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                                                                     [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11084
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cv-22737-DLG



AARON CAMACHO PEREZ,

                                                            Plaintiff-Appellant,

                                  versus

U.S. BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES (USCIS),
U.S. ATTORNEY GENERAL,
SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY (DHS),

                                                        Defendants-Appellees.

                       ________________________

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

                            (December 19, 2014)

Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      Aaron Camacho Perez appeals the dismissal of his complaint, challenging a

determination of the United States Citizenship and Immigration Services

(“USCIS”) that he was statutorily ineligible to adjust status under the Cuban

Adjustment Act of 1966. We reverse and remand.

                                I. BACKGROUND

A. Underlying Immigration Proceedings

      In November 2004, Perez, a native and citizen of Venezuela and citizen of

Cuba, applied for admission to the United States at Laredo, Texas, by presenting a

Cuban birth certificate; he also requested asylum. He attested he had been born in

Cuba and had moved to Venezuela with his mother, when he was three years old.

An immigration inspector determined Perez was inadmissible under INA

§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), because he did not have a valid

entry document.

      In June 2007, Perez applied to adjust his status under the Cuban Adjustment

Act of 1966 (“CAA”), Pub. L. No. 89-732, 80 Stat. 1161 (reproduced as a

historical note to Immigration and Nationality Act (“INA”) § 245, 8 U.S.C.

§ 1255). In his application, Perez said he was a Cuban citizen and national. His

submitted birth certificate stated Perez had been born in Cuba. In April 2009,

USCIS denied Perez’s application and found he was inadmissible under




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§ 1182(a)(6)(C)(i), because the birth certificate he had provided had been

fraudulently obtained, and he had been born in Venezuela.

      Also in April 2009, Perez was issued a Notice to Appear, which identified

him as an “arriving alien” and charged him with removability under

§§ 1182(a)(6)(C)(i) and (a)(7)(A)(i)(I). ROA at 35. An affidavit by a USCIS

officer stated a hearing before an immigration judge (“IJ”) was held in Perez’s case

in October 2010. 1 The IJ “made a finding regarding the respondent sustaining the

fraud charge.” ROA at 99. In November 2010, the IJ ordered Perez removed to

Cuba, or alternatively to Venezuela. The order stated an appeal had been waived.

ROA at 43.

      In March 2011, Perez again filed an application to adjust status under the

CAA. He submitted a Cuban civilian registered birth certificate dated February 23,

2011, which showed Perez had been born in Venezuela, and both of his parents

had been born in Cuba. In April 2012, Perez filed an application for a waiver of

inadmissibility.

      USCIS denied Perez’s second adjustment-of-status application in May 2012

and reiterated he was inadmissible under § 1182(a)(6)(C)(i), because of the

fraudulent Cuban birth certificate he had submitted with his June 2007 application.

USCIS denied Perez’s application for a waiver of inadmissibility for lack of

      1
          Appellees represent no transcript was made of Perez’s hearing before the IJ.

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evidence of extreme hardship. In July 2012, Perez filed a motion to reopen or

reconsider. USCIS denied this motion in April 2013, since Perez had not shown

how his family would suffer extreme hardship, plus his failure to show why his

current country conditions would inhibit him and his family from returning.

B. District Court Complaint

      In July 2013, Perez filed a complaint against (1) the USCIS Miami District

Director, (2) the Unitd States Attorney General, and (3) the Secretary of the

Department of Homeland Security (“DHS”). His complaint challenged the USCIS

determination he was statutorily ineligible to adjust status under the CAA. USCIS

had based its decision on its determination that Perez was inadmissible under INA

§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), because he had presented a

fraudulent Cuban birth certificate supporting his CAA application. Perez asserted

the district judge had jurisdiction to grant him mandamus relief, under 28 U.S.C.

§§ 1331 and 1361, and relief under the Administrative Procedure Act (“APA”), 5

U.S.C. § 701 et seq., and the Declaratory Judgment Act (“DJA”), 28 U.S.C.

§ 2201.

      Appellees moved to dismiss Perez’s complaint for lack of subject-matter

jurisdiction and failure to state a claim. ROA 70; see Fed. R. Civ. P. 12(b)(1), (6).

