PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________
Nos. 17

- 3131 & 18

- 1510

_______________ ADEL DESSOUKI,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF

AMERICA
, Respondent

_______________
On Petition for Review of Decisions of the United States Department of Justice Board of Immigration Appeals (A029

- 635

- 695) Immigration Judge: Rosalind K. Malloy2 _______________
No. 18

- 2110

_______________ ADEL DESSOUKI, Appellant

v.

SECRETAR Y, UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENE RAL UNITED STATES OF AMERICA; ACTING DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; ACTING DISTRICT DIRECTOR UNITED STATES CITIZE NSHIP AND IMMIGRATION SERVICES

PHILADELPHIA DISTRICT OFFICE

_______________ On Appeal from the United States District Court for the Eastern D istrict of Pennsylvania (D.C. No. 2:17

- cv

- 02389) District Judge: Honorable Timothy J. Savage

_______________ Argued November 15, 2018

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

. (Filed February 14, 2019 )

_______________3 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

__________ __ ___
OPINION OF THE COURT

_______________ BIBAS, Circuit Judge

. People have several paths to press claims of U

. S

. citizens hip . They can raise citizenship as a defense to removal. They

can affirmatively petition the government. And they can bring their claims in federal court

. I n 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 issues4 here. So we will deny his petitions for review and dismiss his District Court appeal

. I. B ACKGROUND

Adel Dessouki ’s immigration saga spans decades. He was born in France in 1982

. H is parents never married , and t hey

s eparately 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 i n 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

. S o 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

re entry after deportation

. He recen tly pleaded guilty and was sentenced to time served

. Dessouki continued to claim citizenship

. He first asked an immigration judge to reopen his removal proceedings. The5 judge denied that motion , and the Board of Immigration Appeals affirmed

. Dessouki next b r ought a motion to rec onsider, which the Board also denied. He then filed an action in U.S. D istrict C ourt 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 r eview of these adverse rulings.

II. W E M UST D ECIDE D ESSOUKI ’ S C LAIM TO C ITIZENSHIP For years, Dessouki has claimed that he derived citizenship from his father. He has presented this argument to i mmigration judg es, the Board, and U.S. Citizenship and Immigration Services

. With one exception, it has been rejected at every turn

.
H e now adva nces the sam e argument here

. We too will reject it. But before getti ng 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 G en

. , 432 F.3d 226, 229 (3d Cir. 200 5)

. Today, we affirm that interpretation

. To begin, t he word “shall” i mposes a mandatory requirement. By obligating us to6 review nationality claims
, § 1252(b)(5)(A) must grant jurisdiction

. The obligation to decide entails t he power to do so. O ther parts of this pro vision confirm our reading; m uch 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 concern s . The Executive cannot deport a citizen. A “ claim of citizenship is thus a denial of an essential jurisdiction al 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 t hat the Executive does not overstep its bounds and deport citizens

. W e 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. D ESSOUKI I S N OT A C ITIZEN

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.3d7 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 mothe r 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 require s 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 th e 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’s8 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” o ut 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 ra ises 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 di smissal.