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Melendez v. McAleenan

United States Court of Appeals, Fifth Circuit

June 27, 2019

OSCAR ERNESTO MELENDEZ, Plaintiff - Appellant
KEVIN K. MCALEENAN, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY; LEE CISSNA, United States Citizenship and Immigration Services Director; MARK SIEGL, Field Office Director, Defendants - Appellees

          Appeal from the United States District Court for the Southern District of Texas

          Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.


         Oscar 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.


         Melendez, 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.

         We do 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.

         In 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.


         I. Absence of Jurisdiction and Failure to State a Claim

         The 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.

         On 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 claim.

         Had the 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.

         Melendez's 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 immigrant ...

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