Phillips v. Boente ( 2017 )

16-2339-cv
Phillips v. Boente
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
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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
1st day of February, 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
DANA J. BOENTE, 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, Varuni Nelson, 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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