Case: 20-20274 Document: 00515698353 Page: 1 Date Filed: 01/07/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-20274 January 7, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Kevin Abimael Ochoa-Castillo,
Plaintiff—Appellant,
versus
Wallace L. Carroll, Acting Director, Houston Field Office,
U.S. Citizenship and Immigration Services; Kenneth T.
Cuccinelli, Acting Director, U.S. Citizenship and
Immigration Services; Chad F. Wolf, Acting Secretary, U.S.
Department of Homeland Security; Jeffrey A. Rosen,
Acting U.S. Attorney General,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-878
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-20274
The district court dismissed Kevin Abimael Ochoa-Castillo’s lawsuit
challenging the United States Customs and Immigration Service’s (USCIS)
denial of his petition for Special Immigrant Juvenile (SIJ) status. 1 Ochoa-
Castillo appeals, contending that he plausibly alleged violations of the
Administrative Procedure Act (APA). We AFFIRM.
BACKGROUND
Ochoa-Castillo is a native and citizen of Honduras. After entering the
United States without inspection on July 31, 2015, he and his mother were
detained and placed in removal proceedings. On February 1, 2016, in an
apparent effort to obtain SIJ immigration status, Ochoa-Castillo petitioned
the 313th District Court, in Harris County, Texas, for a declaratory
judgment. On March 23, 2016, the court granted the petition, declaring that:
[The Petitioner] has been abused, abandoned and/or neglected
by his father, . . . [;] is a dependent of the court in that there is
no parent able to care for him in his home country of
Honduras[;] reunification with [the Petitioner’s] father . . . is
not viable due to abuse, abandonment or neglect or a similar
basis found under Texas law[; and] that it is not in the
[Petitioner]’s best interest to be returned to his previous
country of nationality, and country of last habitual residence,
Honduras.
1
“SIJ status provides a path for certain children to become lawful residents of the
United States.” Budhathoki v. Nielsen, 898 F.3d 504, 508 (5th Cir. 2018). Under 8 U.S.C.
§ 1101(a)(27)(J), SIJ status is available to “children whom a juvenile court has placed under
the custody of a person or entity appointed by a state or juvenile court.” Id. (citation
omitted). To seek SIJ status, “[o]nce the applicant has the necessary predicate order, he
must submit his application to the [USCIS] agency, attaching the state court order.” Id.
So, “a state court must make initial determinations, and the USCIS then considers if they
match the requirements for SIJ status.” Id. at 509.
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After receiving the state-court declaration, Ochoa-Castillo petitioned
the USCIS for SIJ status. On March 19, 2018, the USCIS denied Ochoa-
Castillo’s petition for SIJ status, and Ochoa-Castillo appealed the denial to
the USCIS’s Administrative Appeals Office (AAO). On November 28,
2018, the AAO dismissed Ochoa-Castillo’s appeal, concluding Ochoa-
Castillo was not eligible for SIJ status because the state-court declaration
attached to his petition did not qualify as a dependency order under 8 U.S.C.
§ 1101(a)(27)(J) because it did not address Ochoa-Castillo’s custody or
supervision.
Four months later, Ochoa-Castillo filed this suit in federal district
court, seeking to set aside the denial of his SIJ petition. In his second-
amended complaint, Ochoa-Castillo contended that the USCIS violated the
APA. According to Ochoa-Castillo, the USCIS’s 2016 Policy Manual
constituted a substantive rule triggering the APA’s notice-and-comment
requirements, which the USCIS did not follow. Ochoa-Castillo further
contended that the defendants denied his petition for SIJ classification by
using new standards espoused in the Policy Manual to his detriment.
Alternatively, Ochoa-Castillo asserted that the USCIS arbitrarily and
capriciously denied his SIJ petition.
The district court disagreed and dismissed Ochoa-Castillo’s
complaint for failure to state a claim. Ochoa-Castillo appeals, contending
that the district court erred in granting defendants’ Rule 12(b)(6) motion.
DISCUSSION
We review a Rule 12(b)(6) dismissal de novo, accepting all well-pled
facts as true and construing them in the plaintiff’s favor. Jackson v. City of
Hearne, 959 F.3d 194, 200 (5th Cir. 2020). “Dismissal is appropriate when
the plaintiff has not alleged ‘enough facts to state a claim to relief that is
plausible on its face’ and has failed to ‘raise a right to relief above the
3
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speculative level.’” True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). Here, Ochoa-
Castillo contends that the district court erred by granting defendants’ Rule
12(b)(6) motion to dismiss because he asserted plausible claims. We
disagree.
In his second-amended complaint, Ochoa-Castillo alleged that USCIS
violated the APA by using a Policy Manual that did not undergo the APA’s
notice-and-comment process and that the defendants denied his petition for
SIJ classification by using new standards espoused in the Policy Manual to
his detriment. 2 But as noted by the district court, even taking the notice-and-
comment assertion as true, Ochoa-Castillo still failed to provide any
explanation of how the Policy Manual affected the adjudication of his SIJ
application. Although the Policy Manual was referenced in USCIS’s denial,
Ochoa-Castillo’s SIJ application was denied because his state court order did
not qualify as a dependency order under 8 U.S.C. § 1101(a)(27)(J). See
Budhathoki, 898 F.3d at 513. Accordingly, we agree with the district court
that Ochoa-Castillo has failed to state a plausible claim for relief under the
APA.
Ochoa-Castillo also contended that the USCIS arbitrarily and
capriciously denied his petition because the USCIS has previously granted
SIJ status to other petitioners using state-court orders with the same language
as his order (i.e., state-court orders that likewise did not address custody).
The district court found that Ochoa-Castillo failed to state a plausible claim
in this regard because, even taking his assertions as true, the USCIS “is not
required to approve applications or petitions where eligibility has not been
2
The APA requires agencies to subject their substantive rules to notice and
comment. See 5 U.S.C. § 553.
4
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demonstrated, merely because of prior approvals which may have been
erroneous.” Matter of Church Scientology Int’l, 19 I. & N. Dec. 593, 597
(1988). We agree. As we clarified in Budhathoki, “before a state court ruling
constitutes a dependency order, it must in some way address custody or at
least supervision.” 898 F.3d at 513; see also 8 U.S.C. § 1101(a)(27)(J)(i).
Ochoa-Castillo’s state-court order does not meet this requirement.
The district court’s judgment is AFFIRMED.
5