Arjun Dhakal v. Jefferson Sessions III , 895 F.3d 532 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3377
ARJUN DHAKAL,
Plaintiff-Appellant,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17-cv-00010-jdp — James D. Peterson, Chief Judge.
____________________
ARGUED MAY 22, 2018 — DECIDED JULY 13, 2018
____________________
Before FLAUM and RIPPLE, Circuit Judges, and GETTLEMAN,
District Judge. ∗
RIPPLE, Circuit Judge. Arjun Dhakal, a native and citizen of
Nepal, brought this action against the Attorney General and
other executive branch defendants under the Administrative
∗ The Honorable Robert W. Gettleman of the Northern District of Illinois,
sitting by designation.
2 No. 17-3377
Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and the Declar-
atory Judgment Act, 28 U.S.C. §§ 2201–2202. He asked the dis-
trict court to review the decision of the Director of the Chicago
Asylum Office, denying his application for asylum. The de-
fendants moved to dismiss for lack of jurisdiction. They con-
tended that Mr. Dhakal had not exhausted his administrative
remedies and that the agency action is not final because the
immigration courts have not yet passed upon his claim in re-
moval proceedings. Mr. Dhakal remains in lawful status in
the United States; he has not been placed in removal proceed-
ings and is therefore unable to access the ordinary channel for
further intra-agency review of his asylum application. In his
view, because he has exhausted all administrative remedies
presently available to him, his claim is ripe, and he can seek
review in the district court.
The district court concluded that it lacked jurisdiction over
his claim. Although we conclude that there is no jurisdictional
bar, we agree with the Government that the decision Mr. Dha-
kal challenges is not a final agency action and, therefore, he is
not entitled to relief under the APA. The statutory scheme for
adjudication of asylum claims by the agency must be allowed
to take its course. We therefore affirm the district court’s judg-
ment dismissing the case, but modify it to reflect that it is on
the merits.
I
A.
According to his asylum application, Mr. Dhakal and his
family were members of the Nepali Congress, a political party
No. 17-3377 3
that he describes as supporting nationalism, democracy, so-
cialism, and nonviolence. From the mid-1990s through late
2006, the Maoist party emerged and began targeting its oppo-
sition, including the Nepali Congress. In 2006, the parties
signed a Comprehensive Peace Accord, but, without a mech-
anism for enforcement, the accord did not deter the Maoists.
They created a Young Communist League and began to take
more aggressive actions. Mr. Dhakal continued his opposition
work, including working with the United States Agency for
International Development and other international organiza-
tions for peace.
In 2012, he received a letter from the Maoists on official
letterhead. The letter instructed him to cease his activities. A
few weeks later, four men stopped him as he was riding home
on his motorbike. They verbally abused him and told him that
the Maoist party had sent them to break his leg. They hit him
with a bamboo cane and smashed his motorbike; they also
told him that if he did not cease his opposition work, “next
1
time, he will be finished.” A forest ranger discovered
Mr. Dhakal and transported him to the hospital. A local news-
paper reported the attack. Despite this incident, Mr. Dhakal
continued his activities, and in April 2013, he received an-
other letter threatening him and his family.
In May 2013, the University of Rhode Island invited
Mr. Dhakal to participate in a course in nonviolent conflict
1 R.1-12 at 3.
4 No. 17-3377
resolution because of his “impressive record of accomplish-
2
ments and activism.” He accepted the invitation, which in-
cluded a scholarship and travel expenses, and traveled to the
United States in June 2013.
After he left Nepal, Maoists went to his home and threat-
ened his wife, who subsequently fled to her parents’ home
with their children. Mr. Dhakal determined that he could not
return to Nepal and therefore applied for asylum in the
United States in August 2013, two months after his entry.
In April 2015, while Mr. Dhakal’s asylum application re-
mained pending, Nepal suffered a 7.8 magnitude earthquake.
Based on the resulting conditions, the Secretary of Homeland
Security designated Nepal for Temporary Protected Status
3
(“TPS”) for eighteen months. Under that designation, eligible
nationals of Nepal residing in the United States as of that date
would not be removed from the United States and could re-
ceive employment authorization for the duration of the TPS
designation. Mr. Dhakal applied for, and received, TPS. The
Department of Homeland Security twice extended the desig-
nation, and Mr. Dhakal has remained in lawful status since
his original application for TPS was granted. He eventually
moved to Brookfield, Wisconsin, where he now manages a
gas station.
