Josue Nolasco v. Stanley Crockett ( 2020 )


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  • Case: 19-30646     Document: 00515614438         Page: 1    Date Filed: 10/23/2020
    United States Court of Appeals
    for the Fifth Circuit                             United States Court of Appeals
    Fifth Circuit
    FILED
    October 23, 2020
    No. 19-30646                      Lyle W. Cayce
    Clerk
    Josue Benavides Nolasco,
    Plaintiff—Appellant,
    versus
    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
    USDC No. 2:18-CV-7101
    ON PETITION FOR PANEL REHEARING
    Before Jolly, Jones, and Engelhardt, Circuit Judges.
    E. Grady Jolly, Circuit Judge:
    The petition for panel rehearing is hereby GRANTED.
    Since the prior opinion issued, the Supreme Court decided Nasrallah
    v. Barr, 
    140 S. Ct. 1683
    (2020), which clarified the meaning of the statutory
    term “final order of removal.” Without expressing an opinion as to whether
    Nasrallah may have partially abrogated portions of Cardoso v. Reno, 216 F.3d
    Case: 19-30646      Document: 00515614438           Page: 2    Date Filed: 10/23/2020
    No. 19-30646
    512 (5th Cir. 2000), the opinion we earlier relied on, we have chosen not to
    base our decision on Cardoso. Just last year, in Melendez v. McAleenan, 
    928 F.3d 425
    (5th Cir.), cert. denied, 
    140 S. Ct. 561
    (2019), this court decided a
    case both factually and procedurally reflective of the case at bar. We find
    Melendez the guiding precedent to decide this appeal.
    Accordingly, we WITHDRAW the court’s prior opinion of May 6,
    2020, and the following opinion is substituted therefor.
    OPINION
    Josue Benavides       Nolasco seeks       review    of   USCIS’s     legal
    determination declaring him ineligible for adjustment to permanent status.
    Although he has been granted Temporary Protected Status (TPS), he had
    entered the United States illegally, which would ordinarily bar the
    adjustment he seeks. He appeals the district court’s dismissal for lack of
    jurisdiction over his claim. We reverse the district court’s holding that it
    lacked jurisdiction, but asserting our jurisdiction over his claim, hold that his
    claim has no merit. We therefore dismiss the complaint with prejudice.
    I.
    Appellant Josue Benavides Nolasco is a national and citizen of El
    Salvador. In 1997, he entered the United States unlawfully. But in 2002, the
    government granted him TPS, which means, among other things, that he is
    legally entitled to live and work in the United States until his TPS is
    withdrawn. See 8 U.S.C. § 1254a. In 2014, Nolasco sought to have his status
    adjusted to become a permanent resident. Because he had entered the
    country illegally, Nolasco’s request was denied; the government determined
    that he had not been “inspected and admitted or paroled” into the United
    States as required for the adjustment he seeks. See 8 U.S.C. § 1255(a).
    2
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    Nolasco argues that the government’s grant of TPS served to inspect
    and admit or parole him into the United States, rendering his illegal entry
    irrelevant. Indeed, this proposition is not unfounded, as it is the law in
    several other circuits. 1        Seeking to challenge the government’s legal
    interpretation—not the denial of his application itself—but unable to appeal
    within the immigration system, 2 Nolasco brought this suit in federal district
    court under several statutes, including the Administrative Procedure Act, 5
    U.S.C. §§ 701–706. The government moved to dismiss Nolasco’s claims. It
    argued that 8 U.S.C. § 1252(a)(2)(B)—a statute that removes some
    immigration decisions from the ambit of judicial review—stripped the
    district court of jurisdiction.         The district court agreed and dismissed
    Nolasco’s case under Federal Rule of Civil Procedure 12(b)(1). Nolasco has
    properly appealed.
    II.
    As mentioned above, Nolasco’s journey treads the path of another
    litigant before this court, Oscar Ernesto Melendez. Melendez v. McAleenan,
    
