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                                                                                [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 19-11193
                              ________________________

                         D.C. Docket No. 1:18-cv-24027-CMA


CANAL A MEDIA HOLDING, LLC,
ERICK ARCHILA,

                                                                     Plaintiffs-Appellants,

                                           versus

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al.,

                                                                    Defendants-Appellees.
                              ________________________

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

                                       (July 8, 2020)

Before MARTIN and NEWSOM, Circuit Judges, and WATKINS, * District Judge.

MARTIN, Circuit Judge:

       *
       Honorable W. Keith Watkins, United States District Judge for the Middle District of
Alabama, sitting by designation.
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      Plaintiffs Canal A Media Holding, LLC (“Canal A Media”) and Erick

Archila appeal the District Court’s dismissal of their amended complaint for lack

of subject-matter jurisdiction. They seek to challenge the decision by the United

States Citizenship and Immigration Services (“USCIS”) to deny Canal A Media’s

petition for a work visa for Mr. Archila. Having carefully reviewed this case, and

with the benefit of oral argument, we have decided that the denial of Canal A

Media’s visa petition was final agency action under the Administrative Procedure

Act (“APA”). Also, we hold that 8 U.S.C. § 1252(b)(9) and (g) do not bar the

Plaintiffs’ challenge to the visa petition denial. In keeping with these decisions, we

reverse the District Court’s dismissal of the Plaintiffs’ claims.

                                           I.

A. FACTUAL BACKGROUND

      On appeal of a district court’s grant of the motion to dismiss, our Court must

accept the factual allegations in the plaintiffs’ pleadings as true and construe them

in the light most favorable to the plaintiffs. Perez v. USCIS, 

, 964

(11th Cir. 2014) (per curiam).

      Established in 2006, Canal Antigua, S.A. (“Canal Antigua”) is a major news

and entertainment media company in Guatemala. In 2016, Canal Antigua formed a

wholly owned U.S.-based subsidiary, Canal A Media, as part of an effort by Canal

Antigua to reach Spanish-speaking Central Americans in the U.S. media market.



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      Canal Antigua wanted its president, Erick Archila, to serve as president of

Canal A Media. Mr. Archila, a Guatemalan national, is not a U.S. citizen. On

November 25, 2016, Canal A Media filed with USCIS a Form I-129 Petition for a

Nonimmigrant Worker (“I-129”) on behalf of Mr. Archila. An I-129 is the first

step on the road to an “L-1A” visa, which allows a multinational corporation to

transfer one of its “managerial” or “executive” employees to a branch, “affiliate,”

or “subsidiary” of that company located in the United States. See 8 U.S.C.

§ 1101(a)(15)(L); 8 C.F.R. § 214.2(l)(1)(i), (2)(i). At that time, Mr. Archila was

already lawfully present in the United States on a “B-2” visitor visa. The I-129

thus requested that USCIS change Mr. Archila’s status from B-2 to L-1A.

      After Canal A Media submitted the I-129, the Department of Homeland

Security (“DHS”) initiated removal proceedings against Mr. Archila, charging him

with removability for overstaying his B-2 visa. Mr. Archila then filed an

application for asylum before the immigration judge (“IJ”) in charge of his

removal proceedings. Mr. Archila is still in removal proceedings and his asylum

application remains pending with the IJ.

      USCIS denied Canal A Media’s I-129 on July 24, 2017. The denial was

based on USCIS’s finding that Canal A Media failed to establish a subsidiary

relationship with Canal Antigua, as required by 8 U.S.C. § 1101(a)(15)(L). The

agency came to this conclusion “because there was no ‘evidence of capital



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contribution [of Canal Antigua] in exchange for ownership [of Canal A Media].’”

R. Doc. 36 ¶ 31 (alterations in original) (quoting R. Doc. 36-1 at 4). Even though

Canal A Media—pursuant to a request by USCIS—submitted evidence seeking to

establish the agency’s capital-contribution requirement, USCIS rejected this

evidence because (1) a wire transfer Canal A Media submitted to show that Canal

Antigua was financing Canal A Media was in Guatemalan currency, not U.S.

Dollars; (2) the transfer occurred after the date Canal A Media filed the I-129; and

(3) Canal A Media did not present evidence that Canal Antigua authorized the

transfer.

see

B. PROCEEDINGS IN THE DISTRICT COURT

      On September 1, 2017, Canal A Media and Mr. Archila filed a federal

complaint in the Central District of California challenging USCIS’s denial of the

I-129. The Defendants are USCIS; DHS, of which USCIS is a component agency;

the Director of USCIS; the Secretary of Homeland Security; and the Director of the

USCIS California Service Center, the center that adjudicated Canal A Media’s

I-129. On September 30, 2018, the complaint was ordered transferred to the

Southern District of Florida, where Mr. Archila resides and in which Canal A

Media is incorporated. The Plaintiffs then filed an amended complaint, which is

the operative pleading in this case and which we refer to as the “Complaint.”




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        The Plaintiffs contend that USCIS’s capital-contribution requirement has no

basis in “statute, regulation, case law, or other authority.” They also say Canal A

Media did in fact satisfy the capital-contribution requirement in its response to

USCIS’s request for evidence. The Plaintiffs claim that USCIS’s adoption of the

capital-contribution requirement violated the APA; the new rule was improperly

retroactively applied, harming both Canal A Media and Mr. Archila; and the denial

of the I-129 violated Canal A Media’s due process. They seek, among other relief,

a declaration that USCIS acted unlawfully in denying Canal A Media’s I-129 and

an injunction requiring USCIS to approve the I-129 and grant Mr. Archila an L-1A

visa.

        The Defendants moved to dismiss the Complaint for lack of subject-matter

jurisdiction. The Defendants argued the Plaintiffs cannot challenge the I-129

denial because there is no “final agency action” given the pendency of removal

proceedings against Mr. Archila. They also argued that judicial review of USCIS’s

decision is precluded by 8 U.S.C. § 1252(g) and that, to the extent the Plaintiffs do

have any valid claims, 8 U.S.C. § 1252(b)(9) (known as the “zipper clause”)

requires those claims be brought in Mr. Archila’s removal proceedings. The

Plaintiffs opposed the motion.

        On March 27, 2019, the District Court granted the motion to dismiss. Canal

A Media Holding, LLC v. USCIS, 

, 1324 (S.D. Fla. 2019).



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The court first held the denial of the I-129 was not final agency action because Mr.

Archila’s removal proceedings are ongoing.

The District Court

held alternatively that § 1252(g) bars review of the I-129 denial “because this

action was filed after Mr. Archila’s removal proceedings commenced and

unmistakably sought to moot those proceedings.”

The District Court

also ruled that § 1252(b)(9) requires any claims the IJ or BIA cannot resolve be

brought to the Court of Appeals after Mr. Archila is ordered removed.

23. The Plaintiffs timely appealed.

                                         II.

      The APA provides a general authorization of judicial review for cases in

which “review [of agency action] is sought not pursuant to specific authorization in

the substantive statute.” Lujan v. Nat’l Wildlife Fed’n, 

, 882, 110 S.

Ct. 3177, 3185 (1990); see Fanin v. U.S. Dep’t of Veterans Affairs, 

,

877 (11th Cir. 2009) (stating that judicial review of agency action can be sought

via the APA when “the statute allegedly violated does not provide a private right of

action”). This provision applies here, where the challenged agency action is the

denial of a visa petition. See Cabaccang v. USCIS, 

, 1315 (9th Cir.

2010).

      In our circuit, dismissal for the reason that the challenged agency action was

not a final order is a dismissal for lack of subject-matter jurisdiction. See LabMD,



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Inc. v. FTC, 

, 1278, 1280 (11th Cir. 2015). That is true, too, for

dismissals under 8 U.S.C. § 1252(b)(9) and (g). See Madu v. U.S. Att’y Gen., 

, 1365–66 (11th Cir. 2006). We review de novo dismissal for lack of

subject-matter jurisdiction. 

.

                                         III.

      As set out above, the District Court dismissed the Complaint based on the

APA as well as two of 8 U.S.C. § 1252’s jurisdictional provisions. After careful

review, we conclude the District Court erred in its analysis of all three grounds for

dismissal. We therefore reverse its dismissal of the Complaint.

A. APA FINALITY

      In order to bring suit under the APA, plaintiffs must demonstrate that the

decision at issue was “final agency action.” 5 U.S.C. § 704; 

, 110 S. Ct. at 3185. The Supreme Court has set forth a two-part test for

determining whether agency action is “final” under the APA: “First, the action

must mark the consummation of the agency’s decisionmaking process—it must not

be of a merely tentative or interlocutory nature. And second, the action must be

one by which rights or obligations have been determined, or from which legal

consequences will flow.” U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S.

___, 

, 1813 (2016) (quoting Bennett v. Spear, 

, 177–

78, 

, 1168 (1997)). The “core question” about finality “is whether



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the agency has completed its decisionmaking process, and whether the result of

that process is one that will directly affect the parties.” Franklin v. Massachusetts,

, 797, 

, 2773 (1992).

      The District Court found that USCIS’s denial of Canal A Media’s I-129 was

not final agency action. In the eyes of the District Court, neither prong of the

finality analysis was satisfied in this case because Mr. Archila, the beneficiary of

the I-129, can still receive “similar relief to what he seeks here—lawful status in

the United States”—through his removal proceedings. Canal A Media, 369 F.

Supp. 3d at 1319. The District Court said that the Plaintiffs must wait until there is

“a final decision on [Mr. Archila’s] immigration status at the end of removal

proceedings” before they can file an APA suit raising the claims in their

Complaint.

      The District Court erred in its analysis of both finality prongs. First, the

I-129 denial was the consummation of USCIS’s decision-making process because

it was the agency’s final word on the matter. USCIS’s decision was neither “the

ruling of a subordinate official” nor a “tentative” recommendation on the visa

petition. See 

, 112 S. Ct. at 2773 (quoting Abbott Labs.

v. Gardner, 

, 151, 

, 1517 (1967)). This Court’s ruling

in Perez supports our conclusion on this point. In that case, Aaron Camacho Perez

was ordered removed and, in a separate proceeding, USCIS denied his petition for



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adjustment of status under the Cuban Adjustment Act. 

–63. A

panel of this Court held that Mr. Perez satisfied the finality requirement because

the IJ in his removal proceedings had no authority to review USCIS’s denial of his

adjustment petition.

In the case before us, as in Perez, the IJ in Mr.

Archila’s removal proceedings has no authority to alter USCIS’s decision to deny

Canal A Media’s visa petition. See Matter of Aurelio, 19 I. & N. Dec. 458, 460

(BIA 1987) (“[I]t is well established that immigration judges have no jurisdiction

to decide visa petitions . . . .”); see also Oral Argument Recording at 21:02–21:13

(June 9, 2020) (Defendants’ Counsel: “[The IJ] does not have jurisdiction to

review the visa decision.”); see generally 8 C.F.R. § 214.2(l) (setting forth

procedures for securing approval of L-1A visa, including filing an I-129 petition).

Therefore here, as in Perez, USCIS’s decision consummated its decision-making

process, making the denial of the I-129 final.

      The Defendants attempt to distinguish Perez because Mr. Perez, unlike Mr.

Archila, had already been ordered removed when he filed his federal complaint.

True, but this fact was irrelevant to Perez’s finality analysis. What matters is

whether the decision is subject to further review. See 

(stating that, even if the IJ “may have purported” to attempt to review Mr. Perez’s

second adjustment denial, USCIS’s action was final because the IJ “lacked

jurisdiction to adjudicate or to readjudicate” the petition (emphasis added)). This



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conclusion is in line with Ibarra v. Swacina, 

(11th Cir. 2010) (per

curiam). In Ibarra, a panel of this Court held that federal courts may not hear an

APA claim regarding denial of a petition for status adjustment if there are

“deportation proceedings pending in which the [adjustment] decision might be

reopened or challenged.”

(quotation marks omitted). There is no such

opportunity in this case, which means the agency proceedings have been

consummated.

      USCIS’s denial of the I-129 also satisfies the second prong of the finality

test because it conclusively determined the Plaintiffs’ legal rights and obligations.

In deciding to the contrary, the District Court failed to consider whether Canal A

Media, the visa petitioner, can participate in Mr. Archila’s removal proceedings.

Canal A Media is not a party to Mr. Archila’s removal proceeding and has no

standing to request an L-1A visa for him in that forum. See Br. of Appellants at 19

n.4. The importance of this factual wrinkle is clearly shown by Ibarra, in which

our Court held USCIS’s denial of the plaintiff’s application for adjustment to legal

permanent resident status was not final agency action because the petitioner could

(and did) renew her adjustment application in her removal 

. Since it has no further “opportunity to obtain” a change in Mr. Archila’s

status, Canal A Media has received a final adjudication of its rights and obligations

regarding the I-129. See

cited by the Defendants, Dhakal v.



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Sessions, 

(7th Cir. 2018), and Jama v. DHS, 

(6th Cir.

2014), are distinguishable for similar reasons. In both cases, the court of appeals

held that the denial of an adjustment petition was not final where the plaintiff

himself had the ability to receive the same or nearly identical relief in his removal

proceedings. See 

; 

–97. Not so here.

                                    *     *      *

      USCIS’s denial of Canal A Media’s I-129 was final because Canal A Media

has gone as far as it can in obtaining administrative adjudication of the I-129 and

neither Plaintiff can displace that decision through Mr. Archila’s removal

proceedings. The District Court thus erred in dismissing the Complaint for failure

to satisfy the APA’s finality requirement.

B. JURISDICTIONAL PROVISIONS OF THE IMMIGRATION LAWS

      We turn now to 8 U.S.C. § 1252, Congress’s comprehensive scheme for

judicial review of removal orders. The District Court held that regardless of

whether USCIS’s denial of the I-129 was final agency action, the Complaint was

due to be dismissed under § 1252(b)(9) and (g). We disagree on both counts.

          1. Section 1252(b)(9): the “Zipper Clause”

      Section 1252(b)(9)—commonly known as the “zipper clause”—“bars review

of claims arising from ‘action[s]’ or ‘proceeding[s] brought to remove an alien.’”

DHS v. Regents of Univ. of Cal., 591 U.S. ___, 

, 1907 (2020)



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(alterations in original) (quoting 8 U.S.C. § 1252(b)(9)). As the Supreme Court

recently explained, the zipper clause “does not present a jurisdictional bar where

those bringing suit are not asking for review of an order of removal, the decision to

seek removal, or the process by which removability will be determined.”

(quotation marks omitted). Our Court has similarly clarified

that the zipper clause only affects cases that “involve[] review of an order of

removal.” 

.

      The District Court dismissed the Complaint as barred by 8 U.S.C.

§ 1252(b)(9). See Canal A 

–23. Without reference

to Madu, the court applied the zipper clause because it found the Plaintiffs’ claims

to be “inextricably linked to any ultimate removal order against Mr. Archila.”

This was error.

      The District Court’s expansive interpretation of the zipper clause does not

square with that provision’s “narrow” scope. See 

. The

zipper clause is not intended to cut off claims that have a tangential relationship

with pending removal proceedings. See J.E.F.M. v. Lynch, 

, 1032

(9th Cir. 2016) (“[C]laims that are independent of or collateral to the removal

process do not fall within the scope of § 1252(b)(9).”). Instead, a claim only

“aris[es] from” a removal proceeding when the parties are “challenging . . .

removal proceedings.” 

; see 

.



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This rule makes sense. The zipper clause promotes judicial economy by

consolidating “challenges to any action related to removal proceedings . . . with the

review of the final order of removal.” 14A Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 3664 (4th ed. Apr. 2020 update). Here,

because the Plaintiffs have not brought any challenge to Mr. Archila’s removal

proceedings, the zipper clause’s channeling function has no role to play.

         2. Section 1252(g): Exclusive Jurisdiction

      “Section 1252(g) is similarly narrow.” 

. This

provision bars judicial review over “any cause or claim by or on behalf of any alien

arising from the decision or action . . . to commence proceedings, adjudicate cases,

or execute removal orders.” 8 U.S.C. § 1252(g). Section 1252(g) does not

“cover[] ‘all claims arising from deportation proceedings’ or impose[] ‘a general

jurisdictional limitation.’” 

(quoting Reno v. Am.-Arab

Anti-Discrimination Comm. (“AAADC”), 

, 482, 

, 943

(1999)). Instead, § 1252(g) bars challenges only to the “three discrete actions”

enumerated in the statute. 

, 119 S. Ct. at 943.

      The District Court held that the Plaintiffs’ claims were barred by § 1252(g)

because the relief sought in this case might have the practical effect of “moot[ing]”

the removal proceedings against Mr. Archila. Canal A 

–22. Here, too, the District Court engaged in an impermissibly broad reading



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of one of § 1252’s jurisdictional provisions. When asking if a claim is barred by

§ 1252(g), courts must focus on the action being challenged. Because the I-129

denial “is not a decision to ‘commence proceedings,’ much less to ‘adjudicate’ a

case or ‘execute’ a removal order,” the Plaintiffs’ challenge to it is not barred.

