PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 17-3131 & 18-1510

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ADEL DESSOUKI,

Petitioner

v. 

ATTORNEY GENERAL OF THE UNITED STATES OF 

AMERICA,

 Respondent

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On Petition for Review of Decisions of the

United States Department of Justice

Board of Immigration Appeals

(A029-635-695)

Immigration Judge: Rosalind K. Malloy
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No. 18-2110

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ADEL DESSOUKI,

Appellant

v.

SECRETARY, UNITED STATES DEPARTMENT OF

HOMELAND SECURITY; ATTORNEY GENERAL 

UNITED STATES OF AMERICA; ACTING DIRECTOR 

UNITED STATES CITIZENSHIP AND IMMIGRATION 

SERVICES; ACTING DISTRICT DIRECTOR UNITED 

STATES CITIZENSHIP AND IMMIGRATION SERVICES 

PHILADELPHIA DISTRICT OFFICE

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:17-cv-02389)

District Judge: Honorable Timothy J. Savage

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Argued November 15, 2018

Before: GREENAWAY, JR., BIBAS, and FUENTES, Circuit 

Judges.

(Filed February 14, 2019)

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Douglas A. Grannan [ARGUED]

300 Walnut Street

Philadelphia, PA 19106

Counsel for Petitioner-Appellant

Elizabeth Fitzgerald-Sambou [ARGUED]

Rodolfo D. Saenz

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Anthony St. Joseph

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Respondent-Appellee

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OPINION OF THE COURT

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BIBAS, Circuit Judge.

People have several paths to press claims of U.S. citizenship. They can raise citizenship as a defense to removal. They 

can affirmatively petition the government. And they can bring 

their claims in federal court. In any case, the core inquiry remains the same: is this person a United States citizen? Adel 

Dessouki is not. That one finding moots the rest of the issues 
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here. So we will deny his petitions for review and dismiss his

District Court appeal.

I. BACKGROUND

Adel Dessouki’s immigration saga spans decades. He was 

born in France in 1982. His parents never married, and they

separately immigrated to the United States. Dessouki came 

with his mother and went on to live with his father. Though 

they entered on temporary visas, his mother became a lawful 

permanent resident and his father a U.S. citizen. But Dessouki 

himself remained on parole status for many years.

Things took a turn for the worse in 2003, when Dessouki 

was convicted of several drug-related felonies. The government soon tried to remove him. But the government failed to 

prove that Dessouki was an alien. So an immigration judge terminated his removal proceedings. Dessouki remained in the 

United States.

But not for long. A few years later, the government reopened the proceedings. After reconsidering the previous decision, another immigration judge reversed course and rejected

Dessouki’s claim that he was a citizen. The government then 

removed him to France.

Ever-persistent, Dessouki snuck back into the United 

States. But not without consequence—he was charged with

reentry after deportation. He recently pleaded guilty and was 

sentenced to time served.

Dessouki continued to claim citizenship. He first asked an 

immigration judge to reopen his removal proceedings. The 
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judge denied that motion, and the Board of Immigration Appeals affirmed. Dessouki next brought a motion to reconsider, 

which the Board also denied. He then filed an action in U.S.

District Court seeking a declaration that he is a citizen under 8 

U.S.C. §1503(a). The District Court dismissed the case for lack 

of subject-matter jurisdiction. In this consolidated appeal, Dessouki seeks review of these adverse rulings.

II. WE MUST DECIDE DESSOUKI’S CLAIM TO CITIZENSHIP

For years, Dessouki has claimed that he derived citizenship 

from his father. He has presented this argument to immigration 

judges, the Board, and U.S. Citizenship and Immigration Services. With one exception, it has been rejected at every turn.

He now advances the same argument here. We too will reject it. But before getting there, we must ensure that we have

jurisdiction. And we do have it, because Congress obligates us 

to review claims of citizenship:

If the petitioner claims to be a national of the 

United States and the court of appeals finds from 

the pleadings and affidavits that no genuine issue 

of material fact about the petitioner’s nationality 

is presented, the court shall decide the nationality 

claim.

