                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                           _________________________

                                     No. 14-4814
                              _________________________

                      TEMUR KADIROV; KHUSAN KADIROV,

                                                           Appellants

                                             v.

    SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
    DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES;
              TONY BRYSON, District Director USCIS Philadelphia;
        EVANGELIA A. KLAPAKIS, Field Office Director USCIS Philadelphia

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                  (No. 2-13-cv-07390)
                      District Judge: Hon. Gerald Austin McHugh

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 16, 2015

             Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.

                                (Filed September 21, 2015)
                                      ____________

                                        OPINION*
                                      ____________

CHAGARES, Circuit Judge.




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          Brothers Temur and Khusan Kadirov appeal the District Court’s grant of summary

judgment in favor of Jeh Johnson, the Secretary of the Department of Homeland Security

(“DHS”); Leon Rodriguez, Director of the United States Citizenship and Immigration

Services (“USCIS”); and the District Director and Field Office Director of USCIS

Philadelphia (collectively, “the Government”). For the reasons that follow, we will

affirm.

                                                I.

          Because we write exclusively for the parties, we set forth only those facts

necessary to our disposition. The Kadirovs’ father, Akbar, obtained lawful permanent

resident (“LPR”) status in 2004. The brothers entered the country in 2000 and obtained

their LPR status derivatively through their father in 2005. In 2008, Akbar was charged

with fraudulently obtaining his asylum status, a crime to which he subsequently pled

guilty. In 2011, an immigration judge sustained removal charges against Akbar, and he

was removed that year.

          In 2009, Immigration and Customs Enforcement (“ICE”) initiated removal

proceedings against the Kadirov brothers on the ground that they were inadmissible at the

time of their entry because the basis of their asylum status was their father’s fraud. In

2012, DHS and the Kadirovs’ counsel filed a joint motion to terminate the proceedings

without prejudice against the Kadirovs in “the interest of justice.” Appendix (“App.”) 53.

The motion stated that Temur would “be allowed to proceed currently for naturalization,

these proceedings having been terminat[ed] without prejudice,” id. at 52, and it provided

as to Khusan that “the proceedings be withdrawn without prejudice . . . .” Id. The

                                                2
Kadirovs aver that their LPR cards were returned to them at the conclusion of these

proceedings, but they do not cite to the record for this point. They also say, without

citation, that “[t]he final Motion to Terminate contained date-specific provisions for each

of the family members to apply for naturalization, indicating an understanding on the part

of the ICE attorney who entered into the agreement to terminate that the Appellants’ LPR

status was retained.” Kadirov Br. 28.

       The Kadirovs later applied for naturalization with USCIS, and their applications

were denied on the ground that they had “failed to establish that [they] were lawfully

admitted as [] permanent resident[s] of the United States as required by [8 U.S.C. §

1427(a)(1)] and [8 U.S.C. § 1429].” App. 177. USCIS reasoned that because the

brothers had obtained status through Akbar, and because Akbar had obtained his status

fraudulently, the brothers had not proven that they were lawfully admitted LPRs. The

Kadirovs administratively appealed, and USCIS affirmed. They then filed a complaint in

the United States District Court for the Eastern District of Pennsylvania seeking judicial

review of USCIS’s denial of their naturalization applications. The parties agreed that

their dispute was a question of law and so submitted a Joint Statement of Facts and cross-

motions for summary judgment. The District Court granted summary judgment for the

Government, and the Kadirovs now appeal.

                                            II.

       The District Court had jurisdiction to review the denial of the Kadirovs’

naturalization applications de novo pursuant to 8 U.S.C. § 1421(c), and we have

jurisdiction to review the District Court’s order pursuant to 28 U.S.C. § 1291. We

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exercise plenary review over the District Court’s grant of summary judgment, applying

the same standard employed by the District Court. Curley v. Klem, 298 F.3d 271, 276

(3d Cir. 2002). That is, we “grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). In doing so, “we view all evidence in the light

most favorable to the non-moving party.” Kurns v. A.W. Chesterton Inc ., 620 F.3d 392,

395 (3d Cir. 2010).

                                            III.

       According to 8 U.S.C. § 1429, “no person shall be naturalized unless he has been

lawfully admitted to the United States for permanent residence in accordance with all

applicable provisions of this chapter.” The definition of “lawfully admitted for

permanent residence” is “the status of having been lawfully accorded the privilege of

residing permanently in the United States as an immigrant in accordance with the

immigration laws, such status not having changed.” 8 U.S.C. § 1101(a)(20).

       The petitioner bears the burden of proof in a naturalization proceeding and all

doubts about eligibility are resolved in favor of the Government. See 8 U.S.C. § 1439;

Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967).