In June 2016, after Mr. Dhakal received TPS, the asylum
office of United States Citizenship and Immigration Services
2 R.1-11.
3 See 8 U.S.C. § 1254a(b); Designation of Nepal for Temporary Protected
Status, 80 Fed. Reg. 36,346 (June 24, 2015).
No. 17-3377 5
interviewed him in connection with his application for asy-
lum. In August, the Director of the Chicago Asylum Office is-
4
sued a Notice of Intent to Deny the application. Principally,
the asylum officer found that Mr. Dhakal was not credible
based on internal inconsistencies and a lack of detail in his
responses. The officer also concluded that the two threatening
letters and one beating did not rise to the level of past perse-
cution and that Mr. Dhakal had not shown a reasonable pos-
sibility of future persecution. Mr. Dhakal submitted a rebut-
tal, but DHS was not persuaded. In September 2016, the Di-
rector issued a final denial. The final denial letter informed
Mr. Dhakal that “[b]ecause you are maintaining valid … tem-
porary protected (TPS) status, your asylum application will
not be referred to an immigration judge for adjudication in
removal proceedings before the U.S. Department of Justice,
5
Executive Office for Immigration Review.”
B.
In January 2017, Mr. Dhakal brought this action in the
United States District Court for the Western District of Wis-
consin, seeking a declaratory judgment that the Director’s de-
nial of his asylum claim was contrary to law. The Government
moved to dismiss for lack of subject matter jurisdiction and
for failure to state a claim, contending that Mr. Dhakal could
not proceed in federal court without first exhausting his ad-
ministrative remedies. After briefing by the parties, the dis-
trict court granted the Government’s motion.
4 R.1-4.
5 R.1-3 at 2.
6 No. 17-3377
In a brief opinion, the court held that Mr. Dhakal’s suit
was barred by Kashani v. Nelson, 793 F.2d 818 (7th Cir. 1986).
There, we dismissed a claim brought by an alien who also
challenged an initial denial of his asylum application. We
held that he was required to pursue administrative remedies.
The district court acknowledged that Mr. Dhakal had no fur-
ther remedies available to him at the time of his action be-
cause the Department of Homeland Security had not placed
him in removal proceedings and those proceedings were the
sole means within the executive branch for review of an ad-
verse asylum decision. The court was sympathetic to
Mr. Dhakal’s circumstances and further noted that a later
case, Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002), could be
read to undermine Kashani’s holding. It nevertheless con-
cluded that Kashani still appeared to govern. Mr. Dhakal un-
successfully moved for reconsideration and now appeals.
Subsequent to the filing of briefs in the appeal, the current
Secretary of Homeland Security announced the end of TPS for
6
citizens of Nepal, effective June 24, 2019.
6 See Dep’t of Homeland Security, Secretary Kirstjen M. Nielsen Announce-
ment on Temporary Protected Status for Nepal (Apr. 26, 2018), https://www.
dhs.gov/news/2018/04/26/secretary-kirstjen-m-nielsen-announcement-
temporary-protected-status-nepal.
The Government brought the end of TPS for Nepal to our attention in
a 28(j) letter. It stated:
This development regarding Mr. Dhakal’s TPS does not
substantially alter the arguments and issues before this Court.
Mr. Dhakal’s suit is still premature given the other adminis-
trative remedies he may pursue. As was true in Massignani v.
No. 17-3377 7
II
DISCUSSION
We review de novo the district court’s order dismissing
this case for lack of jurisdiction. Sapperstein v. Hager, 188 F.3d
852, 855 (7th Cir. 1999). We “may affirm the district court’s
dismissal on any ground supported by the record, even if dif-
ferent from the grounds relied upon by the district court.”
Slaney v. The Int’l Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th
Cir. 2001). Before we consider the applicability of the APA
and the narrow question now before the court, we pause to
place the issue in its proper statutory context.
A.
Mr. Dhakal’s case implicates two separate legislative pro-
tections in our Nation’s immigration laws. Each one protects
a separate group of vulnerable aliens from involuntary return
to their country of nationality. We begin with a description of
each of these forms of protection and the processes by which
they are obtained.
