Case: 22-20344 Document: 00516701135 Page: 1 Date Filed: 04/04/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 4, 2023
No. 22-20344 Lyle W. Cayce
____________ Clerk
Doctor Fathi Elltaif Saad Elldakli;
Naglla Kouni Salem Ghadar; Hadil Fathi El Elldakli;
Ranim Fathi El Elldakli; Taha Fathi El Elldakli,
Plaintiffs—Appellants,
versus
Merrick B. Garland;
Department of Homeland Security;
Director Alejandro N. Mayorkas; USCIS; Ur M. Jaddou;
John Allen; Wallace L. Carroll;
United States of America,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-3320
______________________________
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Plaintiffs ask whether 8 U.S.C. § 1252 strips the federal courts of jur-
isdiction to review certain status-adjustment decisions by United States Citi-
zenship and Immigration Services (“USCIS”). But the parties overlook
whether the federal courts have subject-matter jurisdiction to review status-
Case: 22-20344 Document: 00516701135 Page: 2 Date Filed: 04/04/2023
No. 22-20344
adjustment decisions by the USCIS in the first place, despite the jurisdiction-
stripping statute.
We hold that status-adjustment decisions made by the USCIS outside
the context of removal proceedings are not final agency actions reviewable
under the Administrative Procedure Act (“APA”), nor are they final re-
moval actions reviewable per the Immigration and Nationality Act (“INA”).
We thus affirm the district court’s order of dismissal for want of jurisdiction.
I.
Fathi Elltaif Saad Elldakli (“Elldakli”), his wife, and his three children
are Libyan citizens who have resided lawfully in the United States for over a
decade. All family members have been permanent residents for three and a
half years. In 2017, Elldakli filed an I-140 petition, seeking a waiver of the
labor-certification requirement of his visa because he is a “professional hold-
ing an advanced degree whose work is in the national interest of the United
States.” While the petition was pending, Elldakli and his family filed I-485
applications for status adjustment to legal permanent residents (“LPRs”)
under 8 U.S.C. § 1255(a).1
Section 1255 grants the Attorney General the discretion to adjust the
status of certain aliens to LPR status if they have met certain statutorily spe-
cified conditions. One of those conditions is that the alien is a beneficiary of
an approved immigrant visa petition—here, Elldakli’s pending I-140 peti-
tion. See § 1255(i)(1)(B); 8 C.F.R. §§ 245.2(a)(2)(i) and (a)(5)(ii).
But the USCIS granted the family’s I-485 petitions prematurely,
before determining whether to grant Elldakli his I-140 petition. And six
months later, the USCIS denied the I-140 petition. Elldakli appealed the
_____________________
1
These applications are colloquially referred to as green cards.
2
Case: 22-20344 Document: 00516701135 Page: 3 Date Filed: 04/04/2023
No. 22-20344
denial on its merits to the USCIS Administrative Appeals Office (“AAO”).
While that appeal was pending, the USCIS issued a Notice of Intent to
Rescind the family’s green cards, stating that the initial grant had been in
error because the family had yet to become beneficiaries of an approved
immigrant-visa petition. The AAO then affirmed the USCIS’s I-140 denial
and dismissed Elldakli’s appeal.
The Elldakli family filed the instant complaint, asking the district
court to issue a temporary restraining order to keep USCIS from rescinding
the green cards and to reopen the I-485 applications. Asserting subject mat-
ter jurisdiction under the APA, 5 U.S.C. § 701 et seq., the Declaratory Judg-
ment Act, 28 U.S.C. §§ 2201–2202, and 28 U.S.C. § 1331, plaintiffs con-
tended first that it was arbitrary and capricious for the USCIS to deny the
original I-140 petition, and second, that it was arbitrary and capricious for the
USCIS initially to have granted the I-485 applications when plaintiffs had not
met the eligibility requirements (because the I-140 petition had not been
granted).2
The district court found that it had no subject matter jurisdiction to
review the original denial of the I-140 because plaintiffs had not exhausted
their administrative remedies. The court then concluded that 8 U.S.C.
§ 1252(a)(2)(B)(i) precludes federal jurisdiction over discretionary agency
decisions granting relief under 8 U.S.C. § 1255. The court thus dismissed
both of plaintiffs’ claims for lack of subject matter jurisdiction.
Plaintiffs have timely appealed.