They argued the district judge lacked jurisdiction, because Perez had failed to

exhaust his administrative remedies, and the DJA independently did not confer


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jurisdiction on the judge. Appellees’ failure-to-state-a-claim argument was limited

to Perez’s request for mandamus relief.

C. Resolution of Motion to Dismiss Complaint in District Court

      In opposing appellees’ motion to dismiss his complaint, Perez argued the

judge had jurisdiction over his claims under both the APA and the DJA, in

conjunction with 28 U.S.C. § 1331, federal-question jurisdiction. Perez further

argued review was not precluded under the INA, because he did not seek review of

an order of removal or of any facts found during removal proceedings. Instead, he

sought to challenge the USCIS original eligibility determination, which he asserted

was unrelated to and independent of the IJ’s findings. Moreover, Perez contended

decisions made by the IJ in his removal proceedings were not legally binding on

USCIS in its second eligibility decision in 2012. Perez further asserted the INA

did not deprive the district judge of jurisdiction over nondiscretionary threshold

determinations of eligibility for adjustment of status, for which the APA provided a

remedy.

      Perez also contended he had exhausted his administrative remedies, because

applicable regulations barred an appeal of denial by USCIS of his adjustment-of-

status application. Given Perez’s Cuban descent and arriving-alien status, he could

not renew his CAA application in removal proceedings. He argued no other outlet




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remained for review of his statutory-eligibility claim or adjustment-of-status

application.

      Appellees replied Perez’s “self-inflicted predicament” arose from his waiver

of previously available remedies. ROA at 139. Appellees further argued Perez

was collaterally estopped from relitigating the IJ’s fraud determination. Appellees’

reply brief did not address their prior request that the judge dismiss Perez’s

complaint for failure to state a claim.

      The district judge granted appellees’ motion to dismiss. The judge

concluded he lacked jurisdiction over Perez’s complaint, because Perez had failed

to exhaust his available administrative remedies by waiving his appeal of the

inadmissibility determination, and by choosing not to seek reopening or

reconsideration of the IJ’s November 2010 fraud determination. Consequently, the

judge determined Perez’s claim was not ripe and dismissed it without prejudice.

The judge further concluded Perez had failed to state a claim for mandamus relief,

because whether to grant adjustment of status is a purely discretionary decision.

Perez could not evade the exhaustion requirement by seeking review under the

Mandamus Act, the APA, or the DJA.

      On appeal, Perez argues only USCIS, and not the IJ, had jurisdiction to

adjust his status under the CAA, because he has remained an “[a]rriving [a]lien.”

Appellant’s Br. at 18. Perez contends USCIS made its independent findings both


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before and after the IJ upheld the USCIS 2009 determination and is not bound by

the IJ’s findings. Perez asserts USCIS also has the authority to correct its 2009

decision because of newly obtained evidence, and the district judge may remand

with instructions to do so.

      Perez further argues he has exhausted his administrative remedies with

USCIS, since its 2009 and 2011 eligibility decisions are both administratively

final. He contends the district judge erroneously classified as a discretionary

finding by USCIS that Perez was statutorily ineligible to adjust his status. Because

USCIS is the only adjudicative body empowered to rule on Perez’s application, he

asserts his failure to seek an appeal with the Board of Immigration Appeals

(“BIA”) of the IJ’s decision has no bearing on the district judge’s authority to

review the USCIS finding. Appellees responded (1) Perez had failed to state a

claim for which relief could be granted, and (2) collateral estoppel barred review

by the judge of the IJ’s finding that Perez is inadmissible, because he had

submitted a fraudulent birth certificate in support of his requests for relief.

                                  II. DISCUSSION

A. Abandoned Claims

      Any arguments Perez may have had regarding the district judge’s dismissal

of his request for mandamus relief for failure to state a claim for which relief could

be granted and any claims under the DJA, he has abandoned by failing to raise


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them on appeal. See Timson v. Sampson, 

, 874 (11th Cir. 2008) (per

curiam) (recognizing a litigant who offers no substantive argument on an issue in

his initial brief abandons that issue on appeal). Consequently, the only remaining

issue on appeal is the judge’s determination he lacked jurisdiction over Perez’s

claim under the APA, because of Perez’s failure to exhaust available

administrative remedies.