The first is asylum, which provides a right to remain in the
United States to certain individuals who meet the definition
INS, 438 F.2d 1276 (7th Cir. 1971) (per curiam), Kashani v. Nel-
son, 793 F.2d 818 (7th Cir. 1986), and McBrearty v. Perryman,
212 F.3d 985 (7th Cir. 2000), Mr. Dhakal can still obtain the
relief he seeks—asylum—during whatever removal proceed-
ings may be brought against him after his TPS expires.
App. R. 39 at 2.
8 No. 17-3377
of a refugee. 8 U.S.C. § 1158(b)(1)(A). That definition, bor-
rowed from international law, includes, generally, a person
“who is unable or unwilling to return to, and is unable or un-
willing to avail himself or herself of the protection of, [his]
country [of nationality] because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or polit-
ical opinion.” Id. § 1101(a)(42)(A). A person physically pre-
sent in the United States, and not in removal proceedings,
may apply affirmatively for asylum to the Department of
Homeland Security, and the Department’s Asylum Office will
have initial jurisdiction over the application. 8 C.F.R.
§ 208.2(a). If the officer determines that the alien has carried
the burden of proof to establish eligibility for asylum and that
he merits a favorable exercise of discretion, the officer may
grant the application. Id. § 208.14(b). If the officer does not
grant asylum, the officer’s next step depends on whether the
alien is presently removable from the United States. If the al-
ien is inadmissible or deportable, the officer “shall refer the
application to an immigration judge … for adjudication in re-
moval proceedings.” Id. § 208.14(c)(1). However, if the alien is
“maintaining valid immigrant, nonimmigrant, or Temporary
Protected Status at the time the application is decided, the
asylum officer shall deny the application for asylum” without
taking further action to seek the removal of the unsuccessful
applicant. Id. § 208.14(c)(2).
Once in removal proceedings, the application for asylum
will be adjudicated by the immigration judge, now as a de-
fense to removal. See id. § 208.2(b). An unsuccessful applicant
can appeal to the Board of Immigration Appeals, id.
§ 1003.38(a), and there are various opportunities to request re-
opening or reconsideration before the immigration judge and
No. 17-3377 9
the Board, id. §§ 1003.23 (immigration judge), 1003.2 (Board).
If the agency determines, after the conclusion of removal pro-
ceedings, that the alien’s application for asylum will not be
granted, the alien may petition for review of the Board’s deci-
sion in the appropriate court of appeals. 8 U.S.C. § 1252(a)(5).
A grant of asylum at either the affirmative or defensive
stage is for an indefinite period. 8 C.F.R. § 208.14(e). An asylee
may petition for his spouse and children to obtain similar re-
lief. Id. § 208.21. Moreover, asylum status opens a pathway to
legal permanent residency and eventually to citizenship. Id.
§ 209.2.
The other form of protection relevant to the present appeal
is TPS. TPS protects nationals of countries that are in a present
state of armed conflict or that are experiencing a disruption in
living conditions as a result of a natural or environmental dis-
aster. 8 U.S.C. § 1254a(b). When the Department of Homeland
Security determines that such an emergency has occurred in
a foreign country, it may designate that country for TPS. Id.
The initial designation of TPS is valid for between six and
eighteen months, as determined by the Department, and ex-
tensions may be authorized for additional six-to-eighteen-
month periods. Id. § 1254a(b)(2), (b)(3)(C). Unlike asylum,
which requires the alien to make a highly personalized show-
ing of a likelihood of danger upon return, TPS is premised on
the widespread nature of the emergency situation in the for-
eign country, and therefore is available to virtually all of its
7
nationals in the United States on the date of the designation.
7The statute includes narrow grounds of ineligibility for aliens convicted
of a felony or two or more misdemeanors committed in the United States,
10 No. 17-3377
TPS protects its recipients from removal only while the
designation is valid; it affords no pathway to family reunifi-
cation, permanent residency, or citizenship. Furthermore, the
agency views aliens in TPS as remaining subject, as a general
matter, to removal proceedings. Matter of Sosa Ventura, 25 I. &
N. Dec. 391, 393 (BIA 2010) (holding that an alien in TPS “is
protected from execution of a removal order during the time
her TPS status is valid, but she remains removable based on
8
the charge of inadmissibility in the Notice to Appear”). An
alien may apply for TPS affirmatively, and, if unsuccessful,
may renew his request in removal proceedings. 8 U.S.C.
§ 1254a(b)(5); Matter of Lopez-Aldana, 25 I. & N. Dec. 49, 51
(BIA 2009).
or for aliens who present other security risks. See 8 U.S.C. § 1254a(c)(2)(B);
see also id. § 1158(b)(2)(A).