_____________________
2
Plaintiffs’ injuries are based on their allegation that the penalties they may expe-
rience if their green cards are rescinded are more severe than had they never been granted
the green cards.
3
Case: 22-20344 Document: 00516701135 Page: 4 Date Filed: 04/04/2023
No. 22-20344
II.
The only issue on appeal is whether the district court erred in dismiss-
ing the claim to review USCIS’s decision to deny Elldakli’s I-140 petition for
want of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). We re-
view such orders de novo. McDonnel Grp., L.L.C. v. Great Lakes Ins. SE,
923 F.3d 427, 430 (5th Cir. 2019). “This court has a continuing obligation to
assure itself of its own jurisdiction, sua sponte if necessary.” Green Valley
Special Util. Dist. v. City of Schertz, 969 F.3d 460, 468 (5th Cir. 2020)
(en banc) (quoting United States v. Pedroza-Rocha, 933 F.3d 490, 493 (5th Cir.
2019) (per curiam)).
III.
Plaintiffs contend the district court erred in holding that “[a]ny judg-
ment regarding the granting of relief under Section 1255, which provides the
statutory authority for I-485 applications, is in the category of discretionary
decisions that no court has jurisdiction to review.” Plaintiffs asserted federal
subject-matter jurisdiction under the APA, the Declaratory Judgment Act,
and federal question jurisdiction. The Declaratory Judgment Act is not an
independent basis for subject matter jurisdiction. In re B-727 Aircraft Serial
No. 21010, 272 F.3d 264, 270 (5th Cir. 2001). And § 1331 alone does not
provide jurisdiction for agency actions unless a statute, such as the APA, has
waived sovereign immunity.3 Jurisdiction therefore hinges on the APA.
The APA allows federal courts to review an agency action that is
“made reviewable by statute” or is a “final agency action for which there is
_____________________
3
See Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 n.13 (5th Cir. 1998)
(citations omitted) (“[T]he APA does not create an independent grant of jurisdiction to
bring suit . . . . [If] the APA creates a cause of action . . . jurisdiction exists under the general
federal question statute, not the APA . . . . The APA then serves as the waiver of sovereign
immunity that allows a private party to sue the government”).
4
Case: 22-20344 Document: 00516701135 Page: 5 Date Filed: 04/04/2023
No. 22-20344
no other adequate remedy in court.” 5 U.S.C. § 704. Agency action is not
subject to judicial review where the relevant statute precludes such review or
the action is committed to agency discretion by law. 5 U.S.C. § 701(a)(1)–
(2). The relevant statute here is the INA, which provides that “a court may
review a final order of removal only if [among other requirements] the alien
has exhausted all administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d). These two statutes provide a similar restriction: The
federal courts have federal jurisdiction only over final agency actions for
which there is no other remedy. The INA has additional jurisdictional limi-
tations derived from § 1252, but those further restrictions require a final
agency action. And here, there is no final agency action at all.
“As a matter of jurisdiction, courts may not review the administrative
decisions of the INA unless the appellant has first exhausted ‘all adminis-
trative remedies.’”4 Status-adjustment decisions by the USCIS are not final
removal actions under the INA because aliens may renew status-adjustment
requests upon commencement of removal proceedings. 5
No published decision has yet announced whether a USCIS status-
adjustment decision is a final agency action such that the APA might grant
jurisdiction despite the INA’s limitation of jurisdiction to removal actions.
Still, a wealth of unpublished and district court decisions have held it does
not because there is another avenue for appeal.6 See 8 C.F.R. § 245.2-
_____________________
4
Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000) (citing 8 U.S.C. § 1252(d)
(1999)); see also Velasquez v. Nielsen, 754 F. App’x 256, 260–61 (5th Cir. 2018).
5
Cardoso, 216 F.3d at 518; Petrenko-Gunter v. Upchurch, No. 05-11249, 2006 WL
2852359, at *1 (5th Cir. Oct. 2, 2006); Maringo v. Mukasey, 281 F. App’x 365, 367–68 (5th
Cir. 2008); see also 8 C.F.R. § 245.2(a)(5)(ii)(stating that “[n]o appeal lies from the denial
of an application by the director, but the applicant, if not an arriving alien, retains the right
to renew his or her application in [removal] proceedings”).
