ASHOK KUMAR CHEEJATI; KARTHIK RAJASHEKARAN; NISHANT MATHUR; HARAGOPAL CHAKRAVARTHY; SESHU GAVARA; ET AL. v. ANTONY BLINKEN,
No. 23-40398
United States Court of Appeals for the Fifth Circuit
April 9, 2024
Before RICHMAN, Chief Judge, and OLDHAM and RAMIREZ, Circuit Judges.
Irma Carrillo Ramirez, Circuit Judge:
Appellants are a group of lawfully admitted Indian nationals who have applied for permanent residency. They sued Secretary of State Antony Blinken, in his official capacity (“DOS“), and United States Citizenship and Immigration Services Director Ur M. Jaddоu, in her official capacity (“USCIS“), challenging their approach to distributing immigrant visas. Because subject-matter jurisdiction is lacking, we must VACATE and REMAND with instructions to dismiss.
I. BACKGROUND
Appellants are nonimmigrants1 legally present in the United States on employment-based visas chargeable to India. They have all filed Forms I-485 seeking adjustment of status to lawful permanent residents. Before an alien‘s status can be adjusted, a visa number must bе available to him. As of June 2023, shortly before this suit was filed, DOS had estimated that visa numbers were immediately available to Appellants, so Appellants had all applied for status adjustments. But visa demand in mid-2023 was higher than expected, and ultimately, visa numbers were not immediately available to Appellants. As a result, Appellants’ applications were held in abeyance until a visa number became available.
Appellants challenge the delay in adjudicating their I-485 applications. They maintain that DOS‘s and USCIS‘s policies of deferring adjudication of the applications until a visa number becomes available violate the clear language of the statute governing adjustment of status for nonimmigrants,
II. STANDARD OF REVIEW
We review the denial of a preliminary injunction for abuse of discretion, but any underlying legal principles are reviewed de novo. Speaks v. Kruse, 445 F.3d 396, 399 (5th Cir. 2006). Before reaching the merits of an appeal, however, “we must first assure ourselves of our own federal subject matter jurisdiction.” La. Real Est. Appraisers Bd. v. FTC, 917 F.3d 389, 391 (5th Cir. 2019) (per curiam) (internal quotations omitted) (quoting Keyes v. Gunn, 890 F.3d 232, 235 n.4 (5th Cir. 2018)); Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (Federal courts have an “independent obligation to determine whether subject-matter jurisdiction exists[.]“). Issues of subject-matter jurisdiction are reviewed de novo. Borden v. Allstate Ins. Co., 589 F.3d 168, 170 (5th Cir. 2009).
III. THE IMMIGRATION AND NATIONALITY ACT
The Immigration and Nationality Act (INA) governs visa allocation for foreign nationals wanting to enter the United States. In the INA, Congress conferred upon the Attorney General3 the discretion to adjust the status4 of an alien to lawful permanent resident:
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner 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 (1) the alien makes an application for such adjustment, (2) the alien is еligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
The INA also sets the number of visas that can be allocated during each fiscal year, determined based on the type of visa and the country of origin of the applicant. Id.
DOS communicates these estimates to the public on the Visa Bulletin, which is published monthly on the DOS website, by
Occasiоnally, DOS will overestimate the number of available visas, or actual demand will outpace the projected demand upon which DOS‘s estimates were based. When this occurs, to avoid allocating too many visas, DOS will change the relevant Final Action Date to an earlier date to reflect the fact that fewer applicants will have a visa number avаilable to them.6 This process is called retrogression. When a Final Action Date retrogresses, it is possible that an individual applicant could have been eligible to apply for adjustment of status on one day, but ineligible the next. Typically, when the new fiscal year begins in October, more visa numbers will become available, and DOS will undo the retrogression, often resetting the relevant Final Action Date to the latest date previously listed. And when retrogression renders previously eligible applicants ineligible for approval, DOS and USCIS each have a policy of holding the application in abeyance until a visa number becomes available. The parties refer to these policies as the “retrogression hold policies.”
Relevant to this appeal, the June 2023 Visa Bulletin listed the Final Action Date for determining visa number availability for Appellants as June 15, 2012.7 But the following month, the Final Action Date retrogressed to January 1, 2009.8 Visa numbers were available to all Appellants as of June 2023 because they all have Final Action Dates before June 15, 2012. But the July 2023 retrogression rendered them ineligible for adjustment of status. The March 2024 Visa Bulletin lists the relevant Final Action Date as July 1, 2012.9
Once an application for adjustment of status is approved, the Attorney General is statutorily required to “record the alien‘s lawful admission for permanent residence as of the date” of the approval, and DOS must “reduce by one the number of the
IV. JURISDICTION
DOS and USCIS contend that federal courts do not have jurisdiction to address Appellants’ challenge because the jurisdiction-stripping provisions in the INA preclude it.10
The INA strips federal courts of jurisdiction to address many challenges brought in the context of immigration proceedings. Relevant here,
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security[.]
As discussed, the INA provides that “[t]he status of an alien who was admitted or paroled into the United States 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 meets the three criteria listed in the statute.