8 In Matter of Sosa Ventura, 25 I. & N. Dec. 391 (BIA 2010), the Board con-
sidered the case of an alien who was in removal proceedings at the time
that the agency granted her application for TPS. The Board held that the
immigration judge’s termination of removal proceedings on the basis of a
grant of TPS was improper. The preferred course for such an alien against
whom removal proceedings already had been commenced, the Board
held, was either to close administratively proceedings on the agreement
of the parties, or, if the parties do not agree, to allow the proceedings to
reach a conclusion as to the alien’s admissibility or removability, although
any resulting “removal order could not be executed during the period in
which the [alien’s] TPS status is valid.” Id. at 396.
The Board’s decision in Matter of Sosa Ventura predated the recent de-
cision by the Attorney General that immigration judges generally lack the
power to close administratively removal proceedings. See Matter of Cas-
tro-Tum, 27 I. & N. Dec. 271, 272 (A.G. 2018). This case presents us with no
occasion to comment on the merits of Matter of Castro-Tum.
No. 17-3377 11
With this understanding of the two separate protective
mechanisms of immigration law involved in Mr. Dhakal’s
case, we now proceed to his claim that the district court may
review the administrative denial of his asylum claim.
B.
The most common route for federal court review of immi-
gration decisions is not under the APA, but on petition for re-
view of a final order of removal in the appropriate court of
appeals. See 8 U.S.C. § 1252(a)(5) (“[A] petition for review filed
with an appropriate court of appeals in accordance with this
section shall be the sole and exclusive means for judicial re-
view of an order of removal entered or issued under any pro-
vision of this chapter … .”); Ardestani v. INS, 502 U.S. 129, 133
(1991) (“Congress intended the provisions of the Immigration
and Nationality Act of 1952 (INA), 66 Stat. 163, as amended,
8 U.S.C. § 1101 et seq., to supplant the APA in immigration
proceedings.”). Mr. Dhakal is not subject to a final order of
removal and therefore cannot avail himself of the ordinary
process for obtaining federal court review set forth in the im-
migration statute. He therefore attempts to proceed under the
APA, which provides in relevant part: “A person suffering le-
gal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.
The district court dismissed the action under Federal Rule
of Civil Procedure 12(b)(1), finding that it lacked subject mat-
ter jurisdiction over the claim. We disagree. Although the
APA is not an independent grant of jurisdiction, Califano v.
Sanders, 430 U.S. 99, 105 (1977), where federal jurisdiction is
12 No. 17-3377
not precluded by another statute, general federal question ju-
risdiction exists under 28 U.S.C. § 1331. See id. at 105, 109. The
Government has not argued to us that any statute precludes
jurisdiction over this claim, and neither do we so conclude.
Accord Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 494 (6th
Cir. 2014) (finding federal question jurisdiction over an APA
claim regarding administrative denials of immigration bene-
9
fits).
Because the district court had jurisdiction to consider the
claim, we proceed to the alternative grounds for dismissal as-
serted by the Government.
9 The district court’s resolution of the case was based on its reading of
several of our cases that had required exhaustion of administrative reme-
dies for similar claims and that appeared to treat exhaustion as a jurisdic-
tional requirement. See, e.g., Kashani v. Nelson, 793 F.3d 818, 822 (7th Cir.
1986). We note that these cases predated the Supreme Court’s recent ef-
forts “to ‘bring some discipline’ to the use of the term ‘jurisdictional.’”
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (quoting Henderson ex rel. Hen-
derson v. Shinseki, 562 U.S. 428, 435 (2011)). Consistent with that instruc-
tion, we have been more careful “to distinguish between the court’s power
to adjudicate the [matter] and the court’s authority to grant relief.” Ahmed
v. Dep’t of Homeland Sec., 328 F.3d 383, 386 (7th Cir. 2003). Applying that
practice here, we agree with our colleagues on the Sixth Circuit that
“[b]ecause the APA is not a jurisdiction-conferring statute, [the] elements
of a claim under the APA,” including exhaustion, “are not jurisdictional.”
Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 424 (6th Cir. 2016)
(internal quotation marks omitted) (second alteration in original). Conse-
quently, we need not address exhaustion. This case is better analyzed un-
der the related but “conceptually distinct” concept of finality. See Darby v.