6
See, e.g., Robledo v. Mayorkas, 2022 WL 2824647, at *3 (M.D. La. July 19, 2022);
5
Case: 22-20344 Document: 00516701135 Page: 6 Date Filed: 04/04/2023
No. 22-20344
(a)(5)(ii).
We now adopt that reasoning: This court does not have subject matter
jurisdiction to review a status-adjustment decision by the USCIS under
either the APA or the INA because the alien retains the right to de novo review
of that decision in his final removal proceedings. 7 Thus, he “has not yet
exhausted [his] administrative remedies and this Court may not exercise
jurisdiction.” Cardoso, 216 F.3d at 518.
Finding no jurisdiction over plaintiffs’ claims, we go no further. The
order of dismissal is AFFIRMED.
_____________________
Nama v. USCIS, 2022 WL 1189889, at *3–*5 (N.D. Tex. Apr. 21, 2022); Garcia v. USCIS,
2022 WL 3349151, at *6 (N.D. Tex. Aug. 12, 2022); Puente v. Renaud, 2021 WL 5326461,
at *2–*6 (N.D. Tex. Nov. 15, 2021); Cavena v. Renaud, 2021 WL 2716432, at *3 (N.D. Tex.
June 30, 2021); Hernandez v. Garland, 2021 WL 3810963, at *3 (S.D. Tex. May 19, 2021);
Mendoza v. Wolf, 2020 WL 7123166, at *3–*4 (S.D. Tex. Dec. 4, 2020); Avalos-Lopez v.
Wolf, 2020 WL 13556671, at *4–*5 (W.D. Tex. May 14, 2020); Koesoemadinata v. McAlee-
nan, 2019 WL 4418223, at *3–*4 (S.D. Tex. Sept. 16, 2019); Rico v. Medina, 2017 WL
7371193, *1–*2 (S.D. Tex. Feb. 1, 2017); Judhani v. Holder, 2011 WL 1252661, at *5 (N.D.
Tex. Mar. 9, 2011); Hinojosa v. U.S. Dep’t of Just., 2010 WL 5419046, at *4 (S.D. Tex.
Dec. 23, 2010); Chavira v. Upchurch, 2006 WL 2471545, at *3 (E.D. Tex. Aug. 29, 2007);
del Castillo v. Dep’t of Homeland Sec., 2005 WL 2121550, at *3 (S.D. Tex. Aug. 30, 2005);
Akpojiyovwi v. Acosta, 2005 WL 1668133, at *2–*3 (S.D. Tex. July 15, 2005).
7
This decision does not apply to situations in which the alien does not retain that
right. For example, if the alien has been granted TPS, a denied-status adjustment decision
might result in immediate removability, given that the alien must reopen his removal pro-
ceedings. Such a situation is distinct from this case, where plaintiffs retain the right to a
full removal proceeding and the chance for de novo review of the status-adjustment decision.
See, e.g., Melendez v. McAleenan, 928 F.3d 425, 429 (5th Cir. 2019).
6
Case: 22-20344 Document: 00516701135 Page: 7 Date Filed: 04/04/2023
No. 22-20344
Patrick E. Higginbotham, Circuit Judge, concurring in the
judgment:
I concur in the judgment because I read this court’s precedent in
Cardoso v. Reno1 to control the issue. The Cardoso court determined that
because an applicant for adjustment of status can “renew her request upon
the commencement of removal proceedings,” this court may not exercise
jurisdiction to review the decision before those proceedings conclude.2 But
that part of Cardoso was a misstep, as removal proceedings do not properly
function as an administrative appeal given that most noncitizens who enter
this country on nonimmigrant visas follow the law and do not prompt the
government to charge them with removability. What’s more, the majority
opinion cements disagreement among our sister circuits regarding this
exhaustion requirement. Because the record does not indicate that removal
proceedings are pending in Elldakli’s case, USCIS’s denial of his adjustment
of status is final action, and nothing in the APA should bar this court’s
review. This court should instead grapple with the parties’ arguments on the
scope of the INA’s jurisdiction stripping provisions, which remains a
contested question of law.
I.
Elldakli entered the country on an F-1 student visa, with his family
joining on F-2 dependent visas. Elldakli then applied for USCIS to adjust his
status to an EB-2 immigrant visa based on specialized knowledge related to
the oil industry. The government all but admits that USCIS committed error
in this process by granting Elldakli’s I-485 petition while his I-140 petition
was still pending. Elldakli appeals hoping to reverse the agency’s mistake, but
_____________________
1
216 F.3d 512, 518 (2000).
2
Id. at 518.
