NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-2425 _____________ UNITED STATES OF AMERICA v. PATRICK OWUSU, Appellant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mother became a naturalized citizen in 1996 and so he is entitled to derivative citizenship. 8 U.S.C. § 1432(a) (1999) (repealed and replaced by 8 U.S.C. § 1431(a)).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[.]” ...
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