B. Applicability of APA

      We review a district judge’s granting a motion to dismiss de novo, accept

the allegations in the complaint as true, and construe them in the light most

favorable to the plaintiff. See 

. When evaluating a dismissal

for lack of subject-matter jurisdiction, we review the judge’s legal conclusions de

novo and his factual findings for clear error. See Zinni v. ER Solutions, Inc., 

, 1166 (11th Cir. 2012).

      The APA provides: “A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The APA

further states “[a]gency action made reviewable by statute and final agency action

for which there is no other adequate remedy in a court are subject to judicial

review.” 

An agency action is final when two conditions are met:

(1) “the action must mark the consummation of the agency’s decision-making


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process[]—it must not be of a merely tentative or interlocutory nature”; and

(2) “the action must be one by which rights or obligations have been determined,

or from which legal consequences will flow.” Mejia Rodriguez v. U.S. Dep’t of

Homeland Sec., 

, 1145 (11th Cir. 2009) (per curiam) (citation and

internal quotation marks omitted). A reviewing judge shall “compel agency action

unlawfully withheld or unreasonably delayed” and set aside agency actions found

to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(1), (2)(A).

      Although the APA independently does not confer subject-matter jurisdiction,

28 U.S.C. § 1331 confers jurisdiction on federal judges to review agency action

under federal-question jurisdiciton. See Califano v. Sanders, 

, 105-07,

, 984-85 (1977). The APA, however, expressly excepts review under

its provisions where “statutes preclude judicial review,” or “agency action is

committed to agency discretion by law.” 5 U.S.C. § 701(a).

      The CAA provides:

      Notwithstanding the provisions of [INA § 245(c), 8 U.S.C. § 1255(c)],
      the status of any alien who is a native or citizen of Cuba and who has
      been inspected and admitted or paroled into the United States
      subsequent to January 1, 1959 and has been physically present in the
      United States for at least one year, may be adjusted by the Attorney
      General, in his discretion and under such regulations as he may
      prescribe, to that of an alien lawfully admitted for permanent
      residence if the alien makes an application for such adjustment, and
      the alien is eligible to receive an immigrant visa and is admissible to
      the United States for permanent residence.
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CAA § 1.

       The INA eliminates review by any court of discretionary decisions or actions

of the Attorney General or DHS Secretary. 2 Mejia 

(citing INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii)). The ultimate

decision whether to grant adjustment of status under the CAA is discretionary. See

CAA § 1. USCIS initial statutory-eligibility decisions, which are made before the

discretionary decision whether to grant adjustment of status, are purely legal

questions that do not implicate agency discretion. 3 See Mejia 

-44.

       The INA also eliminates judicial review of “any judgment regarding the

granting of relief under [INA § 245, 8 U.S.C. § 1255].” INA § 242(a)(2)(B)(i), 8

U.S.C. § 1252(a)(2)(B)(i). Adjustment of status typically is sought under

§ 1255(a). See INA § 245(a), 8 U.S.C. § 1255(a). An exception to the INA

jurisdiction-stripping provision appears in § 1252(d), which permits judicial review

of “constitutional claims or questions of law raised upon a petition for review filed

with an appropriate court of appeals in accordance with this section.” INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).

       2
        USCIS is an agency within DHS. See Toro v. Sec’y, U.S. Dep’t of Homeland Sec., 

, 1229 n.2 (11th Cir. 2013).
       3
         While the language of the INA gives authority to adjust status to the Attorney General,
Congress has allocated jurisdiction over adjustment applications to both DHS (and its delegate in
USCIS) and the Department of Justice. See Scheerer v. U.S. Att’y Gen., 

, 1251 &
n.6 (11th Cir. 2008) (citing 6 U.S.C. §§ 271(b)(5), 557; INA § 103(g)(1), 8 U.S.C. § 1103(g)(1)).

