2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-18-2011 

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. Att y Ge n U S A

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-2654

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w . v i l l a no v a . e du/thir dc ir c uit_2011/177NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 2654

___________ HUBERT DORCANT ,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

_________________________________ ___ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A027

- 471

- 100 ) Immigration Judge: Honorable Walter A. Durling

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

November 17 , 2011
B efore: CHAGARES, VANASKIE AND STAPLETON , Circuit Judges

(Opinion filed : November 18, 2011 )

___________ OPINION

___________2

PER CURIAM Hubert Dorcant, proceeding pro se, petitions for review of the Board of Immigration Appeals’ (“BIA”) final orde r of removal. For the rea sons that follow, we
will deny the petition

. I.
Dorcant , a native of Haiti , was admitted to the United States as a conditional permanent resident in 1995

. He became a lawful permanent resident in 1997

. In March 2009, the United States District Court for the District of New Jersey sentenced him to 41 months’ imprisonment following his conviction for sixteen counts of v arious fraud

related offenses. T he Department of Homeland Security (“DHS”) subsequently initiated removal procee dings against him , charging him with being removable as an alien convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2) (A) (iii) , and as an alien
convicted of a violation of , or an attempt or a conspiracy to violate, 18 U.S.C. § 1546 (relating to frau d and misuse of visas, permits, and other entry documents), see 8 U.S.C. § 1227(a)(3)(B)(iii)

. In the proceedings before the Immigration Court , Dorcant, who acted without an attorney, argued that he was not subject to removal because he is a United States citizen. In suppo rt of this argument, he alleged that he had previously applied for na turalization , and that his application had ultimately been granted

. He conceded , however, that he had3

never taken the oath of allegiance or received a certificate of c itizenship. In response to Dorcant’s claim , the Government averred that, whi le its file on him indicated that he had
submitted a naturalization application in 2004 , there was no evidence that this application
had ever been granted. 1 In March 2011, Immigr ation Judge (“IJ”) Walter A. Durling rejected Dorcant’s claim of citizenship :

While the Court accepts [Dorcant’s] contention that he applied for United States citizenship and took the exam, apparently passed the exam, he was never naturalized, he never too k the oath of allegiance and the certificate of United States citizen ship was never issued to him. Between the time of him being notified by [United States Citizenship and Immigration Services (“USCIS”)] that he was eligible for citizenship and the time h e was perhaps scheduled to become a citizen, he committed these offenses which forms the basis of these removal proceedings. While [he] has asked the Court to issue the oath of allegiance to him, the Court has explained to [him] it is without authority to do that. [Dorcant] is no longer eligible for citizenship because of his aggravated felony convictions. (A. R. at 47.) After rejecting this claim, the IJ found that Dorcant was ineligible for any other relief from removal. 2 As a result, the IJ ordered h is removal from the United States

.

1 The Government’s file on Dorcant also included an earlier naturaliz ation application that he had submitted in the 1990s. The Government averred that this application had been marked “NF,” for non

- filed, because, when Dorcant submitted it, he was not eligible for naturalization. ( See A.R. at 79.) 2 The IJ found t hat Dorc ant was ineligible for Temporary Protected S tatus, and that Dorcant had “knowingly and intelligently” waived his right to pursue relief under the Co nvention Against Torture . ( See id. at 47. )4

On appeal, the BIA upheld the IJ’s order of removal

. In doin g so, the BIA , like the IJ before it, rejected Dorcant ’s claim of citizenship :

[Dorcant] first applied for citizenship in 2004 and took and passed t he exam. In 2005, he was told that his application for citizenship had been granted. However, he never took the oath of allegiance or was issued a certificate of United States citizenship. Delays resulted in him not being scheduled for the oath ceremony until after he committed his criminal offenses. ( Id. at 3

. ) The BIA also rejected Dorcant’s claim that his due process rights had been
violated , concluding that he “has shown neither error nor prejudice here. Though he blames the federal government for the delay, he would yet be eligible for United States citizenship had he not committed the crimes that resulted in his 16 federal convictions.” ( Id. )
Dorcant now seeks review of the BIA’s decision.
II.
Do rcant’s petition centers on his claim of c itizen ship