Cisneros, 509 U.S. 137, 144 (1993); see also infra II.C.
No. 17-3377 13
C.
The Government contends that Mr. Dhakal’s case should
be dismissed because his challenge is to a nonfinal agency de-
cision and therefore is not reviewable under the APA.
“Where, as here, the actions of the agency are not made re-
viewable by a specific statute, the APA allows judicial review
of the actions by federal agencies only over ‘final agency ac-
tion for which there is no other adequate remedy in a court.’”
Home Builders Ass'n of Greater Chi. v. U.S. Army Corps of Eng’rs,
335 F.3d 607, 614 (7th Cir. 2003) (quoting 5 U.S.C. § 704; Abbs
v. Sullivan, 963 F.2d 918, 925–26 (7th Cir. 1992)).
Finality is, therefore, a necessary precondition to our abil-
ity to review agency action under the APA.
As a general matter, two conditions must be sat-
isfied for agency action to be ‘final’: First, the ac-
tion must mark the consummation of the
agency’s decisionmaking process—it must not
be of a merely tentative or interlocutory nature.
And second, the action must be one by which
rights or obligations have been determined, or
from which legal consequences will flow.
Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted)
(internal quotation marks omitted). Courts have interpreted
the finality requirement of the APA in a “flexible” and “prag-
matic way.” Abbott Labs. v. Gardner, 387 U.S. 136, 149, 150
(1967), abrogated in part on other grounds by Califano, 430 U.S. at
105. “An agency action is not final if it is only ‘the ruling of a
subordinate official,’ or ‘tentative.’ The core question is
whether the agency has completed its decisionmaking pro-
cess, and whether the result of that process is one that will
14 No. 17-3377
directly affect the parties.” Franklin v. Massachusetts, 505 U.S.
788, 797 (1992) (citation omitted) (quoting Abbott Labs., 387
U.S. at 149).
We begin with the first question: whether the decision of
the Director of the Chicago Asylum Office marks the consum-
mation of the agency’s decisionmaking process. We conclude
that it does not. Kashani persuasively analyzed the statutory
and regulatory scheme for administrative review of asylum
claims and concluded that the executive branch process for
review of asylum claims is carefully crafted and detailed. See
generally Kashani v. Nelson, 793 F.2d 818 (7th Cir. 1986). Alt-
hough, as Mr. Dhakal notes, there have been significant struc-
tural changes to the agencies involved and to the process, the
basic thrust of review of asylum claims remains the same.
Congress created a “systematic scheme” for processing asy-
lum claims that was motivated by “a desire to revise and reg-
ularize the procedures governing the admission of refugees
… [and] to eliminate the piecemeal approach.” Id. at 825 (sec-
ond alteration in original) (emphasis removed) (quoting INS
v. Stevic, 467 U.S. 407, 425 (1984)).
An alien need not pursue an affirmative asylum process,
as Mr. Dhakal did. Once the Department seeks removal and
asylum is asserted as a defense, the immigration court “devel-
ops the more extensive factual record” for review by the
Board and, where appropriate, our ultimate review. Id. at 826.
The process recognizes that immigration judges and the
Board possess expertise in these matters and thus “should be
given the first chance,” before the federal courts, “to apply
that expertise.” Id. (quoting McKart v. United States, 395 U.S.
185, 194 (1969)). Moreover, if Mr. Dhakal is denied asylum at
the conclusion of this process by the immigration courts, only the
No. 17-3377 15
decision of the Board, which speaks with final authority for
the executive branch, forms the basis for our review. The Di-
rector’s decision is, in that respect, “more like a tentative rec-
ommendation than a final and binding determination,” or
“the ruling of a subordinate official” when viewed in light of
the intended, complete administrative process. Franklin, 505
U.S. at 798 (quoting Abbott Labs., 387 U.S. at 151).
We conclude that the executive branch simply has not
completed its review of Mr. Dhakal’s claims and conse-
quently has not made a final decision regarding his immigra-
10
tion status and eligibility for asylum. See Jama, 760 F.3d at
496 (“Congress has delegated to specific government agencies
the task of enforcing immigration laws and determining al-
iens’ immigration statuses. The agencies’ decisionmaking
process consummates when they issue a final decision regard-
ing an alien’s immigration status. … [T]he operative question
in this case for purposes of the APA is whether there is a final
decision on Jama’s immigration status.” (emphasis in origi-
nal)).
