from the United States District Court for the Southern
District of Texas
BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE.
Ernesto Melendez filed suit seeking a declaratory judgment
that the Department of Homeland Security had improperly
denied his application to adjust his status to that of a
legal permanent resident. The district court dismissed his
complaint for lack of jurisdiction. The government now
concedes there was jurisdiction but urges we deny relief.
Though there is jurisdiction, Melendez benefits little
because we also conclude he did not state a legally
cognizable claim. The district court's ruling is VACATED,
and the complaint is DISMISSED.
AND PROCEDURAL HISTORY
a native and citizen of El Salvador, entered the United
States in February 2000 on a one-month nonimmigrant visitor
visa. Melendez did not leave the United States after one
month or at any later time either. In March 2001, the
Attorney General designated El Salvador for Temporary
Protected Status ("TPS"). As long as El Salvador is
so designated, the special status for Melendez continues.
See United States v. Orellana, 405 F.3d 360, 366
(5th Cir. 2005). Melendez filed for TPS in August 2001 and
had it granted, but the record does not show the date of its
grant. From the expiration of his visa in March 2000 to the
award of TPS sometime in late 2001, Melendez was an alien
unlawfully present in the United States.
not have the documentation, but Melendez states (and the
government does not dispute) that he has an approved I-130
Petition for Alien Relative filed by his United States
citizen brother, and that his visa priority date is in 2003.
In July 2016, Melendez filed a Form I-485 with the United
States Citizenship and Immigration Services
("USCIS") seeking adjustment of his status to that
of a lawful permanent resident and stated that an immigrant
visa was immediately available. See 8 U.S.C. §
1255(a). USCIS denied his application in September 2017. It
determined he could not adjust his status because from the
date his visitor visa expired, March 2000, until his filing
for TPS, August 2001, Melendez was not lawfully present in
the United States.
November 2017, Melendez filed suit in the United States
District Court for the Southern District of Texas against the
Secretary of the Department of Homeland Security
("DHS") and two individuals in their official
capacities with USCIS. To be clear, this suit does not
concern Melendez's imminent removal from the United
States. He seeks a declaratory judgment that USCIS erred in
its denial of his adjustment application. Melendez claimed
both general federal question jurisdiction under 28 U.S.C.
§ 1331 and a right to sue under the Administrative
Procedure Act, 5 U.S.C. §§ 701-706. The district
court granted the government's motion to dismiss for lack
of jurisdiction. Melendez timely appealed.
Absence of Jurisdiction and Failure to State a Claim
government moved for dismissal based on an absence of
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
and alternatively for failure to state a claim under Rule
12(b)(6). The district court held it lacked jurisdiction due
to 8 U.S.C. § 1252(a)(2)(B)(i) and did not reach the
merits question. Section 1252(a)(2)(B)(i) strips federal
courts of jurisdiction to review "any judgment regarding
the granting of relief under," among others, Section
1255, which is the statute applicable to an adjustment of
status. On appeal, the government abandons the argument that
there is no jurisdiction, acknowledging one of our decisions
in which we held the bar to reviewing a "judgment
regarding the granting of relief" applies only to
discretionary decisions. Mireles-Valdez v.
Ashcroft, 349 F.3d 213, 215-16 (5th Cir. 2003). A
decision as to "whether an alien satisfies the
continuous presence requirement is a nondiscretionary
determination." Id. at 217. We hold, then, that
the denial of Melendez's adjustment application was a
nondiscretionary decision based on the finding he was
statutorily ineligible, making Section 1252(a)(2)(B)(i)'s
jurisdictional bar inapplicable.
appeal, the government again argues Melendez fails to state a
claim and that we should affirm the dismissal of his
complaint. Though the only ruling by the district court was
based on jurisdiction, "[w]e are free to uphold the . .
. judgment on any basis that is supported by the
record." Zuspann v. Brown, 60 F.3d 1156, 1160
(5th Cir. 1995). We now turn to whether Melendez has stated a
district court relied on this basis to dismiss, we would
review de novo. Mowbray v. Cameron Cnty.,
274 F.3d 269, 276 (5th Cir. 2001). That necessarily also is
our standard when, as here, the district court did not reach
the issue and dismissed on a ground we do not accept.
Melendez must have alleged "enough facts to state a
claim to relief that is plausible on its face." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also Fed. R. Civ. P. 12(b)(6). In evaluating claims, we
accept all well-pled facts as true and view all facts in the
light most favorable to the plaintiff. Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d
849, 854 (5th Cir. 2012) (en banc). We do not give any weight
to either party's legal conclusions. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). We are not concerned
with whether a plaintiff will succeed but only with whether
the complaint states a plausible, legally cognizable claim.
Doe ex rel. Magee, 675 F.3d at 854.
claim is that he is entitled to adjust status despite
undisputed facts that the government argues make him
ineligible. Thus, the issue under Rule 12(b)(6) is one of
law. To adjust status, an alien must (1) have been
"inspected and admitted or paroled into the United
States;" (2) "ma[de] an application for . . .
adjustment [of status];" (3) be "eligible to
receive an immigrant visa and [be] admissible to the United
States for permanent residence;" and (4) have "an