturalization.
  • Chevron and Brand X, after Loper Bright: Chevron required courts to defer to reasonable agency interpretations of ambiguous statutes; Brand X allowed such agency interpretations to override existing circuit precedent unless the court had found the statute unambiguous. Loper Bright ends Chevron deference and rejects Brand X’s displacement mechanism; agency views may still be considered for their persuasive force, but courts independently decide statutory meaning.
  • “Committed to agency discretion by law” (APA § 701(a)(2)): Courts cannot review agency actions when the law provides no manageable standard for judging the agency’s choice. That is the case with BIA refusals to self‑certify late appeals.

Practical Takeaways

  • Timeliness is critical: File BIA appeals within 30 days. Late appeals risk dismissal; refusals to self‑certify are generally unreviewable. Consider agency mechanisms (including equitable tolling where appropriate) promptly.
  • Know your circuit law: After Loper Bright, do not expect BIA precedent to overcome unfavorable circuit precedent. Where circuit law is adverse, en banc review or Supreme Court resolution is the likely path to change.
  • Frame jurisdiction carefully: Do not recast merits or burden arguments (e.g., Nijhawan burden issues) as “jurisdictional” to avoid exhaustion. Courts will treat them as merits claims that must be administratively exhausted.
  • Derivative citizenship under former § 1432: In the Third Circuit, establish the time sequence: legal separation before the custodial parent’s naturalization. If the sequence is reversed, § 1432(a)(3) is not satisfied under binding law.
  • NTA defects: A missing date/time in the NTA does not divest immigration courts of jurisdiction in this Circuit; it remains relevant primarily for stop‑time questions.

Conclusion

Abdulla cements two important propositions in the Third Circuit. First, the BIA’s refusal to self‑certify a late appeal under § 1003.1(c) is unreviewable because the regulation supplies no standard against which courts can measure the agency’s discretion—an approach harmonized with analogous sua sponte reopening doctrine and sister circuit authority. Second, in the post‑Loper Bright world, circuit precedent—not BIA interpretations—controls the meaning of ambiguous INA provisions unless changed by en banc rehearing or by the Supreme Court. Applying that principle, the Court adheres to Jordon’s sequencing rule for former § 1432(a)(3): legal separation must precede the naturalization of the custodial parent. As a result, Abdulla’s derivative citizenship claim fails as a matter of law; his additional claims are either unexhausted or foreclosed by binding precedent.

The decision thus provides a roadmap for courts and practitioners navigating immigration questions after Loper Bright: agency interpretations may inform, but cannot displace, binding judicial constructions—especially in areas like derivative citizenship where statutory text admits competing readings and circuit law has already staked out a controlling path.

Case Details

Year: 2025
Court: Court of Appeals for the Third Circuit

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