In noting that § 1252(a)(2)(B) likely strips federal courts of jurisdiction to hear Appellants’ suit, the district court cited to the Supreme Court‘s decision in Patel v. Garland, 596 U.S. 328, 338 (2022), which endorsed an expansivе reading of § 1252(a)(2)(B). There, the petitioner‘s application for adjustment of status was denied because he had previously misrepresented his citizenship when applying for a Georgia driver‘s license and was therefore ineligible for status adjustment. Id. at 334. He
Also useful is our vacated decision in Bian v. Clinton, 605 F.3d 249 (5th Cir. 2010). The facts of Bian are virtually identical to those presented here: the petitioner was lawfully present in the United States on an employment-based visa and filed an I-485 application to adjust her status. Id. at 251. Because there were no visa numbers available to applicants in her visa category, the adjudication of her application was delayed. Id. Frustrated by the delay, the petitioner filed suit “seeking to compel [USCIS] to adjudicate her I-485 application for adjustment of immigration status.” Id.
Bian held that federal courts lacked jurisdiction to hear the case because § 1252(a)(2)(B)(ii) precluded review of “the USCIS‘s pace of adjudication.” Id. at 252–53. The court concluded that the word “action” in § 1252(a)(2)(B)(ii) would be superfluous if the provision stripped the courts of jurisdiction to review only final, discrete decisions. Id. at 253-54 (“If Congress had intended for only USCIS‘s ultimate decision to grant or dеny an application to be discretionary—as distinguished from its interim decisions made during the adjudicative process—then the word ‘action’ would be superfluous.“). Therefore, the conduct that the petitioner complained of in Bian—the same conduct to which Appellants object here—was an “action” undertaken by the Attorney General for purposes оf § 1252(a)(2)(B)(ii).
Moreover, as Bian noted, § 1252(a)(2)(B)(ii) strips federal courts of jurisdiction to review any discretionary decision or action rendered by the Attorney General. Section 1255(a) expressly leaves not only the ultimate decision to adjust an applicant‘s immigration status but also actions taken in the course of the decision-making process—including the pace at which that process is undertaken—to the discretion of the Attоrney General: applications for adjustment of status are adjudicated “in [the Attorney General‘s] discretion and under such regulations as he may prescribe.”
Exercising his § 1255 authority, the Attorney General promulgated regulations to facilitate the adjustment of status decision-making process, including the regulations
Our reading of § 1252(a)(2)(B) also comports with that of the only other circuit to address the issue. The Eighth Circuit recently concluded that it lacked subject-matter jurisdiction to hear a similar challenge. Thigulla, 94 F.4th at 777–78. In Thigulla, the plaintiffs sought to adjust their status from lawful nonimmigrants present in the United States on temporary work visas to lawful permanent residents. Id. at 772. The plaintiffs’ priority dates retrogressed, and USCIS delayed adjudication of their applications as a result. Id. at 772–73. The plaintiffs sued USCIS under the APA, seeking to compel it to promptly render a decision with respect to their applications. Id. at 773. Noting that only “clear and convinсing” evidence of Congress‘s intent can overcome the presumption in favor of judicial review of agency decisions, the court considered the text of §§ 1252(a)(2)(B) and 1255. Id. at 773-75. The court concluded that “[t]he text of § 1252(a)(2)(B)(ii) and § 1255(a) is clear and convincing evidence that Congress intended to preclude judicial review of the Attorney General‘s discretionary decisions about the status adjustment process under § 1255(a), like the [retrogression hold policies].” Id. at 776. We find the Eighth Circuit‘s analysis persuasive and agree with its conclusion.
Appellants argue that § 1252(a)(2)(B)(ii) does not apply here because the statute‘s title indicates that it was intended to apply only to decisions related to removal. They cite to the Supreme Court‘s dеcision in INS v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991), for the proposition that the title of a statute can aid a court in resolving an ambiguity in the statutory language. But there is no ambiguity to be resolved here: § 1252(a)(2)(B) expressly states that it applies “regardless of whether the judgment, decision, or action is made in removal proceedings[.]”
Abuzeid v. Mayorkas, 62 F.4th 578, 586 (D.C. Cir. 2023) (no jurisdiction to review denial of petitioner‘s application for adjustment of status from student visa holder to lawful permanent resident); Juras v. Garland, 21 F.4th 53, 60 (2d Cir. 2021) (no jurisdiction to review withdrawal of application for admission to the United States); Thigulla, 94 F.4th at 777. And § 1255 applies in both removal proceedings and proceedings unrelated to removal;
We have previously noted “the general expectation that federal courts address subject-matter jurisdiction at the outset in the ‘mine run of cases[.]‘” Sangha v. Navig8 ShipManagement Priv. Ltd., 882 F.3d 96, 100 (5th Cir. 2018) (quoting Sinochem Int‘l Co. v. Malay. Int‘l Shipping Corp., 549 U.S. 422, 436 (2007)). Because § 1252(a)(2)(B)(ii) precludes federal courts from hearing challenges like this one, we must vacate the order denying the motion for preliminary injunction and remand with instructions to dismiss this case for lack of subject-matter jurisdiction.
V.
For these reasons, we hold that § 1252(a)(2)(B)(ii) prevents us from hearing a challenge to DOS‘s and USCIS‘s retrogression hold policies, as they are actions undertaken by the Attorney General and expressly left to his discretion under § 1255(a). The district court‘s decision is VACATED, and the case is REMANDED with instructions to dismiss for lack of subject-matter jurisdiction.