2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-18-2011

Hubert Dorcant v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2654

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NOT PRECEDENTIAL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

Before: 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 order of removal. For the reasons 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 various fraudrelated offenses. The Department of Homeland Security (“DHS”) subsequently initiated 

removal proceedings 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 fraud 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 support of this argument, he alleged that he had previously applied for naturalization, 

and that his application had ultimately been granted. He conceded, however, that he had 
3

never taken the oath of allegiance or received a certificate of citizenship. In response to 

Dorcant’s claim, the Government averred that, while 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, Immigration 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 took the oath of allegiance and the certificate of United 

States citizenship 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 he 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 his removal from the United States. 

 

1

The Government’s file on Dorcant also included an earlier naturalization 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 that Dorcant was ineligible for Temporary Protected Status, and that 

Dorcant had “knowingly and intelligently” waived his right to pursue relief under the 

Convention Against Torture. (See id. at 47.)
4

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

Dorcant’s petition centers on his claim of citizenship. 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 nonetheless have jurisdiction to review his challenge to the agency’s 

denial of his citizenship claim, provided there is 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 pursuant 
5

in this case, we may review the agency’s rejection of Dorcant’s citizenship claim.

4

 Our 

review of this claim is plenary. See Jordon v. Att’y Gen. of the U.S., 424 F.3d 320, 328 

(3d Cir. 2005).

To obtain United States citizenship via naturalization, an applicant must, inter alia, 

take an 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 concedes that he never took this oath. Although

he claims that USCIS was responsible for the delay in scheduling his oath ceremony, this 

allegation does not somehow confer citizenship upon him. And, as the BIA highlighted, 

but for his convictions, he would still be eligible to obtain citizenship.

Dorcant argues that the BIA failed to consider his claim that the doctrine of 

equitable estoppel should apply in this case. For that doctrine to apply to the Government 

in the 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 officer 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 citizenship 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 development in this matter,” and his “effort 

to follow up in this matter through the phone was abortive.” (Id.) In April 2006, USCIS 

informed 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 fail to establish that the Government engaged in affirmative misconduct. 

And even 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 timely scheduled his oath 

ceremony (an argument that the Government never made in the first place). Although 

Dorcant argues that the Government should have been estopped from “cit[ing] [his] 

misconduct or conviction as a gainful factor to remove [him] from [the] United States,” 

(Pet’r’s Mem. in Supp. of Informal Br. 16), he provides no authority to support such a 

result. Accordingly, the fact that the BIA did not address his equitable estoppel claim 

was, at most, harmless error. See Yuan v. Att’y Gen. of the U.S., 642 F.3d 420, 427 (3d 
7

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 affect the outcome of the case.”).

In light of the above, and having considered Dorcant’s remaining arguments that 

are properly before us,5 we conclude that the agency did not err in rejecting his claim of 

citizenship. Accordingly, we will 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 proceeding in which 

USCIS is not even a party, is not properly before us.