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      Immigration regulations provide “[n]o appeal lies from” denial by USCIS of

an application to adjust status under the CAA. 8 C.F.R. §§ 245.2(a)(5)(iii),

1245.2(a)(5)(iii). An applicant may, however, renew his application in removal

proceedings, unless he is an “arriving alien.” See 

1245.2(a)(5)(iii). If the applicant is an arriving alien, then the IJ lacks jurisdiction

to decide any adjustment-of-status application unless, among other things, the

applicant departed from and returned to the United States pursuant to the terms of a

grant of advance parole to pursue a previously filed adjustment-of-status

application. See 

Scheerer v. U.S. Att’y Gen., 

,

1248-49 & n.4 (11th Cir. 2008); see also In re Martinez-Montalvo, 24 I. & N. Dec.

778, 782 (BIA 2009) (“[USCIS] generally has exclusive jurisdiction to adjudicate

adjustment applications of arriving aliens. The only exception to this rule arises

when an alien who leaves the United States while an adjustment application is

pending with the USCIS returns pursuant to a grant of advance parole and is placed

in removal proceedings.”). The term “arriving alien” includes (1) aliens paroled,

but not admitted, into the United States, see 

& nn.1-

2, and (2) inadmissible aliens charged with removal under § 1182, see Dormescar

v. U.S. Att’y Gen., 

, 1265 (11th Cir. 2012).

      Appellees do not challenge Perez’s status as an “arriving alien.” Given that

status, the IJ lacked jurisdiction to adjudicate or to readjudicate Perez’s application


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for adjustment of status under the CAA, regardless of whether the IJ may have

purported to have done so. See 8 C.F.R. §§ 245.2(a)(5)(iii), 1245.2(a)(1)(ii),

(a)(5)(iii). Neither party has identified any other avenue through which Perez

could have sought review of the USCIS determination he was statutorily ineligible

for adjustment of status under the CAA. See 

1245.2(a)(1)(ii), (a)(5)(iii). The USCIS decision finally determined Perez’s

statutory eligibility for CAA relief; that decision was a final agency action for

purposes of the APA. See 5 U.S.C. § 704; Mejia 

(concluding the district judge had jurisdiction under the APA to review the

decision of the USCIS Administrative Appeals Office (“AAO”) that plaintiff was

statutorily ineligible for Temporary Protected Status under INA § 244A, 8 U.S.C.

§ 1254a, because plaintiff was unable to seek de novo review of that decision

before an IJ).

      Since the IJ lacked jurisdiction to readjudicate the USCIS initial CAA-

eligibility determination, see 8 C.F.R. §§ 245.2(a)(5)(iii), 1245.2(a)(1)(ii),

(a)(5)(iii), it follows the BIA also lacked jurisdiction. Because the BIA lacked

authority to review the USCIS CAA-eligibility determination, Perez had exhausted

his administrative remedies prior to commencing his proceedings before the IJ.

Consequently, the district judge erred when he determined Perez’s failure to




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exhaust available administrative remedies deprived him of jurisdiction over Perez’s

complaint.

C. Possible Jurisdiction-Stripping Provisions

       Although the CAA appears as a historical note to § 1255, it does not state

whether it is part of § 1255 or a wholly separate statute. If it is part of § 1255, then

any judicial review of the USCIS CAA-eligibility determination is precluded by

§ 1252(a)(2)(B)(i). See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i) (stating

that “no court shall have jurisdiction to review” “any judgment regarding the

granting of relief under [§ 1255]” (emphasis added)). If the CAA is not part of

§ 1255, then § 1252(a)(2)(B)(i) does not bar judicial review of this determination.

See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i).4

       The BIA has held the CAA is not part of § 1255. See In re Artigas, 23 I. &

N. Dec. 99, 104-06 (BIA 2001) (en banc) (concluding (1) the CAA “must . . . be

considered separate and apart from adjustment of status under section 245 of the

Act,” [8 U.S.C. § 1255], and (2) a prior version of 8 C.F.R. § 245.1(c), which

rendered certain aliens ineligible to adjust status “under section 245 of the Act,”

therefore did not bar such aliens from seeking relief under the CAA), superseded



       4
         Notably, Mejia Rodriguez addressed a request for relief under INA § 244A, 8 U.S.C.
§ 1254a, which is not covered by the jurisdiction-stripping provision in § 1252(a)(2)(B)(i). See
INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i); Mejia 

&
nn.4-6, 1146.

