Petrenko-Gunter v. Upchurch

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 2, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-11249
Summary Calendar
LILIA E. PETRENKO-GUNTER,
Plaintiff-Appellant,
v.
EVELYN UPCHURCH, Individually and in her official capacity
as Director of the Texas Service Center of the BCIS; ANGELA K.
BARROWS, Individually and in her official capacity as Director of
BCIS for the Dallas District; R LEE, Individually and in her
official capacity as Adjudications Officer of the BCIS for the
Dallas District; MICHAEL CHERTOFF, SECRETARY, in his official
capacity as Secretary of the Department of Homeland Security;
ALBERTO GONZALES, U.S. Attorney General,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(04-CV-2691)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Lilia Petrenko-Gunter appeals the district court’s
determination that it lacked jurisdiction to decide the merits of
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
her claim for injunctive and declaratory relief under the
Administrative Procedure Act (APA). We affirm.
After entering the United States in 2002 as the fiancé of a
United States citizen who she subsequently married, Gunter filed
an application to adjust her status to that of a legal resident.
The immigration officer denied her application on February 24,
2004, for non-compliance with the statutory requirement of proof
that she would not become a public charge. Gunter sought
declaratory and injunctive relief from the district court. The
district court dismissed her complaint on July 18, 2005, for lack
of subject matter jurisdiction, and denied her motion for a new
trial on September 12, 2005. Gunter now appeals the district
court’s decision. Our standard of review on appeal from
dismissal for lack of subject matter jurisdiction is de novo.
See Gandy Nursery, Inc. v. States, 318 F.3d 631, 636 (5th Cir.
2003).
Gunter argues that the immigration officer’s decision
denying her application of adjustment status was a final decision
for which subject matter jurisdiction exists pursuant to the APA,
5 U.S.C. § 702–706. Under this Court’s precedent, a district
court lacks jurisdiction to review an agency’s non-final
decisions. Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir.
2000)(“As a matter of jurisdiction, courts may not review the
administrative decisions of the INS unless the appellant has
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first exhausted ‘all administrative remedies.’”)(citation
omitted). Because an individual denied an adjustment of status
can renew that request for adjustment of status upon the
commencement of removal proceedings, Gunter has not yet exhausted
her administrative remedies. See 8 C.F.R. §
245.2(a)(5)(ii)(1999).
Gunter attempts to distinguish her case from Cardoso,
arguing that the earlier case was not decided under the APA.1 It
is true that the plaintiff in Cardoso asserted jurisdiction under
a different statute, but both statutes require final agency
action as a prerequisite to judicial review. The APA, like 8
U.S.C. § 1252(d), which we considered in Cardoso, makes it clear
that only “[a]gency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a
court are subject to judicial review.” 5 U.S.C. § 704. Cardoso,
which held that denial of a request for adjustment of status is
not a final agency action for which there are no other remedies,
thus controls. 216 F.3d at 518.
Gunter also argues a due process violation based on the
impact of the discretionary decision on her personal liberty.
However, failure to receive relief that is purely discretionary
1
Gunter also argues that Cardoso conflicts with a Third
Circuit case, Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005).
Pinho, however, concerned a final determination of eligibility, as
opposed to the sort of non-final discretionary decision that Gunter
has the opportunity.
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in nature does not amount to a deprivation of a liberty interest.
See Garcia-Mir v. Meese, 788 F.2d 1446, 1452 (11th Cir. 1986).
For the foregoing reasons, we AFFIRM the district court’s
determination that it lacked jurisdiction.
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