Sandeep Thigulla; Sarvani Thigulla v. Ur Jaddou, Director, U.S. Citizenship and Immigration Services
No. 22-3066
United States Court of Appeals For the Eighth Circuit
March 5, 2024
Submitted: November 16, 2023
Before COLLOTON, BENTON, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
Sandeep and Sarvani Thigulla—lawful nonimmigrant workers with temporary work authorization—seek to become lawful permanent residents (LPRs) (get a “green card“). As the last step to become LPRs, the Thigullas sought approval of their Form I-485 applications with the U.S. Citizenship and Immigration Services (USCIS). The Department of State signaled that adjudication of their applications was imminent in September 2022. However, in October 2022, the Department of State decreased the number of applications it would adjudicate at that time. The Thigullas sought a temporary restraining order against the Director of USCIS, compelling the prompt adjudication of their applications under the Administrative Procedure Act. The Government moved to dismiss for a lack of subject-matter jurisdiction under
I.
The Thigullas are citizens and nationals of India. Sandeep Thigulla has been in the United States since 2010. They applied for adjustment of status, trying to change their status from lawful nonimmigrant workers on a series of short-term work authorizations, to LPRs with green cards. Foreign nationals seeking an LPR visa must generally follow a three-step process: by obtaining (1) a labor certification by the Department of Labor; (2) an approved I-140 immigrant petition from USCIS; and (3) an approved Form I-485, Application to Register Permanent Residence or Adjust Status from USCIS. See Mantena v. Johnson, 809 F.3d 721, 724-25 (2d Cir. 2015) (describing the three-step process);
The final step, due to the limited number of available LPR visas, cannot take place until the proper category of visa is available for the applicant. See
The Thigullas’ priority date is January 17, 2014. In September 2022, the Department of State, in its monthly visa bulletin, listed the Thigullas’ desired class of visa (chargeable to India) as current or immediately available for applicants with a priority date before December 1, 2014. See Department of State, The Visa Bulletin for September 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-september-2022.html (last visited Feb. 21, 2024). However, in the October 2022 bulletin, the Department of State “retrogressed” that priority date to April 1, 2012. See Department of State, The Visa Bulletin for October 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-october-2022.html (last visited Feb. 21, 2024).2 By changing the priority date, USCIS delayed adjudicating
The Thigullas sued to compel USCIS to promptly adjudicate their status adjustment applications, arguing that the decision to delay adjudicating them, pursuant to the Adjudication Hold Policy, violates congressional intent. The Thigullas moved for a temporary restraining order, claiming irreparable harm without USCIS‘s approval. The Government moved to dismiss for a lack of subject-matter jurisdiction. The district court denied a temporary restraining order citing the lack of evidence of irreparable harm and a low likelihood of success on the merits. The district court also denied the Government‘s motion to dismiss as moot without addressing the court‘s subject-matter jurisdiction. The Thigullas appeal the denial of a temporary restraining order.
II.
This court first addresses the issue of subject-matter jurisdiction. “[A] federal court always has jurisdiction to determine its own jurisdiction.” United States v. Harcevic, 999 F.3d 1172, 1178 (8th Cir. 2021), quoting United States v. Ruiz, 536 U.S. 622, 628 (2002).3
“In this context, the term ‘jurisdiction’ refers to” this court‘s subject-matter jurisdiction—“the courts’ statutory or constitutional power to adjudicate the case.” Harcevic, 999 F.3d at 1178, quoting United States v. Cotton, 535 U.S. 625, 630 (2002) (emphasis in original). Subject-matter jurisdiction, because “it involves a court‘s power to hear a case, can never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court.” Cotton, 535 U.S. at 630, citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908). “Unlike most arguments, challenges to subject-matter jurisdiction may be raised by the defendant ‘at any point in the litigation,’ and courts must consider them sua sponte.” Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019), quoting Gonzalez v. Thaler, 565 U.S. 134, 141 (2012).
The requirement that jurisdiction be established as a threshold matter “‘spring[s] from the nature and limits of the judicial power of the United States’ and is ‘inflexible and without exception.‘” Patchak v. Zinke, 583 U.S. 244, 254 (2018) (plurality opinion), quoting Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95 (1998), quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884). See Patchak, 583 U.S. at 254 (plurality opinion), quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514-15 (1869) (“Because jurisdiction is the ‘power to declare the law’ in the first place, ‘judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.‘“).