8 U.S.C. §1252(b)(5)(A). We have assumed that this provision 

grants jurisdiction. See, e.g., Morgan v. Att’y Gen., 432 F.3d 

226, 229 (3d Cir. 2005). 

Today, we affirm that interpretation. To begin, the word 

“shall” imposes a mandatory requirement. By obligating us to 
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review nationality claims, §1252(b)(5)(A) must grant jurisdiction. The obligation to decide entails the power to do so. Other 

parts of this provision confirm our reading; much of §1252

concerns jurisdiction. See, e.g., §1252(e)(2) (granting limited

review over habeas proceedings); §1252(a)(2) (exempting 

other proceedings from judicial review); §1252(b)(1)-(3) (listing requirements for appellate jurisdiction). Given this statutory context, §1252(b)(5)(A) is best read as granting jurisdiction.

A contrary reading would raise serious constitutional concerns. The Executive cannot deport a citizen. A “claim of citizenship is thus a denial of an essential jurisdictional fact” in a 

removal proceeding. Ng Fung Ho v. White, 259 U.S. 276, 284 

(1922). But unless we read §1252(b)(5)(A) as jurisdictional, 

Article III courts would lack the power to ensure that the Executive does not overstep its bounds and deport citizens. We 

should avoid this result. In sum, not only can we review Dessouki’s claim to citizenship before the agency, but we must do 

so.

III. DESSOUKI IS NOT A CITIZEN

Dessouki bases his citizenship claim on his father’s naturalization. But the relevant law requires his parents to have

once been married. They never were, so Dessouki is not a citizen.

We exercise plenary review over Dessouki’s claim to citizenship. Jordon v. Att’y Gen., 424 F.3d 320, 328 (3d Cir. 

2005). The law “in effect at the time [of] the critical events 

giving rise to” his claim governs our review. Morgan, 432 F.3d 
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at 230. So we apply the law as it was in 1998, the year that his 

father naturalized. At that time, a child born outside the United 

States to alien parents could derive citizenship in three ways. 8 

U.S.C. §1432(a) (repealed 2000); Jordon, 424 F.3d at 329.

First, Dessouki could gain citizenship if both his parents 

were naturalized. §1432(a)(1). But his mother never was, so 

his claim fails under that provision. Second, if one of his parents died, the other’s naturalization sufficed. §1432(a)(2). But 

that too is inapt, because both his parents were alive in 1998.

The third path requires him to satisfy three subsections. 

§1432(a)(3)-(5); Jordon, 424 F.3d at 329. Dessouki’s claim

fails at (a)(3), so we need not reach whether (a)(4) and (a)(5) 

are met. He can satisfy (a)(3) in two ways. First, if “there has 

been a legal separation of the parents,” Dessouki must show 

the “naturalization of the parent having legal custody of [him 

as a] child.” §1432(a)(3). Or “if the child was born out of wedlock and the paternity of the child has not been established by 

legitimation,” he must show that his mother naturalized. Id. 

The second half of this provision does not help Dessouki, because his mother was never naturalized.

So that leaves the first half of (a)(3). There too, Dessouki’s 

claim hits a snag. His path to derivative citizenship turns on 

two words: “legal separation.” A legal separation “occurs only

upon a formal governmental action ... under the laws of a state 

or nation having jurisdiction over the marriage.” Morgan, 432 

F.3d at 234. There can be no legal separation here—because 

there was never a marriage in the first place. Dessouki concedes that his parents never married. Pet’r Br. 3. Those who 

never marry cannot legally separate. True enough, Dessouki’s 
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parents have lived apart for decades. In that sense, they are separated. But finding this arrangement a “legal separation” would 

flout our decision in Morgan and read the word “legal” out of 

the statute. So Dessouki’s claim under the first half of (a)(3) 

fails as well. Because Dessouki does not satisfy any of 

§1432(a)’s alternatives, he is not entitled to derivative citizenship.

* * * * *

Dessouki raises many arguments on appeal. But in the end,

he is not a citizen. That is enough to deny his two petitions for 

review and moot the lingering agency issues. Our finding that 

Dessouki is not a citizen also moots his district-court suit. So 

we will dismiss his appeal of the District Court’s dismissal.