Filed: Oct. 23, 2020
Latest Update: Oct. 24, 2020
Summary: Case: 19-30646 Document: 00515614438 Page: 1 Date Filed: 10/23/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 23, 2020 No. 19-30646 Lyle W. Cayce Clerk Josue Benavides Nolasco, Plaintiff—Appellant, versus Stanley Crockett, Field Office Director, New Orleans Field Office, U.S. Citizenship and Immigration Services; U.S. Citizenship and Immigration Services, Defendants—Appellees. Appeal from the United States District Court for t
Summary: Case: 19-30646 Document: 00515614438 Page: 1 Date Filed: 10/23/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 23, 2020 No. 19-30646 Lyle W. Cayce Clerk Josue Benavides Nolasco, Plaintiff—Appellant, versus Stanley Crockett, Field Office Director, New Orleans Field Office, U.S. Citizenship and Immigration Services; U.S. Citizenship and Immigration Services, Defendants—Appellees. Appeal from the United States District Court for th..
More
Case: 19-30646 Document: 00515614438 Page: 1 Date Filed: 10/23/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 23, 2020
No. 19-30646 Lyle W. Cayce
Clerk
Josue Benavides Nolasco,
Plaintiff—Appellant,
versus
Stanley Crockett, Field Office Director, New Orleans Field
Office, U.S. Citizenship and Immigration Services; U.S.
Citizenship and Immigration Services,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-7101
ON PETITION FOR PANEL REHEARING
Before Jolly, Jones, and Engelhardt, Circuit Judges.
E. Grady Jolly, Circuit Judge:
The petition for panel rehearing is hereby GRANTED.
Since the prior opinion issued, the Supreme Court decided Nasrallah
v. Barr, 140 S. Ct. 1683 (2020), which clarified the meaning of the statutory
term “final order of removal.” Without expressing an opinion as to whether
Nasrallah may have partially abrogated portions of Cardoso v. Reno, 216 F.3d
Case: 19-30646 Document: 00515614438 Page: 2 Date Filed: 10/23/2020
No. 19-30646
512 (5th Cir. 2000), the opinion we earlier relied on, we have chosen not to
base our decision on Cardoso. Just last year, in Melendez v. McAleenan, 928
F.3d 425 (5th Cir.), cert. denied,
140 S. Ct. 561 (2019), this court decided a
case both factually and procedurally reflective of the case at bar. We find
Melendez the guiding precedent to decide this appeal.
Accordingly, we WITHDRAW the court’s prior opinion of May 6,
2020, and the following opinion is substituted therefor.
OPINION
Josue Benavides Nolasco seeks review of USCIS’s legal
determination declaring him ineligible for adjustment to permanent status.
Although he has been granted Temporary Protected Status (TPS), he had
entered the United States illegally, which would ordinarily bar the
adjustment he seeks. He appeals the district court’s dismissal for lack of
jurisdiction over his claim. We reverse the district court’s holding that it
lacked jurisdiction, but asserting our jurisdiction over his claim, hold that his
claim has no merit. We therefore dismiss the complaint with prejudice.
I.
Appellant Josue Benavides Nolasco is a national and citizen of El
Salvador. In 1997, he entered the United States unlawfully. But in 2002, the
government granted him TPS, which means, among other things, that he is
legally entitled to live and work in the United States until his TPS is
withdrawn. See 8 U.S.C. § 1254a. In 2014, Nolasco sought to have his status
adjusted to become a permanent resident. Because he had entered the
country illegally, Nolasco’s request was denied; the government determined
that he had not been “inspected and admitted or paroled” into the United
States as required for the adjustment he seeks. See 8 U.S.C. § 1255(a).
2
Case: 19-30646 Document: 00515614438 Page: 3 Date Filed: 10/23/2020
No. 19-30646
Nolasco argues that the government’s grant of TPS served to inspect
and admit or parole him into the United States, rendering his illegal entry
irrelevant. Indeed, this proposition is not unfounded, as it is the law in
several other circuits. 1 Seeking to challenge the government’s legal
interpretation—not the denial of his application itself—but unable to appeal
within the immigration system, 2 Nolasco brought this suit in federal district
court under several statutes, including the Administrative Procedure Act, 5
U.S.C. §§ 701–706. The government moved to dismiss Nolasco’s claims. It
argued that 8 U.S.C. § 1252(a)(2)(B)—a statute that removes some
immigration decisions from the ambit of judicial review—stripped the
district court of jurisdiction. The district court agreed and dismissed
Nolasco’s case under Federal Rule of Civil Procedure 12(b)(1). Nolasco has
properly appealed.
