Eleventh Circuit Finds Jurisdiction Over Statutory-eligibility for Adjustment of Status Under the Cuban Adjustment Act of 1996

In Perez v. U.S. Bureau of Citizenship & Immigration Servs., 774 F.3d 960 (Dec. 19, 2014) (per curiam), the Eleventh Circuit ruled that adjustment of status under the Cuban Adjustment Act was reviewable under the Administrative Procedure Act (“APA”). Perez first entered the United States in 2004 and was denied lawful status. He was denied adjustment in 2009 and 2011.  Because Perez was a Cuban-born national,[1] he brought his status-adjustment under the Cuban Adjustment Act of 1996 (“CAA”).

Perez brought an action against USCIS for mandamus, declaratory relief, and judicial review under the APA. The district court dismissed his complaint for failure to state a claim and for failure to exhaust his administrative remedies. On appeal, USCIS argued that collateral estoppel barred Perez from relitigating the Immigration Judge’s (“IJ”) finding him statutorily ineligible for adjustment.

The Eleventh Circuit first noted that Perez failed to raise arguments regarding his failure to state a claim for mandamus. As a result, Perez waived appellate review of this claim.

Next, the Eleventh Circuit reversed the district court’s finding that it had no jurisdiction over Perez’s claims pursuant to the APA. Section 704 of the APA permits judicial review for final agency action, which adversely affects a plaintiff. See also 5 U.S.C. § 702. The question here was whether the USCIS’s finding that Perez was statutorily ineligible was final agency action.  Finality requires two general requirements: that there be no reviewability and that legal rights or obligations are established or legal consequences flow from agency action. The APA excepts review when it is statutorily precluded or the action is committed to agency discretion.

Committed to agency discretion: The Court noted that while “[t]he ultimate decision whether to grant adjustment of status under the CAA is discretionary[,]” Perez’s initial statutory-eligibility decision “[is a] purely legal question[] that [does] not implicate agency discretion.” Perez, 774 F.3d at 965. The district court may review statutory-eligibility for status adjustment under the CAA.

Statutory Exclusion: The Court found that immigration regulations prohibited appeal from USCIS’s denials of statutory-eligibility under the CAA. Since Perez was an “arriving alien,” thE IJ nor the Board of Immigration Appeals (“BIA”) had jurisdiction over Perez. While §§ 245.2(a)(5)(iii) and 1245.2(a)(5)(iii) prohibit “appeals” of CAA statutory adjustment (by USCIS), the Court found that this referred only to internal agency appeals. Since no other review for a denial of statutory-eligibility under the CAA was available and filing a claim in federal court is a civil action––not an appeal––the district court has jurisdiction over Perez’s claims.

The Court summarily dismissed a collateral estoppel defense based on the IJ’s prior decision. Because the IJ had no jurisdiction over Perez’s claim, there was “no issue preclusive effect.”  Finally, because the district court only considered Perez’s failure to state a claim for mandamus, the Court of Appeals determined the district court should get first crack for a motion to dismiss for failure to state a claim under the APA.

[1] In his 2011 adjustment petition, Perez alleged he was a Cuban national born in Venezuela.  The validity of his documents and the information contained therein led to some of his woes with immigration officials.

Twitter Digg Delicious Stumbleupon Technorati Facebook Email