                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-3618
                                       ___________

                                   OSCAR BAPTISTE,
                                              Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                 Respondent
                   ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A078-396-554)
                       Immigration Judge: Honorable Leo Finston
                       ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 20, 2019

             Before: KRAUSE, SCIRICA, and NYGAARD, Circuit Judges

                              (Opinion filed: May 23, 2019)
                                     ___________

                                        OPINION *
                                       ___________


PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Oscar Baptiste is a citizen of Panama who entered the United States on a B-2

visitor visa in January 2001. He adjusted his status to lawful permanent resident in

October 2003. In July 2007, Baptiste filed a naturalization application. On July 31,

2008, the United States Citizenship and Immigration Services (USCIS) denied that

application because it concluded that Baptiste lacked good moral character. That finding

stemmed from Baptiste’s arrest for domestic violence in May 2008. Those Connecticut

state charges (assault in the third degree and risk of injury to a child) were later

dismissed. In March 2011, Baptiste filed a second naturalization application, which was

denied on February 19, 2019. 1

       In March 2013, a federal jury found Baptiste guilty of knowingly and intentionally

importing cocaine. See 21 U.S.C. §§ 952 and 960(b)(2)(B)(ii). He was sentenced to 108

months in prison, which was later reduced to 87 months. After completing his sentence,

the Government took Baptiste into immigration custody. He was charged with

removability for having been convicted of an aggravated felony as defined in 8 U.S.C.

§ 1101(a)(43)(B) (illicit trafficking in a controlled substance), 8 U.S.C.

§ 1227(a)(2)(A)(iii), and for having been convicted of a controlled substance offense, 8

U.S.C. § 1227(a)(2)(B)(i).

       In immigration court, Baptiste filed a motion to terminate the proceedings, arguing


1
 Meanwhile, in November 2018, Baptiste applied for relief in the United States District
Court for the District of New Jersey, seeking to compel the USCIS to adjudicate his
naturalization application or to have the District Court declare that he is a United States
citizen. Baptiste v. Att’y Gen., D.N.J. Civ. No. 2:18-cv-16826.
                                              2
that the USCIS had improperly denied his first naturalization application. An

Immigration Judge concluded that Baptiste was removable and denied his request to

terminate, noting that only a District Court has jurisdiction over an appeal from the

USCIS’s denial of a naturalization application. On November 2, 2018, the Board of

Immigration Appeals dismissed Baptiste’s appeal, stating that it lacked jurisdiction to

review the denial of the naturalization application and explaining that Baptiste did not

present any affirmative communications from the Department of Homeland Security

attesting to his prima facie eligibility for naturalization. See In re Acosta Hidalgo, 24 I.

& N. Dec. 103, 105 (BIA 2007) (providing that the BIA may terminate removal

proceedings to allow pursuit of a naturalization application where DHS has provided “an

affirmative communication attesting to an alien’s prima facie eligibility for

naturalization”). Baptiste filed a pro se petition for review of the BIA’s decision. 2 In

support of his petition, Baptiste seeks to file a reply brief out of time and a supplemental

appendix.

       Baptiste argues that his due process rights were violated because the USCIS’s lack

of good moral character determination in 2008 was based on domestic violence charges

that were later dismissed. He also asserts that the USCIS’s “unreasonable and

unnecessary” delay in adjudicating his 2011 naturalization violated his due process rights.


2
 Because Baptiste did not challenge the Board’s determination that he is removable
under § 1227(a)(2)(A)(iii) and § 1227(a)(2)(B)(i), he has waived those issues. See Chen
v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).

                                              3
Because his aggravated felony conviction now prevents him from demonstrating that he

maintained good moral character, see 8 U.S.C. § 1101(f)(8), Baptiste asks for retroactive

relief. See Barden v. Keohane, 921 F.2d 476, 478 n.2 (3d Cir. 1990) (stating that “[n]unc

pro tunc” consideration “permits acts to be done after the time they should have been

done with a retroactive effect”).