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on other grounds as recognized in Martinez-Montalvo, 24 I. & N. Dec. at 783. 5

The first sentence of the CAA supports this conclusion. See CAA § 1 (explaining

its provisions apply “[n]otwithstanding the provisions of section 245(c) of the

Immigration and Nationality Act, [8 U.S.C. § 1255(c)]”); see also Martinez-

Montalvo, 24 I. & N. Dec. at 783; In re Artigas, 23 I. & N. Dec. at 104-06.

Accordingly, we defer to the BIA’s determination that the CAA is not part of

§ 1255. See Poveda v. U.S. Att’y Gen., 

, 1172 (11th Cir. 2012)

(explaining, although we review the BIA’s statutory interpretation de novo, we

defer to the BIA’s interpretation of a statute, if it is reasonable and does not

contradict the clear intent of Congress).

       The parties have identified no authority addressing whether 8 C.F.R.

§§ 245.2(a)(5)(iii) and 1245.2(a)(5)(iii), which preclude any “appeal” from denial

by USCIS of an application to adjust status under the CAA, divest a district judge

of jurisdiction to review an initial statutory-eligibility determination by USCIS

under the APA. See 5 U.S.C. § 701(a)(1) (stating the APA does not apply where

“statutes preclude judicial review”). The more natural reading of

§§ 245.2(a)(5)(iii) and 1245.2(a)(5)(iii) supports the conclusion that the term

“appeal” applies only to internal agency appellate review, given (1) appeals from


       5
        In Martinez-Montalvo, the BIA confirmed its conclusion in In re Artigas that
adjustment under the CAA is “separate and apart from” adjustment under § 1255. See Martinez-
Montalvo, 24 I. & N. Dec. at 783 (internal quotation marks omitted).

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USCIS decisions generally lie in the AAO, see, e.g., Mejia 

, and (2) a complaint filed in district court under the APA is not an appeal but

an independent action, see 5 U.S.C. §§ 702-703; Fed. R. Civ. P. 3 (“A civil action

is commenced by filing a complaint with the court.”). Cf. Mejia 

n.16 (explaining “the APA explicitly requires exhaustion of all intra-

agency appeals mandated either by statute or by agency rule” (emphasis added)

(citation and internal quotation marks omitted)). We conclude neither INA

§ 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), nor 8 C.F.R. §§ 245.2(a)(5)(iii) and

1245.2(a)(5)(iii), bar an alien from seeking review before a district judge of the

USCIS legal determination that the alien is statutorily ineligible to adjust status

under the CAA.

      The doctrine of collateral estoppel, or issue preclusion, bars a judge from re-

litigating an issue when the identical issue has been litigated between the same

parties, and the matter was litigated fully and determined in a proceeding that

resulted in a final decision of a court of competent jurisdiction. Aldana v. Del

Monte Fresh Produce N.A., Inc., 

, 1291 (11th Cir. 2009). The IJ did

not have jurisdiction to review the USCIS CAA-eligibility determination. See 8

C.F.R. §§ 245.2(a)(5)(iii), 1245.2(a)(1)(ii), (a)(5)(iii). Contrary to appellees’

contention, any determination the IJ may have purported to have made on this

issue has no preclusive effect in this proceeding. See 

.


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D. Alternative Grounds for Affirmance

       Appellees arguing we alternatively may affirm the dismissal of Perez’s

APA-federal-question claim, because he failed to state a claim for which relief may

be granted, is unavailaing. Appellees’ failure-to-state-a-claim argument before the

district judge was limited to Perez’s request for mandamus relief, which is not at

issue in this appeal. The district judge should have the initial opportunity to

address this issue, following an opportunity for briefing by both parties. See

Access Now, Inc. v. Sw. Airlines Co., 

, 1331 (11th Cir. 2004)

(explaining we generally will not consider an issue that was not presented to the

district judge).

                                III. CONCLUSION

       We reverse the district judge’s dismissal for lack of subject-matter

jurisdiction, because of failure to exhaust administrative remedies, and remand for

further proceedings consistent with this opinion.

       REVERSED AND REMANDED.




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