II.
As mentioned above, Nolasco’s journey treads the path of another
litigant before this court, Oscar Ernesto Melendez. Melendez v. McAleenan,
928 F.3d 425 (5th Cir. 2019). Like Nolasco, after spending time illegally
present in the United States, Melendez applied for and received TPS.
Id. at
426. Several years later, Melendez filed an application for adjustment of
status, which was denied by the government because of a legal determination
1
Ramirez v. Brown, 852 F.3d 954, 961 (9th Cir. 2017); Flores v. U.S. Citizenship &
Immigration Servs.,
718 F.3d 548, 553–54 (6th Cir. 2013). But see Sanchez v. Sec'y United
States Dep't of Homeland Sec.,
967 F.3d 242, 251 (3d Cir. 2020); Serrano v. U.S. Atty. Gen.,
655 F.3d 1260, 1265 (11th Cir. 2011) (reaching the opposite conclusion).
2
8 C.F.R. § 245.2(a)(5)(ii) provides that “[n]o appeal lies from the denial of an
application” for adjustment of status, but “the applicant . . . retains the right to renew his
or her application in [removal] proceedings.” However, Nolasco cannot be placed in
removal proceedings as the government “shall not remove” him or others with TPS
“during the period in which such status is in effect.” 8 U.S.C. 1254a(a)(1)(A).
3
Case: 19-30646 Document: 00515614438 Page: 4 Date Filed: 10/23/2020
No. 19-30646
that his time spent illegally present in the United States rendered him
ineligible for an adjustment—again, just like Nolasco. Id. And analogous to
Nolasco, Melendez filed an APA suit, challenging the legal determination of
his ineligibility for an adjustment of status, but he did not challenge the actual
denial of an adjustment itself.
Id.
In Melendez’s case, the district court dismissed his claims for lack of
jurisdiction. On appeal, this court reversed, holding that 8 U.S.C. §
1252(a)(2)(B) precludes courts from reviewing only certain discretionary
immigration decisions, but not legal determinations.
Id. (citing Mireles-
Valdez v. Ashcroft,
349 F.3d 213, 215–16 (5th Cir. 2003)). We said that
nondiscretionary decisions, such as statutory interpretation and other “pure
legal task[s],” do not involve the “review of an [adjustment of status
application] decision on the merits[.]” Akhtar v. Gonzales,
450 F.3d 587, 592
(5th Cir. 2006). These nondiscretionary decisions are “distinct” and
therefore may be reviewed by the courts.
Id. 3 The Melendez court went on
to hold that Melendez challenged “a nondiscretionary decision based on the
finding he was statutorily ineligible, making Section 1252(a)(2)(B)(i)’s
jurisdictional bar inapplicable.”
Melendez, 928 F.3d at 426–27.
We follow Melendez in holding that Nolasco sought review of the
government’s legal interpretation of statutory provisions that govern TPS
and adjustment of status. See 8 U.S.C. §§ 1254a, 1255(a). Since this is a
3
Although language in Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir. 2008), may
appear unclear on whether our review distinguishes between discretionary and
nondiscretionary decisions for purposes of jurisdiction, the distinction is preserved; the
Ayanbadejo court simply found that one of the questions the plaintiffs presented as a legal
determination was actually a question of fact. See
id. at 277 n.11 (“Although the
Ayanbadejos argue that USCIS’s basis for refusing to adjust John’s status was a legal
conclusion that a non-viable marriage precluded the change-in-status John requested,
USCIS’s predicate determination of whether the Ayanbadejos had a bona fide marriage
was a question of fact, not law . . . .”).
4
Case: 19-30646 Document: 00515614438 Page: 5 Date Filed: 10/23/2020
No. 19-30646
“pure legal task,” it is a nondiscretionary decision that is not barred by the
jurisdiction-stripping statute. The district court thus erred. 4 We do have
jurisdiction to address Nolasco’s claims and proceed further to decide this
appeal.