7
Case: 22-20344 Document: 00516701135 Page: 8 Date Filed: 04/04/2023
No. 22-20344
the panel determines that it lacks jurisdiction because Elldakli can raise the
issue in removal proceedings.3 That is puzzling because neither Elldakli nor
the government anticipate removal proceedings in this case.
The majority’s reasoning is based on a misunderstanding of this
country’s immigration system. Only a small proportion of the tens of millions
of individuals who enter this country every year on nonimmigrant visas are
removed.4 Many nonimmigrants can apply for adjustment of status, and it
stands to reason that most of them depart the country lawfully if the
government denies their applications. To receive additional review under
this court’s rationale, nonimmigrants like Elldakli would need to become
removable by, for example, overstaying their visas.5 The government must
then decide to charge them as removable,6 and the noncitizens would need to
forego voluntary departure and face a potential ten-year bar on re-admission
to the United States.7 Furthermore, the government has complete control
_____________________
3
It is not immediately clear that Elldakli’s complaint is even cognizable in removal
proceedings. In almost all cases, noncitizens charged with removability challenge denial of
status adjustment. Here, Elldakli challenges erroneous approval of his status adjustment,
where USCIS corrected the mistake by rescinding his adjustment of status.
4
Using pre-pandemic numbers, the United States admitted approximately 60
million nonimmigrants (excluding Visa Waiver Program participants) in 2019. Department
of Homeland Security, U.S. Nonimmigrant Admissions: 2021 at 3, at
https://www.dhs.gov/sites/default/files/2022-
07/2022_0722_plcy_nonimmigrant_fy2021.pdf. In that year, the government removed
360,000 noncitizens. Department of Homeland Security, 2019 Yearbook of Immigration
Statistics Table 39, at https://www.dhs.gov/immigration-
statistics/yearbook/2019/table39.
5
See 8 U.S.C. § 1227(a)(1) (rendering noncitizens removable for violating status).
6
See id. § 1229a(a)(2) (charges in removability proceedings). Removal proceedings
are not inevitable, as the DACA program demonstrates.
7
See id. § 1229c(a)(1) (noting that voluntary departure is only available before
completion of removal proceedings), id. § 1182(a)(9) (aliens previously removed).
8
Case: 22-20344 Document: 00516701135 Page: 9 Date Filed: 04/04/2023
No. 22-20344
over the decision to institute removal proceedings, and Elldakli and others
have no mechanism to force the issue.8 It makes little sense to say that a
noncitizen has failed to exhaust his remedies when he declines to break the
law in hopes of additional review.
The APA demands that plaintiffs exhaust their remedies before the
agency prior to seeking review in federal court.9 But surely the above-
described process is not what Congress meant when it required would-be
plaintiffs to seek the government’s final word on the matter. The Supreme
Court has noted, “[t]he doctrine provides ‘that no one is entitled to judicial
relief for a supposed or threatened injury until the prescribed administrative
remedy has been exhausted.’”10 Removal proceedings do not represent this
“prescribed” administrative appeal process. It is difficult to see how
Congress could have intended any administrative appeal to operate this way
given that the process requires noncitizens to break this country’s
immigration laws in the normal course of pursuing review. Treating removal
charges as an appeal also does little to further the other stated goals of
exhaustion, such as efficiency and agency error correction.11 And USCIS and
the Executive Office of Immigration Review sit in separate departments of
_____________________
8
See Alvidres-Reyes v. Reno, 180 F.3d 199, 201 (5th Cir. 1999) (discussing “the
Attorney General’s long-established discretion to decide whether and when to prosecute
or adjudicate removal proceedings”).
9
See 5 U.S.C. § 704. The majority states that 8 U.S.C. § 1252(d) is relevant to the
exhaustion requirements here, but that provision applies only to “a final order of removal,”
not a USCIS denial of adjustment of status unrelated to removal proceedings. This court
often interprets the provision to bar consideration of issues not presented to the BIA. See
Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018).
10
Woodford v. Ngo, 548 U.S. 81, 88–89 (2006) (quoting McKart v. United States,
395 U.S. 185, 193 (1969)) (emphasis added).
11
Id. at 89.
