    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 JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 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 (WITH THE NOTATION ASUMMARY 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 Foley Square, in the City of New York, on the
    30th day of January, two thousand seventeen.

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

    FAY PHILLIPS,

                               Petitioner-Appellant,

                        v.                                                                    16-2339-cv

    SALLY Q. YATES, ACTING ATTORNEY
    GENERAL OF THE UNITED STATES, LEON
    RODRIGUEZ, DIRECTOR OF UNITED STATES
    CITIZENSHIP AND IMMIGRATION SERVICES,
    PHYLLIS COVEN, DIRECTOR FOR DISTRICT OF
    NEW YORK, TIM HOUGHTON, NEW YORK
    FIELD OFFICE DIRECTOR.

                               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.
_____________________________________

FOR PETITIONER -APPELLANT:                             PAUL B. GROTAS, New York, NY.

FOR RESPONDENTS -APPELLEES:                            SCOTT A. DUNN, 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 United 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 Phillips appeals the district court’s judgment dismissing her

petition that challenged the 2000 denial by the former Immigration and Naturalization Service of

her naturalization application and the 2014 decision by the United States Citizenship and

Immigration Services (“USCIS”) declining to construe her untimely administrative appeal as a

motion to reopen or to reconsider. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

       An independent review of the record and relevant 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 other “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 court’s review of the denial of naturalization to

situations in which an “application for naturalization . . . is denied[] after a hearing before an

immigration officer . . . .” 8 U.S.C. § 1421(c). This administrative exhaustion requirement “is

‘mandatory, and courts are not free to dispense with [it].’” Escaler v. U.S. Citizenship and

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Immigration Servs., 582 F.3d 288, 292 (2d Cir. 2009) (alteration in original) (quoting Bastek v.

Fed. Crop Ins. Co., 145 F.3d 90, 94 (2d Cir. 1998)).

       The exhaustion argument that Phillips presses is, in essence, that an untimely request for a

hearing (here one that was 14 years late) is sufficient 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 request for a hearing within thirty days as required

under 8 C.F.R. § 336.2(a), she did not properly exhaust her administrative remedies 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 the 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 issues the decision of which is unnecessary to the

results they reach.”). Finally, we discern no error 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 documentation 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 remaining 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

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