Josue Nolasco v. Stanley Crockett
978 F.3d 955
5th Cir.2020Background
- Josue Benavides Nolasco, an El Salvador national, entered the U.S. unlawfully in 1997 and was later granted Temporary Protected Status (TPS) in 2002.
- In 2014 Nolasco applied for adjustment to permanent resident status; USCIS denied the application because he had not been “inspected and admitted or paroled,” as required by 8 U.S.C. § 1255(a).
- Nolasco argued that the grant of TPS should count as an inspection/admission or parole, curing his prior unlawful entry; he brought an APA suit in federal court challenging USCIS’s legal interpretation rather than the agency’s discretionary denial.
- The district court dismissed for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B); Nolasco appealed to the Fifth Circuit.
- The Fifth Circuit held it had jurisdiction (following Melendez v. McAleenan), then reached the merits and concluded—again following Melendez—that TPS does not create a fictional lawful entry and therefore does not cure prior unlawful entry.
- Result: the Fifth Circuit vacated the district court’s jurisdictional dismissal but affirmed dismissal of the complaint with prejudice for failure to state a claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(B) bars district-court review of Nolasco’s challenge to USCIS’s legal interpretation of eligibility for adjustment of status | Nolasco: He challenges a nondiscretionary legal interpretation, so §1252(a)(2)(B) does not strip jurisdiction. | Government: §1252(a)(2)(B) removes judicial review of adjustment decisions; court lacks jurisdiction. | Court held jurisdiction exists: legal/statutory questions (pure legal tasks) are reviewable under Melendez. |
| Whether a grant of TPS constitutes being "inspected and admitted or paroled" (thus curing prior unlawful entry and allowing adjustment of status) | Nolasco: TPS operates to inspect/admit or parole him, making prior illegal entry irrelevant. | Government: TPS does not retroactively create a lawful entry; statutory text requires actual inspection/admission or parole separate from TPS. | Court held TPS does not create a legal entry; Nolasco fails to state a claim; dismissal with prejudice. |
Key Cases Cited
- Melendez v. McAleenan, 928 F.3d 425 (5th Cir. 2019) (controlling Fifth Circuit precedent holding TPS does not create a legal entry; legal challenges to statutory interpretation are reviewable)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (Supreme Court clarification of "final order of removal" referenced by panel but not relied on for decision)
- Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000) (earlier Fifth Circuit precedent discussed but not relied upon)
- Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) (circuit authority holding TPS can serve to satisfy inspection/admission/parole requirement)
- Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d 548 (6th Cir. 2013) (similar to Ramirez on TPS effect)
- Sanchez v. Sec'y United States Dep't of Homeland Sec., 967 F.3d 242 (3d Cir. 2020) (contrary circuit authority rejecting TPS-as-entry rule)