We also conclude that the decision is not one from which
“legal consequences will flow.” Bennett, 520 U.S. at 178. That
10 Mr. Dhakal responds that the agency, meaning the Department of
Homeland Security, has reached a final decision, because removal pro-
ceedings are conducted by the Executive Office for Immigration Review
in the Department of Justice. That is, although there is further executive
branch review, there is no intra-agency review; the Department of Home-
land Security has completed its review of his asylum claim. It is a novel,
but ultimately unconvincing, argument. Although the structure of the pro-
ceedings span two agencies in two cabinet departments, Congress clearly
intended to consolidate and channel appeals through a single administra-
tive process.
16 No. 17-3377
is, its effect on Mr. Dhakal is to keep in place the status quo
for the time being. “[T]he finality requirement is concerned
with whether the initial decisionmaker has arrived at a defin-
itive position on the issue that inflicts an actual, concrete injury
… .” Williamson Cty. Reg’l Planning Comm'n v. Hamilton Bank
of Johnson City, 473 U.S. 172, 193 (1985) (emphasis added). We
recognize that, were Mr. Dhakal placed in removal proceed-
ings while his TPS was valid, and were he successful in those
proceedings in proving his asylum claim, he would obtain
benefits beyond those afforded by his temporary status. Spe-
cifically, he would obtain long-term certainty as to his status,
a path toward legal permanent residency and citizenship, and
the ability to apply for his immediate family to join him in the
United States. The lack of a present opportunity to seek such
additional benefits is no doubt a hardship to Mr. Dhakal, but
the decision he seeks to have reviewed merely delays his ability
to pursue those ancillary benefits of asylum; it does not defin-
itively deny them. Moreover, the present denial does not im-
mediately affect his ability to remain in the United States.
Because the agency’s decision on Mr. Dhakal’s asylum
claim is not a final agency action within the meaning of the
APA, the district court properly dismissed the case. The
agency’s decision to delay further review by not bringing re-
moval proceedings against Mr. Dhakal is a practical decision
of governing, and it serves important purposes. It allows al-
iens such as Mr. Dhakal time to build a stronger asylum claim,
by providing him with additional time to acquire supporting
documents when country conditions render that task diffi-
cult, if not impossible. It also affords Mr. Dhakal time to de-
velop any other potential avenues for immigration relief as
defenses to removal, should he eventually face such proceed-
ings. It allows the agency to review his claim at a time closer
No. 17-3377 17
to his potential removal, when country conditions underlying
the grant of TPS may be altered in a way material to his claim.
It promotes efficiency in that should Mr. Dhakal’s TPS to be
extended or should he obtain another form of lawful status,
the agency would not expend its resources on initiating and
prosecuting its case to obtain what might be an inconsequen-
tial removal order. Equally importantly, it prioritizes the
cases for removal where aliens have no other right to the pro-
tection of the United States and must assert asylum as a de-
11
fense to otherwise imminent removal.
Moreover, TPS is not mandatory for eligible aliens.
Mr. Dhakal sought and received this status, which has the
enormous benefit of protecting him temporarily from re-
moval. It also, however, carries the consequence of this hold-
ing period, which slows but does not remove his access to in-
tra-agency review. Mr. Dhakal was not required to obtain or
renew this status and its attendant benefits and drawbacks.
11 The decision of the agency not to place in removal proceedings unsuc-
cessful asylum applicants who hold valid TPS, 8 C.F.R. § 208.14(c)(2), is
essentially a blanket stay, or an exercise of prosecutorial discretion. As
such, it would not be subject to our review. Heckler v. Chaney, 470 U.S. 821,
831 (1985) (“This Court has recognized on several occasions over many
years that an agency’s decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally committed to an
agency’s absolute discretion.”). Mr. Dhakal has not challenged that regu-
lation, or its exercise in his case, nor has he alleged the kind of “pattern
and practice” violation of aliens’ statutory rights discussed in Kashani, 793
F.2d at 822. Instead, he has sought to have the merits of his individual
asylum denial itself reviewed directly under the APA.
18 No. 17-3377
Conclusion
The decision of the Director of the Chicago Asylum Office
that forms the basis for Mr. Dhakal’s complaint is not a final
agency action for purposes of the APA. We therefore affirm
the judgment of the district court dismissing Mr. Dhakal’s
complaint, modifying it to reflect that the decision is on the
merits rather than jurisdictional.
AFFIRMED