16-2339-cv Phillips v. Yates 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 30 th day of January, two thousand seventeen.

PRESENT: PETER W. HALL, CHRISTOPHER F. DRONEY, Circuit Judges, ALISON J. NATHAN,  District Judge.

_____________________________________ F AY P HILLIPS , Petitioner-Appellant , v. 16-2339-cv

S ALLY Q. Y ATES , A CTING A TTORNEY G ENERAL OF THE U NITED S TATES , L EON R ODRIGUEZ , D IRECTOR OF U NITED S TATES C ITIZENSHIP AND I MMIGRATION S ERVICES , P HYLLIS C OVEN , D IRECTOR FOR D ISTRICT OF N EW Y ORK , T IM H OUGHTON , N EW Y ORK F IELD O FFICE D IRECTOR

. Respondents-Appellees .†

 Judge Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation. † The Clerk of Court is respectfully requested to amend the caption to conform to the above.2 _____________________________________ FOR PETITIONER -APPELLANT: P AUL B. G ROTAS , New York, NY.

FOR RESPONDENTS -APPELLEES: S COTT A. D UNN , Assistant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY. Appeal from a June 10, 2016 judgment of the Un ited States District Court for the Eastern District of New York (Hurley, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. Petitioner-Appellant Fay Phillip s appeals the district cour t’s judgment dismissing her petition that challenged the 2000 denial by the form er Immigration and Naturalization Service of her naturalization application and the 2014 decision by the Unit ed States Citizenship and Immigration Services (“USCIS”) declining to c onstrue her untimely admi nistrative appeal as a motion to reopen or to reconsider. We assume th e parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. An independent review of the record and rele vant case law reveals that the district court properly dismissed the petition. Generally, district court review of an agency action is available

under the Administrative Procedure Act unless ot her “statutes preclude judicial review.” 5 U.S.C. § 701(a)(1); Delgado v. Quarantillo , 643 F.3d 52, 55 (2d Cir. 2011). Here, the Immigration and Nationality Act limits the district c ourt’s review of the denial of naturalization to situations in which an “application for naturaliza tion . . . is denied[] after a hearing before an immigration officer . . . .” 8 U.S.C. § 1421(c). This administra tive exhaustion requirement “is ‘mandatory, and courts are not free to dispense with [it].’” Escaler v. U.S. Citizenship and3 Immigration Servs. , 582 F.3d 288, 292 (2d Cir. 2009) (a lteration in or iginal) (quoting Bastek v. Fed. Crop Ins. Co. , 145 F.3d 90, 94 (2d Cir. 1998)). The exhaustion argument that Phil lips presses is, in essence, th at an untimely request for a hearing (here one that was 14 years late) is sufficien t to exhaust administrative remedies. It is not. The Supreme Court has emphasized that exhaustion “means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Woodford v. Ngo , 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry , 286 F.3d 1022, 1024 (7th Cir. 2002)). Accordingly, because Phillips did not file her requ est for a hearing within thirty days as required under 8 C.F.R. § 336.2(a), she did not properly exhaus t her administrative reme dies as required for district court review of the denial of her naturalization application. See 8 U.S.C. § 1421(c);

Escaler , 582 F.3d at 292; Woodford , 548 U.S. at 90. Because the failure to exhaust is dispositive of Phillips’s request for review of the denial of her naturalization application, we do not reach th e arguments regarding the six-year statute of

limitations. See INS v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issu es the decision of which is unnecessary to the results they reach.”). Finally, we discern no erro r in the district court’s conclusion that USCIS was not required to construe Phillips’s untimely hearing request as a motion to reopen given the combination of delay and the lack of documenta tion and detail in her request for a hearing. See 5 U.S.C. § 706(2)(A)–(E); see also 8 C.F.R. §§ 103.5(a)(2), 103.5(a)(3), 336.2(c)(2)(ii). We have considered all of Phillips’s remain ing arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk