Nolasco v. Crockett, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-30646

JOSUE BENAVIDES NOLASCO,

Plaintiff - Appellant

v.

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

Before JOLLY, JONES, and ENGELHARDT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this appeal, we are asked to determine whether, under the
Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., the district court
had jurisdiction to review the denial of Josue Benavides Nolasco’s application
to United States Citizenship and Immigration Services (USCIS) for lawful
permanent resident (LPR) status, where no removal proceedings had been
initiated against him. That question has already been addressed and
answered. Cardoso v. Reno, 216 F.3d 512, 517–18 (5th Cir. 2000); Petrenko-
Gunter v. Upchurch, No. 05-11249, 2006 WL 2852359, at *1 (5th Cir. Oct. 2,
2006) (unpublished); Velasquez v. Nielsen, 754 F. App’x 256, 261 (5th Cir.
United States Court of Appeals
Fifth Circuit
FILED
May 6, 2020

Lyle W. Cayce
Clerk
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2018). Because the answer is unfavorable to Nolasco’s claim, we affirm the
district court’s dismissal of the case for want of subject-matter jurisdiction.
Fed. R. Civ. P. 12(b)(1).
I.
Appellant Josue Benavides Nolasco is a national and citizen of El
Salvador. He enjoys temporary protected status (TPS), which means, among
other things, that he is entitled to live and work in the United States until his
TPS is withdrawn. United States v. Orellana, 405 F.3d 360, 361–62 (5th Cir.
2005); 8 U.S.C. § 1254a(a)(1). Nolasco admits that years ago he crossed the
southern border “without inspection,” and he does not claim to have ever been
“paroled into the United States.” See 8 U.S.C. § 1255(a) (to be eligible for an
adjustment to LPR status, aliens must be “inspected and admitted or paroled
into the United States”). Nevertheless, he has spent more than a decade trying
to obtain an adjustment to LPR status. He has long maintained that, pursuant
to 8 U.S.C. § 1254a(f)(4), his TPS automatically renders him “inspected and
admitted” for adjustment-of-status purposes. But USCIS has disagreed.
Indeed, USCIS has rebuffed Nolasco’s efforts to obtain LPR status on more
than one occasion, most recently by rejecting a status-adjustment application
submitted in 2014.
II.
Having tried and failed to persuade USCIS of his statutory eligibility,
Nolasco has now turned to the courts. He sued USCIS and the director of its
New Orleans field office in the Eastern District of Louisiana, seeking
injunctive and declaratory relief including an “order [requiring] that [his
status-adjustment] application be approved.” Nolasco has asserted
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jurisdiction under the APA and an assortment of other federal statutes.
1
The
complaint iterated Nolasco’s view that TPS “makes [him] eligible as a matter
of law to adjust his status to that of a Lawful Permanent Resident.” Nolasco
further asserted that the denial of his application for LPR status constitutes
an error of law for the district court to review. Dismissing these contentions,
the district court granted the government’s motion to dismiss for lack of
jurisdiction. Relying on our decision in Cardoso v. Reno, the district court
reasoned that “there is still a remedy available to [Nolasco], and where there
is still an adequate remedy available during removal proceedings, the denial
of a request for adjustment of status is not a [reviewable] agency action.” To
put it another way, the district court held that Nolasco has not exhausted his
administrative remedies and, consequently, the federal courts have no
jurisdiction to hear his claim under the APA. See 8 C.F.R. § 245.2(a)(5)(ii).
III.
We think the district court did not err, and we thus affirm its judgment.
Cardoso controls this case. In Cardoso, we considered a status-adjustment
claim brought by an alien named Aurora Moran, who, like Nolasco, had “never
faced a removal order.” 216 F.3d at 517. Moran, like Nolasco, had argued that
the denial of her application was premised on a legal error, which the district
court had jurisdiction to decide. Id. at 514. Moreover, like Nolasco here, Moran
had no means of compelling the Executive Branch to initiate removal
proceedings, meaning that she also lacked a procedural means of self-initiating
the process that could eventually result in judicial review of her claim. See
Alvidres-Reyes v. Reno, 180 F.3d 199, 205 (5th Cir. 1999) (aliens cannot compel

1
The district court rejected Nolasco’s arguments for jurisdiction under the
Immigration and Nationality Act, the Declaratory Judgment Act, the All Writs Act, and the
Mandamus Act. On appeal, Nolasco abandons these statutes and relies exclusively on the
APA.
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the Executive Branch to “initiate [removal] proceedings or adjudicate . . .
deportability”). Indeed, like Nolasco, Moran contended that she was entitled
to pursue her claim for adjustment of status in federal district court rather
than wait for removal proceedings that might never take place.
We were not persuaded by Moran’s arguments. We held that the district
court lacked jurisdiction to hear Moran’s claim. Cardoso, 216 F.3d at 518.
Citing 8 U.S.C. § 1252(d), 8 C.F.R. § 245.2(a)(5)(ii), and two out-of-circuit
opinions, we explained that aliens denied adjustment to LPR status must
“renew [their] request[s] upon the commencement of removal proceedings.”
Cardoso, 216 F.3d at 518 (citing McBrearty v. Perryman, 212 F.3d 985, 987 (7th
Cir. 2000) and Randall v. Meese, 854 F.2d 472, 482 (D.C. Cir. 1988)).
Otherwise, we said, they have not “yet exhausted [their] administrative
remedies and this Court may not exercise jurisdiction.” Id.
Cardoso would certainly seem to settle the matter. To be sure, Nolas co
even concedes that, like the alien in Cardoso, he has “sought judicial review of
[an] adjustment-of-status denial[] that could also be reviewed in removal
proceedings.” But Nolasco further says that Cardoso should not be the “first
and last word on APA review in [his] case.” He distinguishes Cardoso’s holding
from this case, arguing that, unlike Moran, he has asserted jurisdiction under
the APA’s jurisdictional provision, 5 U.S.C. § 704. But in Petrenko-Gunter, an
unpublished case, we rejected a similar argument and applied Cardoso to an
APA claim:
It is true that the plaintiff in Cardoso asserted jurisdiction under
a different statute, but both statutes require final agency action as
a prerequisite to judicial review. The APA, like 8 U.S.C. § 1252(d),
which we considered in Cardoso, makes it clear that only “[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.” 5 U.S.C. § 704. Cardoso, which held that denial
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of a request for adjustment of status is not a final agency action for
which there are no other remedies, thus controls. 216 F.3d at 518.
Petrenko-Gunter, 2006 WL 2852359, at *1.
We recognize that this unpublished authority is only persuasive
precedent, but we are convinced by its reasoning and today adopt it as the law
of the circuit. As explained in Petrenko-Gunter, the principles espoused in
Cardoso apply with equal force in the APA context because the APA requires
exhaustion of remedies, the same as does the statute under which the plaintiffs
in Cardoso sought relief.
2

IV.
To sum up: Cardoso controls the appeal before us, and Petrenko-Gunter,
which we have adopted as precedent of this circuit, underscores and supports
our conclusion. The controlling principle is: federal courts lack jurisdiction
over challenges to the denial of aliens’ applications for LPR status unless and
until the challenge has been exhausted in removal proceedings. Accordingly,
the district court’s judgment is
AFFIRMED.

2
In addition to his assertion that Cardoso does not apply in the APA context, Nolasco
argues, without supporting authority, that Cardoso does not apply to TPS beneficiaries or to
claims against USCIS. We reiterate that Cardoso announced a principle of broad
applicability: federal courts lack jurisdiction over aliens’ challenges to the denial of their
status-adjustment applications unless and until those challenges have been exhausted in
removal proceedings. 216 F.3d at 517–18.
Nolasco also cites to a number Supreme Court decisions: McNary v. Haitian Refugee
Center, Inc., 498 U.S. 479 (1991), Reno v. American-Arab Anti-Discrimination Comm., 525
U.S. 471 (1999), Ross v. Blake, 136 S. Ct. 1850 (2016), and Pereira v. Sessions, 138 S. Ct. 2105
(2018). But none of those cases dislodges the authority of Cardoso and Petrenko-Gunter.
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