       We lack jurisdiction “to review any final order of removal against an alien who is

removable by reason of having committed a criminal offense covered in

[§ 1227(a)(2)(A)(iii) or 1227(a)(2)(B)].” 8 U.S.C. § 1252(a)(2)(C). But we retain

jurisdiction to review colorable constitutional claims and questions of law presented in

petitions for review of final removal orders. 3 See 8 U.S.C. § 1252(a)(2)(D); see

Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). We therefore may consider

the legal question whether the IJ and the BIA lacked jurisdiction to consider Baptiste’s

challenge to the denial of his naturalization application. Cf. Bhargava v. Att’y Gen., 611

F.3d 168, 170 (3d Cir. 2010) (reviewing de novo question whether BIA erred in

determining that it lacked jurisdiction to review Department of Homeland Security’s

denial of petitioner’s asylum status). We also have jurisdiction to review Baptiste’s


3
  We may review a claim of nationality if there is no genuine issue of material fact with
respect to that claim. See 8 U.S.C. § 1252(b)(5). Here, however, Baptiste does not claim
that he is a national of the United States. Instead, he challenges the denial of his
application for naturalization. See Abiodun v. Gonzales, 461 F.3d 1210, 1216 (10th Cir.
2006) (holding that, in adjudicating a petition for review, a court may address “only a
claim that the petitioner is a national of the United States, not a claim that the petitioner’s
application for naturalization was wrongly denied”).

                                               4
assertion that his due process rights have been violated. See Bonhometre v. Gonzales,

414 F.3d 442, 445-46 (3d Cir. 2005).

       “[N]either the Board nor the Immigration Judges have jurisdiction to determine an

alien’s eligibility for naturalization ….” In re Hidalgo, 24 I. & N. Dec. 103, 105-06 (BIA

2007); Zegrean v. Att’y Gen., 602 F.3d 273, 275 (3d Cir. 2010) (noting that the

Immigration and Nationality Act “dictates that the ‘sole authority to naturalize persons as

citizens … is conferred upon the Attorney General.’” (quoting Perriello v. Napolitano,

579 F.3d 135, 142 (2d Cir. 2009))). Thus, the BIA properly held that it lacked

jurisdiction to consider Baptiste’s challenge to the USCIS’s 2008 denial of his

naturalization application. To challenge that denial, Baptiste should have timely sought

review before an immigration officer. See 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2(a).

Thereafter, an appropriate District Court could have reviewed the immigration officer’s

decision. See 8 U.S.C. § 1421(c).

       We also conclude that the delay in processing Baptiste’s 2011 naturalization

application cannot serve as a basis for relief. The relevant regulation provides that “[a]

decision to grant or deny the [naturalization] application shall be made at the time of the

initial examination or within 120-days after the date of the initial examination of the

applicant for naturalization ….” 8 C.F.R. § 335.3(a). If an applicant for naturalization is

not notified of a decision within 120 days of his examination under oath, he can apply to

the appropriate United States District Court for a hearing on the naturalization

application. 8 U.S.C. § 1447(b). Baptiste did not use this process while he was still
                                             5
potentially eligible for naturalization. Instead, he waited over seven years after filing his

2011 naturalization application to request a hearing before the District Court. In the

meantime, his 2013 aggravated felony conviction rendered him ineligible for

naturalization. See 8 U.S.C. §§ 1101(f)(8), 1427(a)(3). Under these circumstances,

Baptiste is estopped from asserting that the delay in adjudicating his naturalization

application violated his due process rights. See Duran-Pichardo v. Attorney General, 695

F.3d 282, 286-87 & n.7 (3d Cir. 2012) (relying on estoppel to hold that a petitioner who

“failed to invoke the very statutory and regulatory scheme that Congress enacted to

address this type of delay,” could not thereafter “assert that he was deprived of due

process of law.”).

       Finally, to the extent that Baptiste argues that he is entitled to retroactive relief, we

reject his claim. As noted above, Baptiste’s conviction for an aggravated felony renders

him presently ineligible for naturalization. He argues, however, that his naturalization

application should be considered as if he were not an aggravated felon because the

USCIS unreasonably delayed adjudicating the naturalization application that he filed in

2011. In Duran-Pichardo, the petitioner sought relief on the ground that the USCIS

should have granted his naturalization application before he was convicted of an

aggravated felony. 695 F.3d 282, 287-88 (3d Cir. 2012). We rejected this claim, noting

that 8 U.S.C. § 1429 prohibits the naturalization of any person against whom a final order

of removal has been entered, id. at 277, and observing that equitable relief may not be

granted in contravention of the expressed intent of Congress, id. at 288. Because
                                               6
Baptiste, like Duran-Pichardo, is subject to a final order of removal, he is not entitled to

nunc pro tunc relief.

       Accordingly, we will deny the petition for review. Baptiste’s motion to file his

reply brief out of time and for leave to supplement the appendix is granted.




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