[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-14525                ELEVENTH CIRCUIT
                         Non-Argument Calendar               APRIL 18, 2011
                       ________________________               JOHN LEY
                                                               CLERK
                   D.C. Docket No. 1:10-cv-21049-JLK

RODRIGO AGUILERA,

                                                           Plaintiff - Appellant,

                                  versus

DISTRICT DIRECTOR, USCIS, MIAMI, FLORIDA,
ATTORNEY GENERAL, UNITED STATES,
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
US ATTORNEY’S OFFICE,

                                                      Defendants - Appellees.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (April 18, 2011)

Before CARNES, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
      Rodrigo Aguilera, an alien in removal proceedings, challenges the district

court’s dismissal of his complaint, filed pursuant to the Mandamus Act, 28 U.S.C. §

1361, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702 and 706, and the

Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, in which he apparently

requested that the district court declare that he had been previously paroled into the

United States and order the U.S. Citizenship and Immigration Service (“USCIS”) to

act on his application for adjustment of status. On appeal, Aguilera argues that: (1)

the district court erred by dismissing his complaint for lack of subject matter

jurisdiction, because he alleged a due process violation based on the USCIS’s failure

to inform him of his right to appeal from its decision denying his I-485 application for

adjustment of status and I-601 application for a waiver of inadmissibility, filed under

the Immigration and Nationality Act (“INA”); and (2) he was eligible for a waiver and

to adjust his status, and that the district court erred by not requiring the USCIS to act

favorably on his applications. After thorough review, we affirm.

      We review de novo a district court’s order granting a motion to dismiss for lack

of subject matter jurisdiction and its interpretation and application of statutory

provisions. See Chaney v. Tenn. Valley Auth., 

, 1326 (11th Cir. 2001);

see also Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 

, 1142 (11th

Cir. 2009). Issues not raised below are deemed waived, see Four Seasons Hotels &


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Resorts, B.V. v. Consorcio Barr, S.A., 

, 1168-69 (11th Cir. 2004), and

passing references to an issue are insufficient to raise a claim, see Sepulveda v. U.S.

Att’y Gen., 

, 1228-29 n.2 (11th Cir. 2005).

      The INA’s judicial review statute eliminates review by any court of

discretionary decisions or actions of the Attorney General or Secretary of Homeland

Security. 8 U.S.C. § 1252(a)(2)(B)(ii). With regard to the review of denials of

discretionary relief, the statute provides as follows:

      Notwithstanding any other provision of law . . . and except as provided
      in subparagraph (D), and regardless of whether the judgment, decision,
      or action is made in removal proceedings, no court shall have jurisdiction
      to review . . . any judgment regarding the granting of relief under section
      1182(h), 1182(i), 1229b, 1229c, or 1255 [adjustment of status] of this
      title.

8 U.S.C. § 1252(a)(2)(B)(i). Although the INA precludes judicial review of the

discretionary denial of an application for adjustment of status, it does not preclude

review by an appellate court of non-discretionary legal decisions that pertain to

constitutional issues or statutory eligibility for discretionary relief. 8 U.S.C. §

1252(a)(2)(D); see also Chacon-Botero v. U.S. Att’y Gen., 

, 957 (11th

Cir. 2005). However, an alien may not “cloak[] an abuse of discretion argument in

constitutional garb” by couching such a claim in constitutional language. Arias v.

U.S. Att’y Gen., 

, 1284 (11th Cir. 2007).



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      Moreover, the regulation regarding the USCIS’s denial of an application for

adjustment of status provides that no appeal lies from the denial of an application by

USCIS. 8 C.F.R. § 1245.2(a)(5)(ii). However, an alien may “renew his or her

application in [removal] proceedings.” 

alien is placed in removal

proceedings, “the immigration judge hearing the proceeding has exclusive jurisdiction

to adjudicate any application for adjustment of status the alien may file.” 8 C.F.R. §

1245.2(a)(1)(i).

