NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 19-2425
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                                   PATRICK OWUSU,
                                                   Appellant
                                    _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. No. 3-15-cr-0285-001)
                        District Judge: Hon. James M. Munley
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 25, 2020

              Before: McKEE, JORDAN, and RENDELL, Circuit Judges.

                                (Filed: September 28, 2020)
                                     _______________

                                        OPINION ∗
                                     _______________

JORDAN, Circuit Judge.

       Patrick Owusu appeals the District Court’s denial of a motion to dismiss his

indictment for hindering removal. He argues that the Court erred in deciding his motion


       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
without first holding an evidentiary hearing. Because the District Court failed to address

a threshold question before deciding whether to hold a hearing, we will vacate and

remand.

I.     BACKGROUND

       Patrick Owusu came to the United States from Sierra Leone as a legal permanent

resident in 1996. He joined his mother here, and she became a United States citizen later

that same year, though Owusu did not apply for citizenship at that time. He was later

convicted of an aggravated felony, as a result of which he was ordered removed from the

United States. Immigration officials attempted to enforce that order on two occasions,

but Owusu physically resisted them both times. He was then indicted for hindering

removal in violation of 8 U.S.C. § 1253(a)(1)(A)-(C).

       Owusu filed a motion to dismiss the indictment, claiming to be a United States

citizen. He pointed to two unsuccessful citizenship applications he had filed in which he

claimed, for the first time, that he was born in 1980. Based on that claim, he argues that

he was a minor when his mother became a naturalized citizen in 1996 and so he is

entitled to derivative citizenship. 8 U.S.C. § 1432(a) (1999) (repealed and replaced by 8

U.S.C. § 1431(a)). The District Court denied his motion without holding an evidentiary

hearing, ruling that it did not have jurisdiction, and in the alternative, that there was

substantial evidence in the administrative record that Owusu is not a citizen. Owusu then

pled guilty and was removed to Ghana.

       He now appeals.



                                               2
II.    DISCUSSION1

       The issue presented to us is whether the District Court erred in failing to hold an

evidentiary hearing on Owusu’s claim that he is a United States citizen. 2 We cannot

answer that question, however, because the District Court did not make the necessary

threshold determination concerning whether there was a genuine issue of material fact.

       Section 1252(b)(7)(B)(i) of title 8 of the United States Code provides that “[i]f the

defendant claims in [a] motion to be a national of the United States and the district court

finds that … no genuine issue of material fact about the defendant’s nationality is

presented, the court shall decide the motion only on the administrative record on which

the removal order is based[.]” In contrast, if the district court finds that “a genuine issue

of material fact about the defendant’s nationality is presented, the court shall hold a new

hearing on the nationality claim[.]”

The District Court thus has



       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and 8 U.S.C.
§ 1252(b)(7). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review questions
of law, such as whether the correct legal standard was applied, de novo. Vakker v.
Attorney Gen. of U.S., 

, 146 (3d Cir. 2008).
       2
         The government originally contended that the District Court did not have
jurisdiction over Owusu’s motion. But it concedes that we resolved that issue in favor of
jurisdiction in our precedential opinion in United States v. Dohou, 

(3d Cir.
2020).
       3
           Subsection (b)(7)(B) provides in full:

       If the defendant claims in the motion to be a national of the United States
       and the district court finds that--
       (i) no genuine issue of material fact about the defendant’s nationality is
       presented, the court shall decide the motion only on the administrative
       record on which the removal order is based and the administrative findings
                                               3
no discretion in the matter. There are only two possible outcomes – if the court

concludes that there is a genuine issue of material fact, it “shall” hold a hearing; if it

concludes there is no such issue, it “shall” not. 4 Here, unfortunately, the Court created an

option three.

       The Court did not make any finding regarding whether there was a genuine issue

of material fact pertaining to Owusu’s citizenship. It instead stated that its “analysis

would be limited to whether the administrative findings of fact are supported by

reasonable, substantial, and probative evidence on the record as a whole.” (App. at 83.)

It then ruled that there was substantial evidence in the record of Customs and

Immigration Services’ denial of Owusu’s citizenship applications that Owusu was born in

1977 and thus not entitled to derivative citizenship on the basis of his mother’s

naturalization in 1996, at which point he was 19 years old and no longer a minor. But, as

the plain language of the statute makes clear, substantial evidence review of the

administrative record without an evidentiary hearing is only appropriate after the court




       of fact are conclusive if supported by reasonable, substantial, and probative
       evidence on the record considered as a whole; or
       (ii) a genuine issue of material fact about the defendant’s nationality is
       presented, the court shall hold a new hearing on the nationality claim and
       decide that claim as if an action had been brought under section 2201 of
       Title 28.
       The defendant may have such nationality claim decided only as provided in
       this subparagraph.
       4
         In light of that mandatory language, the government’s repeated insistence that
the decision to hold an evidentiary hearing is committed to the discretion of the District
Court is insupportable.

                                               4
determines that there is no genuine issue of material fact regarding the defendant’s

nationality. The Court made no such determination here.

       We will accordingly vacate and remand, so that the District Court can decide if

Owusu’s claim of citizenship presents a genuine issue of material fact. If it does, the

Court must hold an evidentiary hearing. If it does not, the Court must decide the issue on

the administrative record. 5 In either event, the Court should explain why the fact issue

that Owusu raises is or is not a genuine issue of material fact.

III.   CONCLUSION

       For the foregoing reasons, we will vacate and remand.




       5
        On remand, the Court is also free to consider whether Owusu is required to
administratively exhaust his claims under 8 U.S.C. § 1252(b)(7).
                                              5