    928 F.3d 425
    (5th Cir. 2019). Like Nolasco, after spending time illegally
    present in the United States, Melendez applied for and received TPS.
    Id. at 426.
    Several years later, Melendez filed an application for adjustment of
    status, which was denied by the government because of a legal determination
    1
    Ramirez v. Brown, 
    852 F.3d 954
    , 961 (9th Cir. 2017); Flores v. U.S. Citizenship &
    Immigration Servs., 
    718 F.3d 548
    , 553–54 (6th Cir. 2013). But see Sanchez v. Sec'y United
    States Dep't of Homeland Sec., 
    967 F.3d 242
    , 251 (3d Cir. 2020); Serrano v. U.S. Atty. Gen.,
    
    655 F.3d 1260
    , 1265 (11th Cir. 2011) (reaching the opposite conclusion).
    2
    8 C.F.R. § 245.2(a)(5)(ii) provides that “[n]o appeal lies from the denial of an
    application” for adjustment of status, but “the applicant . . . retains the right to renew his
    or her application in [removal] proceedings.” However, Nolasco cannot be placed in
    removal proceedings as the government “shall not remove” him or others with TPS
    “during the period in which such status is in effect.” 8 U.S.C. 1254a(a)(1)(A).
    3
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    No. 19-30646
    that his time spent illegally present in the United States rendered him
    ineligible for an adjustment—again, just like Nolasco.
    Id. And analogous to
       Nolasco, Melendez filed an APA suit, challenging the legal determination of
    his ineligibility for an adjustment of status, but he did not challenge the actual
    denial of an adjustment itself.
    Id. In Melendez’s case,
    the district court dismissed his claims for lack of
    jurisdiction.    On appeal, this court reversed, holding that 8 U.S.C. §
    1252(a)(2)(B) precludes courts from reviewing only certain discretionary
    immigration decisions, but not legal determinations.
    Id. (citing Mireles- Valdez
    v. Ashcroft, 
    349 F.3d 213
    , 215–16 (5th Cir. 2003)). We said that
    nondiscretionary decisions, such as statutory interpretation and other “pure
    legal task[s],” do not involve the “review of an [adjustment of status
    application] decision on the merits[.]” Akhtar v. Gonzales, 
    450 F.3d 587
    , 592
    (5th Cir. 2006).       These nondiscretionary decisions are “distinct” and
    therefore may be reviewed by the courts.
    Id. 3
    The Melendez court went on
    to hold that Melendez challenged “a nondiscretionary decision based on the
    finding he was statutorily ineligible, making Section 1252(a)(2)(B)(i)’s
    jurisdictional bar inapplicable.” 
    Melendez, 928 F.3d at 426
    –27.
    We follow Melendez in holding that Nolasco sought review of the
    government’s legal interpretation of statutory provisions that govern TPS
    and adjustment of status. See 8 U.S.C. §§ 1254a, 1255(a). Since this is a
    3
    Although language in Ayanbadejo v. Chertoff, 
    517 F.3d 273
    (5th Cir. 2008), may
    appear unclear on whether our review distinguishes between discretionary and
    nondiscretionary decisions for purposes of jurisdiction, the distinction is preserved; the
    Ayanbadejo court simply found that one of the questions the plaintiffs presented as a legal
    determination was actually a question of fact. See
    id. at 277
    n.11 (“Although the
    Ayanbadejos argue that USCIS’s basis for refusing to adjust John’s status was a legal
    conclusion that a non-viable marriage precluded the change-in-status John requested,
    USCIS’s predicate determination of whether the Ayanbadejos had a bona fide marriage
    was a question of fact, not law . . . .”).
    4
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    “pure legal task,” it is a nondiscretionary decision that is not barred by the
    jurisdiction-stripping statute. The district court thus erred. 4 We do have
    jurisdiction to address Nolasco’s claims and proceed further to decide this
    appeal.
    III.
    Melendez continues to be our guide. In Melendez, the government had
    moved for dismissal at the district court based on lack of jurisdiction and
    failure to state a claim, each of which Melendez contested.
    Id. at 426.
    In
    ruling on these arguments, the district court acknowledged both bases for
    dismissal but only held that there was no jurisdiction, dismissing under
    Federal Rule of Civil Procedure 12(b)(1).
    Id. It did not
    reach the Rule
    12(b)(6) claim.
    Id. On appeal, the
    government and the petitioner each
    renewed their respective arguments.
    Id. at 427
    .
    
