                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 18-3240

                                     ______________

                              THOMAS CALVIN ALEXIS,
                                          Petitioner

                                             v.

                            ATTORNEY GENERAL OF THE
                            UNITED STATES OF AMERICA,
                                           Respondent
                                  ______________

                       ON PETITION FOR REVIEW OF A
              DECISION OF THE BOARD OF IMMIGRATION APPEALS
                                 (A044-251-256)
                        Immigration Judge: Leo A. Finston
                                ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 10, 2019
                                  ______________

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

                           (Opinion Filed: September 12, 2019)
                                    ______________

                                        OPINION *
                                     ______________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Thomas Alexis seeks review of a decision from the Board of Immigration Appeals

(“BIA”) dismissing his appeal from a decision of an Immigration Judge (“IJ”) finding

him removable for having committed an aggravated felony that resulted in a loss to the

victims of more than $10,000. The government asserts that we lack jurisdiction over this

petition because the BIA’s decision, which remanded the record to the IJ pursuant to 8

C.F.R. § 1003.1(d)(6) “for the purpose of allowing the Department of Homeland Security

the opportunity to complete or update identity, law enforcement, or security

investigations or examinations, and further proceedings, if necessary, and for the entry of

an order as provided by 8 C.F.R. § 1003.47(h),” A.R. 6, was not a final order of removal.

While we agree that the BIA’s decision was not a final order of removal, our agreement

is based on a point not raised by either of the parties: the fact that the IJ never

determined whether Alexis is or is not a citizen.

       Before the IJ, Alexis claimed to have derived citizenship from his naturalized

father. 1 At a hearing on July 19, 2017, the IJ, in reviewing the allegations set forth in the

Notice to Appear (“NTA”), noted that “[a]llegation number one was not established yet.”



       1
         Alexis based this claim on 8 U.S.C. § 1432(a) (repealed by Pub.L. 106-395, Title
I, § 103(a), Oct. 30, 2000, 114 Stat. 1632), which allows a child to derive citizenship
from his or her parent under specific circumstances. Relevant to Alexis, a child qualifies
for derivative citizenship upon “[t]he naturalization of the parent having legal custody of
the child when there has been a legal separation of the parents,” so long as the parent’s
naturalization occurs before the child’s eighteenth birthday and the child is residing in the
United States as a legal permanent resident. 8 U.S.C. § 1432(a)(3)-(5).
                                               2
A.R. 78. Allegation number one states “[y]ou are not a citizen or national of the United

States.” A.R. 300. Subsequently, in her decision, the IJ noted that she “will not address

[Alexis’s] claim to citizenship to allow the parties to provide additional evidence on this

issue.” A.R. 49. However, nothing in the record indicates that the question of Alexis’s

citizenship was ever resolved.

       As we recently recognized, “[t]he Executive cannot deport a citizen. A ‘claim of

citizenship is thus a denial of an essential jurisdictional fact’ in a removal proceeding.”

Dessouki v. Att’y Gen., 915 F.3d 964, 967 (3d Cir. 2019) (quoting Ng Fung Ho v. White,

259 U.S. 276, 284 (1922)). Because citizens cannot be removed, it is necessary for

immigration judges to make an initial determination that the individual before them is a

noncitizen before ruling on the question of removal. Given that this essential condition

precedent was not found by the IJ, the removal order is not final. We therefore must

dismiss the petition.

       Note two final points about the scope of our holding. First, because Alexis’s

unresolved citizenship claim requires us to dismiss, we need not resolve the other

jurisdictional hurdle on which the parties disagree: whether Alexis’s removal

proceedings are final even though the IJ has not yet completed background checks under

8 C.F.R. § 1003.47(h). See Vakkar v. Att’y Gen., 519 F.3d 143, 147 (3d Cir. 2008);

Yusupov v. Att’y Gen., 518 F.3d 185, 196 n.19 (3d Cir. 2008). Second, while we cannot

remand with instruction because of the lack of jurisdiction, we nonetheless anticipate that

the IJ will address the unresolved citizenship claim while considering the other issues on
                                              3
remand from the BIA. 2




      2
         In recommending that a decision be made as to Alexis’s citizenship, we note that
the laws of Trinidad and Tobago recognize common law marriage and allow for the legal
separation of couples that have been cohabiting without the necessity of court action.
Cohabitational Relationships Act, Act No. 30 of 1998, ch. 45:55, sec. 24 (“A man and a
woman who are not married to each other may enter into a cohabitation agreement or a
separation agreement for the purpose of facilitating their affairs . . . .”).
                                            4
