BLD-153                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 19-3371
                                      ___________

                                   OSCAR BAPTISTE,
                                              Appellant

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA
                   ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 2:18-cv-16826)
                       District Judge: Honorable Kevin McNulty
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 26, 2020
           Before: AMBRO, GREENAWAY, Jr., and BIBAS, Circuit Judges

                             (Opinion filed: March 31, 2020)
                                     ___________

                                       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, a citizen of Panama, appeals pro se from an order of the United

States District Court for the District of New Jersey granting the Government’s motion to

dismiss an action which sought to challenge the denial of his applications for

naturalization. For the following reasons, we will grant the Government’s motion to

summarily affirm the District Court’s order.

       Baptiste entered the United States on a B-2 visitor visa in January 2001 and

adjusted his status to lawful permanent resident in October 2003. In July 2007, Baptiste

filed a naturalization application. Following a hearing, the United States Citizenship and

Immigration Services (USCIS) denied that application on July 31, 2008, on the ground

that Baptiste lacked good moral character. That conclusion was based on the

consequences of Baptiste’s arrest on domestic violence charges. In particular, the USCIS

cited the fact that the “record reveals that there is a protective order issued against you

and the court has placed you in the Family Violence Program.”

       Several years later, Baptiste was arrested, convicted, and sentenced on federal

drug charges. See 21 U.S.C. §§ 952 and 960(b)(2)(B)(ii) (cocaine importation). After

completing his sentence, Baptiste was taken into immigration custody and 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). An Immigration Judge found that Baptiste was removable and

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the Board of Immigration Appeals dismissed his appeal, holding that it lacked

jurisdiction over his challenge to the denial of his first naturalization application.

Baptiste filed a petition for review, which we denied. Baptiste v. Att’y Gen., 

, 97 (3d Cir. May 23, 2019) (not precedential) (holding, inter alia, that “BIA properly

held that it lacked jurisdiction to consider Baptiste’s challenge to the USCIS’s 2008

denial of his naturalization application”).

       Meanwhile, a few months before his arrest, Baptiste had filed a second

naturalization application. Because no substantive action had been taken on that

application as of November 2018, Baptiste filed a mandamus petition in United States

District Court for the District of New Jersey, seeking to compel the USCIS to adjudicate

the application or to have the District Court declare that he is a United States citizen.

While that petition was pending, the USCIS denied Baptiste’s second naturalization

application in an order dated February 14, 2019. The Government filed a motion to

dismiss. The District Court granted that motion, explaining that this Court had denied

Baptiste’s petition for review “in terms that dispose of many or most of the issues” raised

in his mandamus petition. Baptiste appealed. After Baptiste filed his pro se brief, the

Government moved for summary affirmance. Baptiste opposes the motion summary

affirmance.

       We have jurisdiction pursuant to 28 U.S.C. § 1291, and we exercise plenary

review over the order granting the Government’s motion to dismiss. See Free Speech

                                               3
Coal., Inc. v. Att’y Gen., 

, 529-30 (3d Cir. 2012). We may summarily

affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       There is no dispute that Baptiste is not presently entitled to be naturalized. To be

eligible, an individual must show that he has maintained good moral character until being

admitted to citizenship. See 8 U.S.C. § 1427(a)(3); Boatswain v. Gonzales, 

, 416 (2d Cir. 2005). Baptiste’s aggravated felony conviction prevents him from

making that showing. See 8 U.S.C. § 1101(f)(8); Al-Sharif v. U.S. Citizenship &

Immigration Servs., 

, 214 (3d Cir. 2013) (en banc). He asserted, therefore,

that his naturalization applications should be considered nunc pro tunc as if he were not

an aggravated felon. In making that argument, Baptiste claimed that the USCIS

“unreasonably and arbitrarily delayed” the processing of his naturalization applications.

       Baptiste’s argument in foreclosed by our decision in Duran-Pichardo v. Attorney

General, 

, 288 (3d Cir. 2012). Like Baptiste, the petitioner in Duran-

Pichardo had commenced naturalization proceedings, but then committed an aggravated

felony before the application was adjudicated. The petitioner, who was subject to a final

order of removal, argued that he was entitled to nunc pro tunc review of his naturalization

application as if he were still eligible for citizenship. We rejected that argument, noting

that a court may not grant equitable relief in contravention of the expressed intent of

Congress,

(citing Cheruku v. Att’y Gen., 
662 F.3d 198
, 209 (3d Cir. 2011)),

                                             4
and the Immigration and Nationality Act expressly prohibits the naturalization of any

person against whom a final order of removal has been entered, see
 

(citing 8

U.S.C. § 1429). Therefore, we held that “[e]quitable relief is unavailable if it would

require agency review of an alien’s naturalization application while that alien is the

subject of an outstanding finding of deportability or a pending removal proceeding.”
 Id.

at 288. 
Because Baptiste is subject to a final order of removal, he is not entitled to nunc

pro tunc review of his naturalization application, for the reasons that we expressed in

Duran-Pichardo.

       Baptiste also argues that “the denial [of his first naturalization application] was

based on an incorrect assessment of the facts underlying his state court [domestic

violence] case that are not supported by the record.” Mandamus Pet., 11; see also

Appellant’s Br., 19. For example, he characterizes the protective order entered against

him as “partial” because it was issued by the police upon his release, rather than by a

court. See Appellant’s Opp’n to Mot. for Summ. Affirmance, 5. He also claims that he

was not “placed” in the “Family Violence Program,” but rather entered voluntarily.

Appellant’s Br., 9. These arguments, however, should have first been made in a timely

appeal to an immigration officer. See 8 U.S.C. § 1447(a); 8 C.F.R. § 336.2(a). Because

Baptiste did not pursue such an appeal, the District Court could not review Baptiste’s

challenge to the denial of his first naturalization application. See 8 U.S.C. § 1421(c)

(authorizing judicial review of the denial of a naturalization application “after a hearing

                                              5
before an immigration officer”); Escaler v. U.S. Citizen and Immigration Servs., 
582 F.3d

288
, 292 (2d Cir. 2009) (holding that § 1421(c) “requires the exhaustion of administrative

remedies prior to seeking” judicial review). Baptiste argues that he should be excused

from the exhaustion requirement because, sometime prior to July 31, 2008, an

“immigration official instructed [him] to ignore any denial letter he may receive from

USCIS.”1 Appellant’s Br., 8 n.13. But, even assuming that we could excuse the statutory

exhaustion requirement, see Booth v. Churner, 
532 U.S. 731
, 741 n.6 (2001), such relief

would not be warranted here because Baptiste did not act diligently in pursuing this

claim. Cf. Harrow v. Prudential Ins. Co. of Am., 
279 F.3d 244
, 250 (3d Cir. 2002)

(stating that plaintiff’s diligence in pursuing administrative relief is a factor in

determining whether to excuse exhaustion under ERISA).

       For the foregoing reasons, we grant the Government’s motion for summary

affirmance and will affirm the District Court’s judgment.




1
 The Government notes, however, that the USCIS’s letter notifying Baptiste of the denial
of his 2007 naturalization application clearly stated that he could request an
administrative review hearing within 30 days and that, if he did not do so, the decision
would be final.
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