. Although we generally lack jurisdiction to review an aggravated felon’s final order of removal, see 8 U.S.C. § 1252(a)(2)(C), we nonethel ess have jurisdiction to review his challenge to the agency’s denial of his citizenship claim , provided there i s no genuine issue of material fact with respect to that claim. 3 See Brandao v. Att’y Gen. of the U.S. , 654 F.3d 427, 428 (3d Cir.
2011 ) (citing 8 U.S.C. § 1252(b)(5)(A))

. Since there is no genuine issue of material fact

3 We also have jurisdiction to review constitutional claims and questions of law pursuant5

in this case, we may review the a gency’s rejection of Dorcant’s citizenship cla i m. 4 Our
review of this claim is plenary

. See Jordon v. Att’y Gen. of the U.S. , 42 4 F.3d 320, 328 (3d Cir. 2005).
To obtain United States citizenship via naturalization, an applicant must, inter alia,
take a n oath of allegiance to the United States in a public ceremony

. See 8 U.S.C. § 1448(a) ; 8 C.F.R. § 337.1 (a)

. Dorcant conce des that he never took this oath

. Although
he claims that USCIS was responsible for the delay in scheduling his oath ceremony, thi s allegation does not somehow confer citizenship upon him. And, as the BIA highlighted , but for his conviction s , he would still be eligible to obtain citizenship

. Dorcant argues that the BIA failed to consider his claim that the doctrine of equitable est oppel should apply in this case

. For that doctrine to apply to the Government
in t he immigration context, one must demonstrate “(1) a misrepresentation; (2) upon which he reasonably relied; (3) to his detriment ; and (4) affirmative misconduct.”
Mudric v. Att’y Gen. of the U.S. , 469 F.3d 94, 99 (3d Cir. 2006). In his brief before the BIA, Dorcant claimed that, in September 2005, a USCIS officer interviewed him concerning his naturalization application. ( See A.R. at 9.) At the end of the interview,
the o fficer told him that he had “met all requirements for naturalization,” and that the

to 8 U.S.C. § 1252(a)(2)(D). 4 Although the parties dispute whether USCIS actually granted Dorcant’s 2004 naturalization application, this disagreement does not raise a material issue of fact, for, as explained below, Dorcant’s ci tizenship claim can be resolved without regard to the outcome of his naturalization application.6

agency would schedule his “final hearing” in less than a month. ( Id. ) According to Dorcant, USCIS failed to notify him “of any develo pment in this matter,” and his “effor t to follow up in this matter through the phone was abortive.” ( Id. ) In April 2006, USCIS
inf ormed him that his oath ceremony had been delayed due to the “FBI name check program.” ( Id. at 10

. ) Dorcant was indicted for his criminal offenses a few months later. Assuming arguendo that these allegations, some of which Dorcant did not present to the IJ, were properly before the BIA, see 8 C.F.R. 1003. 1 (d)(3)(iv) (“Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the [BIA] will not engage in factfinding in the course of deciding appeals.”), they f

ail to establish that the Government eng aged in affirmative misconduct.
And e ven if these allegations were enough to establish affirmative misconduct, applying the doctrine of equitable estoppel would not have changed the outcome of Dorcant’s appeal . Indeed, were the BIA to have applied the doctrine, it seems that the Government
would have been estopped only from arguing that USCIS had time ly scheduled his oath
ceremony (an argument that the Government never made in the first place )

. Although
Dorcant argue s that the Government should have been estopped from “cit[ing] [his] misconduct or conviction as a gainful factor to remove [ him] from [t he] United States,” (Pet’r’s Mem. in Supp. of Informal Br. 16), he provides no authority to sup port such a result. Accordingly , the fact that the BIA did not address his equitable estop pel claim
was, at most, ha rmless error
. See Yuan v. Att’y Gen. of the U.S. , 642 F.3d 420, 427 (3d7

Cir. 2011) (“[W] e will view an error as harmless and not necessitating a remand to the BIA when it is highly probable that the error did not af fect the outcome of the case.”). In light of the above, and having considered Dorca nt’s remaining arguments that are properly before us, 5 we conclude that the agency did not err in rejecting his claim of
citiz e nship

. Accordingly, we wi ll deny his petition for review.

5 To the extent Dorcant directly challenges USCIS for failing to schedule his oath ceremony, that claim, raised more than five years after the fact in a proce eding in which USCIS is not even a party, is not properly before us.