Filed: Dec. 15, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 14-12469 Date Filed: 12/15/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-12469 Non-Argument Calendar _ D.C. Docket No. 8:13-cv-00944-SCB-MAP HARRY WILLIAM PELHAM HESLOP, Plaintiff-Appellant, versus ATTORNEY GENERAL OF THE UNITED STATES, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, RUTH DOROCHOFF, District Director, District Tampa, United States Citizenship and Immigration Service,
Summary: Case: 14-12469 Date Filed: 12/15/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-12469 Non-Argument Calendar _ D.C. Docket No. 8:13-cv-00944-SCB-MAP HARRY WILLIAM PELHAM HESLOP, Plaintiff-Appellant, versus ATTORNEY GENERAL OF THE UNITED STATES, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, RUTH DOROCHOFF, District Director, District Tampa, United States Citizenship and Immigration Service, ..
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Case: 14-12469 Date Filed: 12/15/2014 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12469
Non-Argument Calendar
________________________
D.C. Docket No. 8:13-cv-00944-SCB-MAP
HARRY WILLIAM PELHAM HESLOP,
Plaintiff-Appellant,
versus
ATTORNEY GENERAL OF THE UNITED STATES,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE,
RUTH DOROCHOFF,
District Director, District Tampa, United States Citizenship
and Immigration Service,
LESLIE A. MEEKER,
Acting Tampa Field Office Director, United States Citizenship
and Immigration Service,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 15, 2014)
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Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit
Judges.
PER CURIAM:
Harry Heslop, a citizen of the United Kingdom, appeals the district court’s
dismissal of his complaint against the following defendants in their official
capacities: Eric Holder, Jr., the United States Attorney General; Janet Napolitano,
the Secretary of the Department of Homeland Security; Alejandro Mayorkas, the
Director of the United States Citizenship and Immigration Services (USCIS); Ruth
Dorochoff, the District Director of the USCIS Tampa, Florida Field Office; and
Leslie Meeker, the Acting Director of the USCIS Tampa, Florida Field Office.
Heslop also appeals the district court’s denial of his motion for reconsideration.
I.
On November 2, 2005, Heslop was admitted to the United States as a
conditional permanent resident. He obtained that status after USCIS approved his
petition for classification as an “alien entrepreneur” under 8 U.S.C. § 1153(b)(5).
As the name suggests, an alien entrepreneur “enter[s] the United States for the
purpose of engaging in a new commercial enterprise . . . [that] will benefit the
United States economy.” 8 U.S.C. § 1153(b)(5)(A)(ii). The alien must create full-
time jobs for at least ten workers in the United States before the condition on his
residence can be removed. See id.; id. § 1186b(c)(1), (d)(1)(B).
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In October 2007, Heslop petitioned for removal of the condition on his
residence. USCIS denied his petition, finding that he had failed to demonstrate
that he created or would soon create the requisite number of full-time jobs. Heslop
appealed and submitted additional evidence for USCIS’s consideration. On
December 15, 2010, USCIS vacated its prior decision but denied Heslop’s petition
once more. Specifically, it found that Heslop had “submitted evidence of only 2
full-time employees.”
In March 2010, Heslop married a United States citizen. He later filed an
application to adjust his status to permanent resident on the basis of that marriage,
and USCIS approved that application on May 18, 2011. Like the grant of
permanent resident status to an alien entrepreneur, the grant of permanent resident
status to an alien spouse is also on a conditional basis. See 8 U.S.C. § 1186a(a)(1).
In order for the condition to be removed, the alien and spouse generally must
timely file a joint petition requesting removal of the condition and submit to an
interview by immigration authorities. See id. § 1186a(c)(1), (d)(2)(A). Heslop
does not allege that he petitioned for removal of the alien spouse condition on his
residence or that the condition has been removed.
On November 11, 2011, Heslop applied for naturalization. On the
application, he stated that he was eligible for naturalization because he had resided
continuously in the United States for at least five years “after being lawfully
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admitted for permanent residence.” 8 U.S.C. § 1427(a)(1); see 8 C.F.R.
§ 316.2(a)(2). Heslop calculated that five-year period beginning on November 2,
2005, when he was granted conditional permanent resident status as an alien
entrepreneur. USCIS denied his application, explaining that, because Heslop did
not create the requisite number of full-time jobs as an alien entrepreneur, he had
not been “lawfully admitted for permanent residence” on November 2, 2005. As a
result, the relevant start date for naturalization purposes was May 18, 2011, when
he was granted conditional permanent resident status based on his marriage.
Counting from that date, Heslop was ineligible for naturalization. Heslop
requested a hearing before an immigration officer, who affirmed the denial of his
application in January 2013. See 8 U.S.C. § 1447(a).
Having exhausted his administrative remedies, Heslop filed suit in the
United States District Court for the Middle District of Florida in April 2013. He
sought review of USCIS’s denial of his application for naturalization under the
Immigration and Nationality Act (INA), 8 U.S.C. § 1421, and under the
Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A). Specifically, Heslop
alleged that USCIS had improperly denied his application because it considered
him admitted to the United States as of May 18, 2011, instead of November 2,
2005. He also alleged that USCIS’s denial of his application was “arbitrary,
capricious, [an] abuse of discretion, [or otherwise] not in accordance with law.”