Congress, in
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, other than the granting of relief under section 1158(a) of this title.
Unlike some arguments that must be raised by the parties at certain times, “[j]urisdictional bars, however, ‘may be raised at any time’ and courts have a duty to consider them sua sponte.” Wilkins v. United States, 598 U.S. 152, 157 (2023), citing Henderson v. Shinseki, 562 U.S. 428, 434 (2011). See Patel v. Garland, 596 U.S. 328, 338-46 (2022) (repeatedly categorizing
III.
The Thigullas seek review under the Administrative Procedure Act, as a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
“The plaintiff bears the burden of establishing subject matter jurisdiction.” Hilger v. United States, 87 F.4th 897, 899 (8th Cir. 2023), citing Herden v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013) (en banc).
The Thigullas argue the Adjudication Hold Policy goes against congressional intent of how to administer the green card process. “Congressional intent is discerned primarily from the statutory text.” CTS Corp. v. Waldburger, 573 U.S. 1, 12 (2014). Congress ordained the green card process in
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 eligible 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.
First, the USCIS decided to delay adjudicating the Thigullas’ status adjustment applications. Section 1252(a)(2)(B)(i) bars a court‘s jurisdiction to review a judgment granting a status adjustment application. See Patel, 596 U.S. at 338 (“Section 1252(a)(2)(B)(i) . . . prohibits review of any judgment regarding the granting of relief under § 1255“). In the same way,
Second, interpreting
By stating the Attorney General, in his “discretion,” “may” adjust status and “may” prescribe regulations, Congress, in Section 1255(a), set out the discretionary authority. See Kucana, 558 U.S. at 247 n.13, quoting Zadvydas v. Davis, 533 U.S. 678, 697 (2001) (“‘may’ suggests discretion“). In addition, the two uses of “may” bracket the word “discretion.” See Yates v. United States, 574 U.S. 528, 543 (2015) (“we rely on the principle of noscitur a sociis—a word is known by the company it keeps—to ‘avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.‘“). Based on the text, congressional intent is clear: the decision to delay adjudicating the Thigullas’ status adjustment applications, based on the creation of the Adjudication Hold Policy, was within the Attorney General‘s discretionary authority.
The text of
Beyond the text, the primary source for congressional intent, the Thigullas offer extratextual sources to undermine the clear textual grant of discretionary authority for the Adjudication Hold Policy.
The Thigullas maintain, by looking to
Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien‘s lawful admission for permanent residence as of the [approval] date ..., and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under [8 U.S.C. §§ 1152 and 1153] within the class to which the alien is chargeable for the fiscal year then current.
The statute is agnostic as to why a visa must be available when adjustment of status is approved—whether because the visa number must be allocated at the
time of the application or because the application cannot be approved until a visa number is available. By expressing no preference and authorizing the Attorney General to issue “such regulations as he may prescribe,” [] § 1255(a), Congress plainly left the decision in the government‘s hands.
Babaria, 87 F.4th at 977-78; see Morton v. Ruiz, 415 U.S. 199, 231 (1974) (“The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.“).
Citing legislative history, the Thigullas argue
The Thigullas’ arguments “do not overcome Congress‘s broad prohibition of judicial review in
True,
Because Congress has barred judicial review in this case, this court must dismiss for a lack of subject-matter jurisdiction. See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449-50 (1850) (holding that “Courts created by statute can have no jurisdiction but such as the statute confers” and if no statute confers jurisdiction, the court must dismiss); Patchak, 583 U.S. at 252-54 (plurality opinion) (discussing the limits of Congressional ability to “‘chang[e] the law’ for the purpose of Article III” by stripping federal courts’ jurisdiction) (“Congress generally does not infringe the judicial power when it strips jurisdiction because, with limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power.“); Whole Woman‘s Health v. Jackson, 595 U.S. 30, 40 (2021) (“Nor does Article III confer on federal judges some amorphous power to supervise the operations of government . . . .“) (citations omitted); Hayburn‘s Case, 2 U.S. (2 Dall.) 409 (1792) (establishing the principle that the duties of Article III are limited to exercising the judicial power).
* * * * * * *
This case is dismissed for a lack of subject-matter jurisdiction and remanded to the district court for proceedings consistent with this opinion.