                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    June 26, 2006

                                                            Charles R. Fulbruge III
                            No. 05-51687                            Clerk
                          Summary Calendar


MOHAMMED H. GHARBI, also known as Mike Gharbi,

                                               Petitioner-Appellant,

versus

ALBERT W. BLAKEWAY, Supervisory DAO, Naturalization Unit, USCIC,
San Antonio; KENNETH PASQUARELL, District Director, USCIC; JOHN
ASHCROFT, U.S. ATTORNEY GENERAL; TOM RIDGE, SECRETARY, DEPARTMENT
OF HOMELAND SECURITY; EDUARDO AGUIRRE, JR., Director, USCIS,

                                              Respondents-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        (1:04-CV-00693-SS)
                       --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM*:

     Unsatisfied with the pace at which the U.S. Citizenship and

Immigration Service (“USCIS”) was processing his application for

naturalization,   in   October   2004   Mohammed   Gharbi    (“Gharbi”)

petitioned the district court under 8 U.S.C. § 1447(b) for it to

hear his naturalization claim.1    Just two weeks later, however, a

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     1
       Section 1447(b) authorizes an alien to “apply to the
district court for the district in which [he] resides for a hearing
on” his naturalization application if USCIS has not made a
decision on his application “before the end of the 120-day period
after the date on which” his naturalization examination is
federal grand jury in the Western District of Texas indicted Gharbi

for   conspiracy,   mail     fraud,    wire   fraud,      bank    fraud,     money

laundering,   and   aiding     and    abetting.         Faced    with   Gharbi’s

indictment, the district court reasoned that “a determination

regarding [his] eligibility for naturalization would be premature.”

It therefore stayed Gharbi’s § 1447(b) action pending resolution of

his criminal proceedings.      After having twice moved unsuccessfully

for the district court to reconsider its stay, Gharbi now appeals

the   district   court’s     order    denying     his    second     motion    for

reconsideration, arguing that the court abused its discretion in

ordering the stay of his § 1447(b) proceedings.                     We dismiss

Gharbi’s appeal for lack of jurisdiction.

      Generally, we have jurisdiction to consider only an appeal

from a district court’s final judgment.2            The parties agree that

the district court’s stay order —— or, more precisely, its order

denying Gharbi’s second motion for reconsideration of the stay

order —— is not a final appealable judgment.3                   Instead, Gharbi


conducted. The district court “has jurisdiction over the matter
and may either determine the matter or remand the matter, with
appropriate instructions, to the Service to determine the matter.”
Id.
      2
      See 28 U.S.C. § 1291; Kershaw v. Shalala, 9 F.3d 11, 13 (5th
Cir. 1993).    To be sure, Congress has expressly granted us
jurisdiction over certain interlocutory orders.     See 28 U.S.C.
§ 1292.   Neither party, however, asserts 28 U.S.C. § 1292 as a
basis for jurisdiction.
      3
       See Kershaw, 9 F.3d at 14 (“An order staying judicial
proceedings is ordinarily not considered final and is hence not
appealable.”).

                                      -2-
premises our jurisdiction on an exception to 28 U.S.C. § 1291’s

final judgment rule: Cohen v. Beneficial Industrial Loan Corp.’s

collateral order doctrine.4

      A    non-final    order    “come[s]    within     the   ‘small     class’    of

decisions      excepted       from   the     final-judgment       rule”       if   it

“conclusively determine[s] the disputed question, resolve[s] an

important issue completely separate from the merits of the action,

and     [is]   effectively      unreviewable       on   appeal    from    a    final

judgment.”5       We   have     restated    this    rule   with   the     following

elements:

      (1) The order must finally dispose of an issue so that
      the district court’s decision may not be characterized as
      tentative, informal or incomplete; (2) the question must
      be serious and unsettled; (3) the order must be separable
      from, and collateral to, the merits of the principal
      case; and (4) there must be a risk of important and
      irreparable loss if an immediate appeal is not heard
      because the order will be effectively unreviewable on
      appeal from final judgment.6

      Other than conclusionally stating that the district court’s

“stay order is an appealable collateral order,” Gharbi makes no

attempt to demonstrate exactly how the order denying his second

motion for reconsideration of the stay order meets our four-part

test.     Despite his omission, however, we conclude that it does not

meet the test.         And, as Gharbi asserts no other basis for our



      4
          337 U.S. 541 (1949).
      5
          Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
      6
          Kershaw, 9 F.3d at 14.

                                       -3-
jurisdiction, we dismiss his appeal.

     The four-part collateral order test is conjunctive: If the

order    does   not   satisfy   even    one   element,   we   lack   appellate

jurisdiction.      Here, it is at least arguable that the first three

elements have been satisfied.7          But it is more than arguable ——

indeed, we find it inescapable —— that the fourth element is not

satisfied.      This is because Gharbi has not demonstrated “a risk of

important and irreparable loss if an immediate appeal is not heard

because the order will be effectively unreviewable on appeal from

final judgment.”8       Gharbi seems to contend that, by itself, the

delay that the stay has caused and is causing to his naturalization

proceedings      is   sufficient   to    constitute      an   “important   and


     7
        First, the order denying Gharbi’s second motion for
reconsideration may finally dispose of the instant disputed issue
—— whether the stay should have been granted in the first place.
Like “every order short of a final decree,” the order is subject to
reconsideration and, thus, inherently tentative. Moses H. Cone
Mem’l Hosp. v. Mercury Constr., 460 U.S. 1, 12 (1983). But, as
the Moses H. Cone Court demonstrated, this alone is not enough to
deprive the order of sufficient finality for collateral order
doctrine purposes. See id. at 12-13 (holding that the order at
issue “‘conclusively determine[d] the disputed question” because
“there [was] no basis to suppose that the District Judge
contemplated any reconsideration of his decision”). The district
court here has twice denied reconsideration of his stay order; that
may be enough to find that the court “conclusively determine[d] the
disputed question.”    Second, the question is at least arguably
serious: Staying Gharbi’s § 1447(b) naturalization proceeding
pending the outcome of his potentially long criminal proceedings
could significantly delay resolution of his naturalization claim.
And third, the question whether the stay order should have been
granted is clearly separate from the merits of the § 1447(b)
proceeding in which the stay arose.
     8
         Kershaw, 9 F.3d at 14.

                                       -4-
irreparable loss.”   Delay alone, however, is not enough.9   “Cohen

requires some showing of extraordinary harm,” and Gharbi has not

made such a showing.10   This appeal, therefore, is DISMISSED for

lack of jurisdiction.




     9
      Cf. id. at 15 (reasoning that delayed recovery of fees under
the Equal Access to Justice Act is not a sufficient harm for
collateral order doctrine purposes).
     10
       EEOC v. Neches Butane Prods. Co., 704 F.2d 144, 148 (5th
Cir. 1983) (emphasis in original).

                               -5-