       We have explained that “‘the term ‘lawfully’ denotes compliance with substantive

legal requirements, not mere procedural regularity.’” Gallimore v. Att’y Gen., 619 F.3d

216, 223 (3d Cir. 2010) (quoting In re Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983)




                                             4
(alterations omitted)).1 As a result, “an alien whose status has been adjusted to LPR —

but who is subsequently determined to have obtained that status adjustment through fraud

— has not been lawfully admitted for permanent residence because the alien is deemed,

ab initio, never to have obtained [LPR] status.” Id. (quotation marks omitted) (alteration

in original).2 Courts of appeals have acknowledged that, as an extension of this principle,

an alien innocent of wrongdoing who has obtained LPR status derivatively from someone

who has obtained his status by fraud has not been “lawfully admitted for permanent

residence.” Kyong Ho Shin v. Holder, 607 F.3d 1213, 1217 (9th Cir. 2010) (holding that

children who were granted LPR status by virtue of their mother’s fraudulently-obtained

status “were not substantively qualified for admission as LPRs at the time they entered

the United States,” even though they were not responsible for the fraud); see also Walker

v. Holder, 589 F.3d 12, 19–21 (1st Cir. 2009) (holding that child who obtained LPR

status when his grandparents falsely claimed he was their child on the visa petition had

not been lawfully admitted to the United States, in spite of his lack of intent to defraud

the Government).




1
 The Kadirovs argue that “Gallimore concerned interpretation of former § 212(c) of the
INA, not naturalization.” Kadirov Br. 19. But Longstaff, the case we quoted in
Gallimore, did concern naturalization, and the interpretation of “lawfully” that we
adopted in Gallimore thus applies here.
2
 The Kadirovs contend that “[t]he statutory definition of ‘lawfully admitted for
permanent residence’ is plain and requires no interpretation.” Kadirov Br. 11. We
elucidated the meaning of the phrase “lawfully admitted for permanent residence” in
Gallimore, and we will not revisit that determination here.

                                              5
       The Kadirovs argue that their case is distinct from Walker and Shin, because those

cases involved determinations by the Immigration Courts during removal proceedings

that stripped the children of their LPR statuses. Here, the Kadirovs argue, they “went

through their Immigration Court removal proceedings and emerged with their LPR status

not having changed.” Kadirov Br. 18 (quotation marks omitted). They focus on the

phrase “such status not having changed” in 8 U.S.C. § 1101(a)(20), and they contend that

the aborted naturalization proceedings “left [their] LPR status unchanged.” Id. at 16.

Though the Kadirovs are correct that their removal proceeding ended without a finding

that they were not LPRs, that outcome is not dispositive of their naturalization petition.

While the removal proceeding did not strip the Kadirovs of LPR status, neither did it cure

the underlying deficiency with the basis of that status, their father’s fraud; though the

Immigration Judge (“IJ”) did not find that they were LPRs, the IJ also did not find that

they were eligible for LPR status on any basis other than that fraud. Thus, the removal

proceeding did not conclude with any disposition as to the Kadirovs’ LPR status. The

Kadirovs contend that “if the issue had proceeded to litigation the regulations allow each

of the family members to demonstrate their own individual eligibility to show they meet

the refugee definition,” and so they “each would have had the option of proving their own

independent eligibility for both the refugee/asylum and keeping their own LPR status.”

Kadirov Br. 26. But they voluntarily forsook this opportunity when they agreed to the

termination of their removal proceedings.

       The Kadirovs’ estoppel argument likewise fails. They contend that “the statute

and the regulations provide for the proper termination, revocation or rescission of status

                                              6
that may have been unlawfully obtained,” and that where DHS agreed to terminate the

removal proceedings, “the Agency is controlled by its prior decision.” Kadirov Br. 23.

A party asserting estoppel against the Government bears the burden of proving “(1) a

misrepresentation by the government, (2) which [he] reasonably relied upon; (3) to [his]

detriment and (4) affirmative misconduct.” DiPeppe v. Quarantillo, 337 F.3d 326, 335

(3d Cir. 2003). The Kadirovs claim that they “relied upon the agreement to terminate

their removal proceedings and the direct references to their eligibility to apply for

naturalization.” Kadirov Br. 33. This argument fails. In agreeing to terminate the

removal proceedings without prejudice, DHS did not guarantee the Kadirovs’ eligibility

for naturalization; instead, it simply exercised its discretion to stop pursuing removal.

The termination of the proceedings did not estop USCIS from finding that the Kadirovs

had failed to meet their burden of showing eligibility.

       Finally, the Kadirovs argue that “[t]he Court cannot base its decision on a reason

for Agency action that was not asserted by the Agency in its original decision.” Kadirov

Br. 29. This general principle of judicial review of agency decisions — which applies to

“determination[s] or judgment[s] which an administrative agency alone is authorized to

make,” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) — is incompatible with the

clear command of 8 U.S.C. § 1421, according to which judicial review of a denial of a

naturalization application “shall be de novo.” This argument thus also fails.

       An applicant bears the burden of showing his entitlement to naturalization. See,

e.g., 8 U.S.C. § 1439; United States v. Szehinsky, 277 F.3d 331, 334 (3d Cir. 2002). The

Kadirovs bore the burden of showing substantive compliance with the requirements for

                                              7
obtaining LPR status. See Gallimore, 619 F.3d at 223. Because they could not show that

they were lawfully admitted as permanent residents, there was no genuine issue of

material fact as to their eligibility for naturalization, and so we will affirm the District

Court’s grant of summary judgment.

       Although this outcome leaves the Kadirovs in the precarious position of being

LPRs who are not currently the target of removal proceedings but who cannot pursue

naturalization on the basis of their LPR status, this is the position they bargained for in

agreeing to terminate the removal proceedings.

                                              IV.

       For the reasons stated herein, we will affirm the judgment of the District Court.




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