9
Case: 22-20344 Document: 00516701135 Page: 10 Date Filed: 04/04/2023
No. 22-20344
the federal government, meaning that the relevant agency has already said all
it intends to say on the matter.12
USCIS’s decision is also final action under the APA because it is not
“inoperative” between the time of the denial and initiation of removal
proceedings.13 The noncitizen incurs “legal consequences” immediately
upon denial of an immigrant visa, and failure to abide by the dictates of a
nonimmigrant visa contravenes federal law and carries legal risks.14 USCIS
could escape this result by rendering its determination “inoperative”
pending “appeal to superior agency authority.”15 USCIS naturally does not
make its decisions inoperative because removal proceedings do not function
as an administrative appeal.
For these reasons and others, at least four of our sister circuits have
determined that USCIS’s decision is preliminary—meaning not final—only
when removal proceedings are pending, as in that case opportunity for review
is imminent.16 To my knowledge, only one other circuit agrees with this court
_____________________
12
USCIS is part of the Department of Homeland Security, while EOIR is within
the Department of Justice.
13
5 U.S.C. § 704; Darby v. Cisneros, 509 U.S. 137, 152 (1993)
14
U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590, 597 (2016) (citation
omitted). Legal permanent residents may also, for example, have greater access to certain
federal benefits programs. See 8 U.S.C. § 1612(a)(2)(B).
15
5 U.S.C. § 704.
16
See Hosseini v. Johnson, 826 F.3d 354, 362 (6th Cir. 2016) (“[W]e hold that where
no removal proceedings are pending, the agency’s denial of an application for status
adjustment . . . marks the consummation of the agency’s decision-making process.”);
Cabaccang v. U.S. Citizenship & Immigr. Servs., 627 F.3d 1313, 1317 (9th Cir. 2010)
(“Accordingly, we join our sister circuits in holding that district courts lack jurisdiction to
review denials of status adjustment if removal proceedings are simultaneously pending.”);
Pinho v. Gonzales, 432 F.3d 193, 202 (3d Cir. 2005) (“We hold that an AAO decision is final
where there are no deportation proceedings pending in which the decision might be
reopened or challenged.”); Howell v. I.N.S., 72 F.3d 288, 293 (2d Cir. 1995) (“In the
10
Case: 22-20344 Document: 00516701135 Page: 11 Date Filed: 04/04/2023
No. 22-20344
in barring APA review without imminent removal proceedings.17
The parties in this case debate whether a jurisdiction stripping
provision, 8 U.S.C. § 1252(a)(2)(B)(i), divests federal courts of the power to
review adjustment of status applications under 8 U.S.C. § 1255. The
Supreme Court’s recent opinion in Patel v. Garland construes the jurisdiction
stripping provision broadly,18 although our court’s precedent does not read
the provision to reach APA suits challenging USCIS adjustment of status
decisions.19 It is important to note that the majority’s position blocking
review of agency activity may not be coterminous with the jurisdiction
stripping provision. The provision does not directly discuss, for example,
adjustment of status decisions for refugees,20 special agricultural workers,21
and certain others on visitor and diplomatic visas.22 Additional unexpected
consequences will likely flow from the conclusion that immigration decisions
are intermediate even when removal proceedings remain just a mere
possibility.
The government all but admits error in its treatment of Elldalki’s
petitions. This court’s precedent, which may still bind, indicates that the
INA’s jurisdiction stripping provisions do not bar review of USCIS
_____________________
present case, we think that the district court lacked jurisdiction to review the district
director’s denial of Howell’s application for adjustment of status once deportation
proceedings commenced . . . .”); see also Randall v. Meese, 854 F.2d 472, 481 (D.C. Cir.
1988) (determining that claims are not ripe until the conclusion of ongoing removal
proceedings).
17
See McBrearty v. Perryman, 212 F.3d 985 (7th Cir. 2000).
18
See Patel v. Garland, 142 S. Ct. 1614, 1622, 1627 (2022).
19
Duarte v. Mayorkas, 27 F.4th 1044, 1057 (5th Cir. 2022).
20
See 8 U.S.C. § 1159.
21
See id. § 1160.
22
See id. § 1255b.
11
Case: 22-20344 Document: 00516701135 Page: 12 Date Filed: 04/04/2023
No. 22-20344
adjustment of status decisions. Yet the majority opinion twists administrative
law’s exhaustion requirement to prevent the court from granting relief, and
in doing so it lays the groundwork for future errors.
12