; see also 

, 119 S. Ct. at 944

(stating that § 1252(g) ensures challenges to the three discretionary actions

mentioned in the statute are not heard “outside the streamlined process that

Congress has designed”).

                                          IV.

      The Plaintiffs seek review of final agency action. Their challenge is not

barred by 8 U.S.C. § 1252(b)(9) or (g). As a result, we reverse the District Court’s

dismissal of the Complaint for lack of subject-matter jurisdiction and remand for

further proceedings consistent with this opinion.

      REVERSED AND REMANDED.




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NEWSOM, Circuit Judge, concurring:

      I join the Court’s opinion in full. I write separately only to emphasize (what

is to me, anyway) the obvious correctness of the Court’s holding that USCIS’s

denial of Canal A Media’s Form I-129 visa petition constituted “final agency

action” within the meaning of § 704 of the Administrative Procedure Act. See 5

U.S.C. § 704.

      In determining whether agency action is “final” for APA purposes, the

Supreme Court has emphasized, first and foremost, that “the action must mark the

consummation of the agency’s decisionmaking process,” Bennett v. Spear, 

, 177–78 (1997) (emphasis added) (quotation omitted), or, alternatively,

that “the agency has completed its decisionmaking process,” Franklin v.

Massachusetts, 

, 797 (1992) (emphasis added). Those formulations

tee up an important—and here, apparently dispositive—question: What is the

relevant “agency”? It seems to me self-evident—and so far as I can tell, all

agree—that the “agency” whose “decisionmaking process” we have to evaluate

here is USCIS, the instrumentality of the federal government responsible for

evaluating I-129 petitions. See 8 C.F.R. § 214.2(l).

      The government contends here—and the district court held—that USCIS’s

denial of Canal A Media’s I-129 petition didn’t constitute “final agency action”

because Mr. Archila, on whose behalf Canal A Media sought the I-129, was still in



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the middle of removal proceedings before an immigration judge. That is triply

wrong—and, it seems to me, at the most basic level(s).

       First, the government asks us to agency-jump. USCIS’s decisionmaking

process hasn’t run its course, the government says, because an immigration judge

is still working. But USCIS and the immigration court are altogether different

“agenc[ies].” Cf. 5 U.S.C. § 701(b)(1) (defining “agency” to mean “each authority

of the Government of the United States, whether or not it is within or subject to

review by another agency”). More than that, they are housed in altogether

different departments—USCIS exists within the Department of Homeland

Security,1 whereas the immigration court operates under the auspices of the

Department of Justice. 2 The executive branch has an architecture—granted, not

always perfectly elegant, but an architecture nonetheless—and the government’s

position defies it.

       Second, not only are the agencies themselves different, the participants in

the proceedings before them are different. The only party properly before USCIS

was Canal A Media, the visa petitioner; Mr. Archila, although the petition’s

intended beneficiary, was not a party to the I-129 proceedings. See 8 C.F.R.



1
 See Operational and Support Components, U.S. Dep’t of Homeland Sec.,
https://www.dhs.gov/operational-and-support-components (last visited July 7, 2020).
2
 See Executive Office for Immigration Review, U.S. Dep’t of Justice,
https://www.justice.gov/eoir (last visited July 7, 2020).


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§ 103.2(a)(3). Conversely, in the ongoing removal proceedings before the IJ, Mr.

Archila is the lone participant; Canal A Media has no right to appear.

      Finally, not only are the agencies different, and the parties before them

different, but their respective jurisdictions—for purposes of this case, anyway—are

different, as well. While USCIS and immigration courts share jurisdiction over a

limited range of issues—for instance, eligibility for Temporary Protected Status,

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

, 1140

(11th Cir. 2009)—only USCIS has authority to decide Canal A Media’s I-129 visa

petition, see 8 C.F.R. § 214.2(l)(1)(i); Matter of Aurelio, 19 I. & N. Dec. 458, 460

(BIA 1987). The IJ handling Mr. Archila’s removal proceedings has no

jurisdiction to consider, grant, or deny Canal A Media’s petition, let alone to

review USCIS’s denial.

      At 30,000 feet, then, the government’s position just can’t be right. USCIS’s

rejection of Canal A Media’s I-129 petition is not non-“final” simply because a

different agency that is housed in a different executive-branch department and is

vested with jurisdiction over different issues and is presiding over a different

proceeding involving a different party hasn’t finished its different business.




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