III.
Melendez continues to be our guide. In Melendez, the government had
moved for dismissal at the district court based on lack of jurisdiction and
failure to state a claim, each of which Melendez contested. Id. at 426. In
ruling on these arguments, the district court acknowledged both bases for
dismissal but only held that there was no jurisdiction, dismissing under
Federal Rule of Civil Procedure 12(b)(1).
Id. It did not reach the Rule
12(b)(6) claim.
Id. On appeal, the government and the petitioner each
renewed their respective arguments.
Id. at 427.
After deciding that the district court did in fact have jurisdiction—and
acknowledging that the “ruling by the district court was based on
jurisdiction”—the Melendez panel noted that it was “free to uphold the . . .
[district court’s] judgment on any basis that is supported by the record.”
Id.
at 427 (quoting Zuspann v. Brown,
60 F.3d 1156, 1160 (5th Cir. 1995)).
Because the Rule 12(b)(6) issue had been litigated, the court proceeded to
decide whether Melendez had stated a claim.
Id. Cf. Trinity Marine Prod.,
Inc. v. United States,
812 F.3d 481, 486 (5th Cir. 2016) (stating that a court
need not reverse a matter decided under Federal Rule of Civil Procedure
12(b)(1) “where a remand would only require a new Rule 12(b)(6) label for
the same Rule 12(b)(1) conclusion”). That analysis began by reviewing
4
We should note that the district court did not have the benefit of Melendez when
it was ruling on the government’s motion to dismiss, as Melendez was not published until
later in the same month.
5
Case: 19-30646 Document: 00515614438 Page: 6 Date Filed: 10/23/2020
No. 19-30646
Melendez’s claims de novo. Melendez, 928 F.3d at 427. After the panel
accepted all well-pled facts as true and viewed all facts in the light most
favorable to the plaintiff, the court noted that for Melendez, the only issue in
dispute was a legal one: whether, notwithstanding his earlier time illegally
present in the United States, TPS could serve to “inspect and admit or
parole” him into this country, thus rendering him eligible for adjustment to
permanent status.
Id. Finding that the grant of TPS plainly did not cure his
illegal entry according to the terms of the statute, the court held that
“[c]onsequently, as a matter of law, Melendez failed to state a claim upon
which relief can be granted.”
Id. at 429. The decretal language confirmed
the case’s holding, vacating the district court’s judgment that there was no
jurisdiction and entering judgment that the complaint, seeking eligibility for
adjustment of status, be dismissed with prejudice (as it failed to state a claim).
Id. In short, the grant of TPS status did not cure his ineligibility.
We again let Melendez guide our analysis. Here, before the district
court, the government also moved for dismissal based on lack of jurisdiction
and also on failure to state a claim; here, Nolasco responded to both of those
arguments. The district court acknowledged both arguments and dismissed
the case on jurisdictional grounds under Rule 12(b)(1). On this appeal,
Nolasco renewed his contention that he had meritorious claims; the
government argued, in the alternative, that the district court’s ruling should
be upheld on Rule 12(b)(6) grounds. With the same procedural background
in place, we make the same choice that the Melendez court made and decide
this case on Rule 12(b)(6) grounds. The sole issue Nolasco presents for our
review is a legal one, and Melendez clearly states that TPS does not create a
“fictional legal entry” for those who first made their way into this country
illegally. Melendez, 928 F.3d at 427–29. Therefore, Nolasco fails to state a
claim upon which relief can be granted, and his suit must be dismissed.
6
Case: 19-30646 Document: 00515614438 Page: 7 Date Filed: 10/23/2020
No. 19-30646
IV.
In this opinion, we have held that the result in this appeal is dictated
by our precedent in Melendez. We have applied Melendez to determine that
the district court did in fact have jurisdiction to hear Nolasco’s claims. We
have further applied Melendez to hold that Nolasco has failed to state a legally
cognizable claim. Those with TPS who first entered the United States
unlawfully are foreclosed from applying for adjustment of status as a matter
of law.
The judgment of the district court concluding there was no
jurisdiction is therefore VACATED. We hold that the complaint be
DISMISSED WITH PREJUDICE and REMAND for judgment to be
entered accordingly.
DISMISSED and REMANDED for entry of judgment.
7
