Hugh Francis O’neill; Elizabeth Nettie Bean v. ELLIOTT COOK, Field Office Director of the United States Citizenship

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1406
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HUGH FRANCIS O’NEILL;
ELIZABETH NETTIE BEAN,
Appellants
v.
ELLIOTT COOK, Field Office Director of the United States Citizenship and
Immigration Services, London, United Kingdom;
PERRY RHEW, Chief, Administrative Appeals Office of the
United States Citizenship and Immigration Services:
ALEJANDRO MAYORKAS, Director of the United States Citizenship
and Immigration Services;
SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY;
ATTORNEY GENERAL OF THE UNITED STATES;
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
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Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1-10-cv-00984)
District Judge: Honorable Sue L. Robinson
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Submitted Under Third Circuit LAR 34.1(a)
November 1, 2012
Before: SLOVITER, AMBRO, and BARRY, Circuit Judges
(Opinion filed: November 13, 2012 )

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OPINION
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AMBRO,
Hugh O’Neill and his wife Elizabeth Bean filed this lawsuit following denial by
the United States Citizenship and Immigration Services (USCIS) of their applications
seeking O’Neill’s reentry into the United States. The District Court dismissed the suit for
failure to state a claim and lack of subject matter jurisdiction. O’Neill and Bean appeal
that decision. Their appeal, however, is untimely; therefore, we do not have appellate
jurisdiction and must dismiss the appeal.
Circuit Judge
Because we write for the parties, we recite only briefly the facts. Hugh O’Neill is
a citizen of Northern Ireland. He first entered the United States on a 90-day visa in 1993
and over-stayed that visa for almost ten years. Following an arrest in January of 2002,
O’Neill was deported. In February of 2002, he reentered the United States using his
brother’s passport to gain admission through customs at a New York airport. O’Neill
was removed in December of 2003 and again reentered the United States in January of
2004, this time using his own passport under a visa waiver program. In March of 2006,
he was removed a third time.
Because he had been deported and was inadmissible under several provisions of
the Immigration and Nationality Act (INA), O’Neill1
1 For ease of writing, we refer to Appellants jointly and severally as O’Neill.
filed two forms with the London
Field office of the USCIS in his effort to reenter the United States lawfully: (1) an

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Application for Permission to Reapply for Admission Into the United States After
Deportation, using an I-212 Form, and (2) an Application for Waiver of Grounds of
Inadmissibility, using an I-601 Form.
USCIS denied both applications on the ground that O’Neill was inadmissible
pursuant to 8 U.S.C. § 1182(a)(9)(C), and thus subject to a ten-year bar from the date of
his last departure from the United States before being eligible to seek admission again.
O’Neill appealed this determination to the Administrative Appeals Office (AAO). The
AAO dismissed the appeal, but mixed up the earlier decisions on the I-212 Form and the
I-601 Form.
O’Neill filed suit in federal court challenging the eligibility determination. The
District Court held that it lacked subject matter jurisdiction to review the agency’s
discretionary decision denying the I-601 Form. As for O’Neill’s I-212 Form, the Court
focused on his challenge to the errors in the AAO decision, and concluded that those
errors did not affect O’Neill’s inadmissibility. It therefore concluded that no relief was
available.
O’Neill appeals this decision. He argues that he is not subject to the ten-year bar
of § 1182(a)(9)(C) and that the District Court erred by affirming the AAO’s decision on a
ground not relied on by the agency.
We must begin with an inquiry of our jurisdiction, as “every federal appellate
court has a special obligation to satisfy itself . . . of its own jurisdiction . . . even though
the parties are prepared to concede it.” Arizonans for Official English v. Arizona, 520
U.S. 43, 73 (1997) (internal quotations omitted). If we do not have jurisdiction, our only

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function must be announcing that fact and dismissing the appeal. Elliot v. Archdiocese of
N.Y., 682 F.3d 213, 219 (3d Cir. 2012).
Federal Rule of Appellate Procedure 4(a)(1)(B) requires a notice of appeal to be
filed “within 60 days after entry of the judgment or order appealed from if one of the
parties is . . . a United States agency.” Fed. R. App. P. 4(a)(1)(B)(ii). The District Court
entered judgment on December 14, 2011. O’Neill did not file his notice of appeal until
February 14, 2012, 62 days after the District Court’s entry of judgment.2
2 The 60th day was a Sunday, thus making a filing on the 61st day still timely. We note
that the Notice of Appeal included as the first page of the Appendix is dated February 10,
2012, although O’Neill correctly states in his brief that the Notice of Appeal was filed on
February 14, 2012.
Compliance
with filing time limits is “mandatory and jurisdictional.” Bowles v. Russell, 551 U.S.
205, 207, 209 (2007) (no appellate jurisdiction when Appellant filed notice of appeal two
days late). Because O’Neill did not file a timely notice of appeal, we do not have
jurisdiction, and thus we dismiss the appeal.

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