      The APA establishes that judicial review is not available until “an aggrieved

party has exhausted all administrative remedies expressly prescribed by statute or

agency rule.” Ibarra v. Swacina, 

, 1269 (11th Cir. 2010) (quotation

omitted). Once administrative remedies have been exhausted, the agency’s action is

final and, therefore, subject to judicial review. 

if an action is final,

the APA specifically provides that it does not apply where “statutes preclude judicial

review.” 5 U.S.C. § 701(a)(1); Mejia 

.

      Under 28 U.S.C. § 1361, otherwise known as the Mandamus Act, the district

court has original jurisdiction over a mandamus action “to compel an officer or

employee of the United States or any agency thereof to perform a duty owed to the

plaintiff.” 28 U.S.C. § 1361; see also Cash v. Barnhart, 

, 1257 (11th

Cir. 2003). The test for jurisdiction is whether mandamus would be an appropriate


                                            4
means of relief, and such relief is only appropriate when: (1) the plaintiff has a clear

right to the relief requested; (2) the defendant has a clear duty to act; and (3) no other

adequate remedy is available. 

. In other words, “a writ of

mandamus ‘is intended to provide a remedy for a plaintiff only if he has exhausted all

other avenues of relief and only if the defendant owes him a clear nondiscretionary

duty.’” 

v. Ringer, 

, 616 (1984)).

           The Declaratory Judgment Act does not establish an independent basis for

federal jurisdiction. See Seibert v. Baptist, 

, 428 (5th Cir. 1979).1 The

Declaratory Judgment Act is “an enabling Act, which confers a discretion on the

courts rather than an absolute right upon the litigant.” Wilton v. Seven Falls Co., 

, 287 (1995) (quotation omitted). It only gives the federal courts competence

to make a declaration of rights; it does not impose a duty to do so. Brillhart v. Excess

Ins. Co. of America, 

, 494 (1942).

       Here, the district court did not err in dismissing Aguilera’s complaint for lack

of subject matter jurisdiction, because the INA expressly provides that the denial of

an application for adjustment of status is not reviewable by any court. 8 U.S.C. §

1252(a)(2)(B)(i). While the INA allows for judicial review of non-discretionary legal



       1
         In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981.

                                                5
decisions that pertain to constitutional issues or statutory eligibility for discretionary

relief, 8 U.S.C. § 1252(a)(2)(D); 

, Aguilera’s passing

reference to a due process claim in his counseled complaint -- even assuming he did

not waive the claim by failing to provide any argument for it -- still did not create

jurisdiction in the district court. Indeed, a claim that his due process rights were

violated by USCIS’s failure to notify him of his “right” to appeal is meritless, because

he had no right to appeal. See 8 C.F.R. § 1245.2(a)(5)(ii). Additionally, to the extent

he challenges the denial of his I-485 application and application for waiver of

inadmissability, he is only couching the USCIS’s use of discretion as a constitutional

claim, which would not create jurisdiction. See 

. Therefore,

the jurisdiction-stripping provision under § 1252(a)(2)(B) bars jurisdiction under the

APA and the Mandamus Act.

      Moreover, Aguilera could not invoke either the APA or the Mandamus Act,

because the USCIS does not have a clear duty to rule favorably on his I-485

application, and he still has remedies available to him, as he is in removal proceedings

where he can pursue this and any other application for relief. See 

; 

.           Finally, because Aguilera is in removal

proceedings, the USCIS no longer has jurisdiction to consider his claims for relief,

and therefore, the district court could not grant relief even if it had jurisdiction over


                                            6
the complaint. 8 C.F.R. § 1245.2(a)(1); see also Nyaga v. Ashcroft, 

, 916

(11th Cir. 2003) (holding that where an agency is unable to act on requested relief, the

district court should dismiss a mandamus action as moot). Lastly, the Declaratory

Judgment Act did not provide an independent basis for jurisdiction. See 

. Accordingly, we affirm.

      AFFIRMED.




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