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See 5 U.S.C. § 706(2)(A). In response, the defendants filed a motion to dismiss
Heslop’s complaint, arguing that Heslop had failed to state a claim under the INA
and that the court lacked subject matter jurisdiction over his APA claim. See Fed.
R. Civ. P. 12(b)(1), (6).
In February 2014, the district court granted that motion to dismiss.
Concerning Heslop’s INA claim, the court observed that Heslop had obtained
conditional permanent resident status based on his marriage but had failed to allege
that the condition had been removed. The court determined that Heslop’s failure
was fatal to his claim because conditional permanent residents were ineligible for
naturalization. Alternatively, the court noted that, even if the condition on
Heslop’s permanent resident status based on his marriage had been removed,
“there would still be an issue regarding whether he [had] resided in the United
States for at least five years after being lawfully admitted” for permanent
residence. Essentially, the court reasoned that, if Heslop could not show that he
satisfied the “condition” for alien-entrepreneur status — that he created full-time
jobs for at least ten workers in the United States — then he also could not show
that he had been “lawfully admitted” for permanent residence on November 2,
2005. And, by extension, he could not establish that his time in the United States
from that date through May 18, 2011 counted towards the INA’s five-year
residency requirement. As for Heslop’s APA claim, the court determined that he
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could not seek review under the APA because the INA provided an adequate
remedy.
Heslop timely filed a motion for reconsideration, which the district court
denied in April 2014. This is Heslop’s appeal of both of the district court’s orders.
II.
We review de novo a district court’s grant of a motion to dismiss for failure
to state a claim, accepting the well-pleaded factual allegations in the complaint as
true and drawing all reasonable inferences in the plaintiff’s favor. Adinolfe v.
United Techs. Corp., 768 F.3d 1161, 1169 (11th Cir. 2014); see Ashcroft v. Iqbal,
556 U.S. 662, 679,
129 S. Ct. 1937, 1950 (2009). Likewise, we review de novo a
district court’s grant of a motion to dismiss for lack of subject matter jurisdiction.
Maradiaga v. United States,
679 F.3d 1286, 1291 (11th Cir. 2012). We review for
an abuse of discretion a district court’s denial of a motion for reconsideration.
Equity Inv. Partners, LP v. Lenz,
594 F.3d 1338, 1342 (11th Cir. 2010).
A.
Generally, in order to become a naturalized United States citizen, an
applicant must show (among many other things) that he resided continuously in the
United States for at least five years “after being lawfully admitted for permanent
residence.” 8 U.S.C. § 1427(a)(1); see 8 C.F.R. § 316.2(a)(2); see also 8 U.S.C.
§ 1429. Heslop contends that the district court erred in dismissing his INA claim
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for failure to state a claim because he met that statutory requirement. Specifically,
Heslop argues that he “has been a Lawful Permanent Resident since he was
admitted as an alien entrepreneur on November 2, 2005.” Although his argument
is unclear, Heslop seems to assert that USCIS “reinstated” his status as a lawful
permanent resident on December 15, 2010, when it vacated its prior decision
denying his petition for removal of the condition on his residence. Heslop does not
challenge the district court’s finding that he failed to allege that the condition on
his permanent resident status based on his marriage had been removed, or its
conclusion that conditional permanent residents are ineligible for naturalization.
“When an appellant fails to challenge properly on appeal one of the grounds
on which the district court based its judgment, he is deemed to have abandoned any
challenge of that ground, and it follows that the judgment is due to be affirmed.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). Here,
the district court relied on two alternative grounds to conclude that Heslop had
failed to state a claim under the INA: first, that conditional permanent residents
are ineligible for naturalization; and second, that Heslop had not plausibly alleged
that he had resided in the United States for at least five years “after being lawfully
admitted for permanent residence.” Heslop challenges only the second ground. As
a result, we affirm the district court’s dismissal of his INA claim for failure to state
a claim.
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B.
Heslop also contends that the district court erred in dismissing his APA
claim for lack of subject matter jurisdiction. He argues that the APA entitles him
to judicial review of USCIS’s denial of his application for naturalization, and he
asks us to set aside that decision because it was “arbitrary, capricious, [an] abuse of
discretion, [or otherwise] not in accordance with law.” See 5 U.S.C. § 706(2)(A).
The APA provides for judicial review of “final agency action for which
there is no other adequate remedy in a court.” 5 U.S.C. § 704. Here, the INA
gives Heslop an adequate remedy: the ability to seek in federal district court de
novo review of USCIS’s denial of his application for naturalization after he
exhausts his administrative remedies. See 8 U.S.C. § 1421(c). Indeed, Heslop
brought his INA claim under that very provision. The APA does not authorize
judicial review “that adds to the sweeping de novo review” that the INA provides.
Escaler v. U.S. Citizenship and Immigration Servs., 582 F.3d 288, 291 n.1 (2d Cir.
2009). We affirm the district court’s dismissal of Heslop’s APA claim for lack of
subject matter jurisdiction.
C.
Heslop’s notice of appeal designates the district court’s order denying his
motion for reconsideration. In his brief to this Court, however, Heslop did not
argue that the district court abused its discretion in denying that motion. Indeed,
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he failed to list any issue at all related to the denial of his motion for
reconsideration. Thus, Heslop has abandoned any challenge to that order. See
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).
AFFIRMED.
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