               After deciding that the district court did in fact have jurisdiction—and
    acknowledging that the “ruling by the district court was based on
    jurisdiction”—the Melendez panel noted that it was “free to uphold the . . .
    [district court’s] judgment on any basis that is supported by the record.”
    Id. at 427
    (quoting Zuspann v. Brown, 
    60 F.3d 1156
    , 1160 (5th Cir. 1995)).
    Because the Rule 12(b)(6) issue had been litigated, the court proceeded to
    decide whether Melendez had stated a claim.
    Id. Cf. Trinity Marine
    Prod.,
    Inc. v. United States, 
    812 F.3d 481
    , 486 (5th Cir. 2016) (stating that a court
    need not reverse a matter decided under Federal Rule of Civil Procedure
    12(b)(1) “where a remand would only require a new Rule 12(b)(6) label for
    the same Rule 12(b)(1) conclusion”). That analysis began by reviewing
    4
    We should note that the district court did not have the benefit of Melendez when
    it was ruling on the government’s motion to dismiss, as Melendez was not published until
    later in the same month.
    5
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    Melendez’s claims de novo. 
    Melendez, 928 F.3d at 427
    . After the panel
    accepted all well-pled facts as true and viewed all facts in the light most
    favorable to the plaintiff, the court noted that for Melendez, the only issue in
    dispute was a legal one: whether, notwithstanding his earlier time illegally
    present in the United States, TPS could serve to “inspect and admit or
    parole” him into this country, thus rendering him eligible for adjustment to
    permanent status.
    Id. Finding that the
    grant of TPS plainly did not cure his
    illegal entry according to the terms of the statute, the court held that
    “[c]onsequently, as a matter of law, Melendez failed to state a claim upon
    which relief can be granted.”
    Id. at 429.
    The decretal language confirmed
    the case’s holding, vacating the district court’s judgment that there was no
    jurisdiction and entering judgment that the complaint, seeking eligibility for
    adjustment of status, be dismissed with prejudice (as it failed to state a claim).
    Id. In short, the
    grant of TPS status did not cure his ineligibility.
    We again let Melendez guide our analysis. Here, before the district
    court, the government also moved for dismissal based on lack of jurisdiction
    and also on failure to state a claim; here, Nolasco responded to both of those
    arguments. The district court acknowledged both arguments and dismissed
    the case on jurisdictional grounds under Rule 12(b)(1). On this appeal,
    Nolasco renewed his contention that he had meritorious claims; the
    government argued, in the alternative, that the district court’s ruling should
    be upheld on Rule 12(b)(6) grounds. With the same procedural background
    in place, we make the same choice that the Melendez court made and decide
    this case on Rule 12(b)(6) grounds. The sole issue Nolasco presents for our
    review is a legal one, and Melendez clearly states that TPS does not create a
    “fictional legal entry” for those who first made their way into this country
    illegally. 
    Melendez, 928 F.3d at 427
    –29. Therefore, Nolasco fails to state a
    claim upon which relief can be granted, and his suit must be dismissed.
    6
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    IV.
    In this opinion, we have held that the result in this appeal is dictated
    by our precedent in Melendez. We have applied Melendez to determine that
    the district court did in fact have jurisdiction to hear Nolasco’s claims. We
    have further applied Melendez to hold that Nolasco has failed to state a legally
    cognizable claim. Those with TPS who first entered the United States
    unlawfully are foreclosed from applying for adjustment of status as a matter
    of law.
    The judgment of the district court concluding there was no
    jurisdiction is therefore VACATED.            We hold that the complaint be
    DISMISSED WITH PREJUDICE and REMAND for judgment to be
    entered accordingly.
    DISMISSED and REMANDED for entry of judgment.
    7
    

Document Info

Docket Number: 19-30646

Filed Date: 10/23/2020

Precedential Status: Precedential

Modified Date: 10/24/2020