# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________**
No. 22

- 20325

**____________ Jose Mario Alvarado Hernandez; Sandra Qinteros;**  **Ramel Ascencio Castro; Marlen Lizet Carceres Rodriguez; Mayra Yaneth Rodrigue Rivera;**  **Blanca Rivas Gonzalez,**

Plaintiffs

— Appellants **,**

versus
**Ur Mendoza Jaddou,** Director of U.S. Citizenship and Immigration Services **; Alejandro Mayorkas,**  Secretary, U.S. Department of Homeland Security **; Wallace L. Carroll,**  Houston Field Office Director U.S. Citizenship and Immigration Services **; Merrick Garland,**  U.S. Attorney General **,** Defendants

— Appellees

**.**

**______________________________** Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21

- CV

- 2548

**______________________________** Before **Higginbotham ,**  **Smith ,**  and **Engelhardt ,**  Circuit Judges

**. Jerry E. Smith**  , Circuit Judge **:**
Plaintiffs are six citizens of El Salvador and Honduras who entered the United States illegally over twenty years ago, and all have final orders of United States Court of Appeals Fifth Circuit 

## FILED April 14, 2023 Lyle W. Cayce Clerk Case: 22-20325 Document: 00516712329 Page: 1 Date Filed: 04/14/2023No. 22

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### deportation and removal. After receiving those orders, all plaintiffs success

fully achieved temporary prot ected status (“TPS”) and traveled out of the United States with an advance parole document. After returning to the United States, plaintiffs all filed Form I

- 485s with the United States Citizenship and Immigration Services (“USCIS”) to adjust their status to lawful permanent resident. USCIS rejected or denied all claims, stating that it did not have jurisdiction to hear the claims because the plaintiffs were not “arriving aliens” and that plaintiffs should seek adjust

ment from the Executive Office for Imm igration Review (“EOIR”).

Plaintiffs sued , alleging that USCIS’s failure to accept jurisdiction and adjudicate the claims violated the Administrative Procedure Act. Defen

dants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), alleg

ing tha t the district court did not have subject matter jurisdiction, the claims were a forbidden collateral attack on plaintiffs’ deportation/removal orders, and the plaintiffs had failed to exhaust administrative remedies. Defen dants
also moved to dismiss und er Federal Rule of Civil Procedure 12(b)(6), noting that as a matter of law, only the immigration courts , not USCIS, could review plaintiffs’ applications for adjustment of status. The district court granted the motion to dismiss under Rule 12(b)(6). Citi ng Duarte v. Mayorkas , 27 F.4th 1044 (5th Cir. 2022), the court con

cluded it had subject m atter jurisdiction to determine whether USCIS could review the plaintiffs’ I

- 485 forms. Still, on the merits, the court found that because plaintiffs were not “arri ving aliens,” their adjustment applications must be reviewed by EOIR.
For the same reason, we affirm. Duarte dealt with TPS beneficiaries with final removal or deportation orders who traveled abroad, returned, and challenged USCIS’s administrative closure of their status

- adjustment appli

ca tions for want of jurisdiction. Duarte , 27 F.4th at 1048. As here, the Duarte Case: 22-20325 Document: 00516712329 Page: 2 Date Filed: 04/14/2023No. 22

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### plaintiffs argued that they were “arriving aliens” and that USCIS properly had jurisdiction over their adjustment applications. Id. Duarte held other

wise. Id. at 1061.

O ur rule of orderliness means “one panel of our court may not over

turn another panel’s decision, absent an intervening change in the law, such as by a stat utory amendment, or the Supreme Court, or our en banc court .” Jacobs v. Nat’l Drug Intel. Ctr. , 548 F.3d 375, 378 (5th Cir. 2008). The plain

tiffs provide no relevant reasons for how their case func tionally differs from
Duarte . Instead, they openly ask us to revisit and re

- analyze Duarte . Thus, even if we disagreed with Duarte ’s interpretation of the law, we still would have to follow it. 1



### _____________________

1 Were we writing on a tabula rasa , we may not have subject matter jurisdiction over the appeal. In Patel v. Garland , 142 S. Ct. 1614 (2022) , the Court held that per 8 U.S.C. § 1252(a)(2)(B)(i ), federal courts lack jurisdiction over judgments pertaining to the denial of adjustment of status. Id. at 1622

– 26. The Court rejected the contention that “judg

ment” refers only to discretionary decisions or the ultimate denial of relief. Instead, “§ 1252(a)(2)(B)(i) encompasses not just ‘the granting of relief’ but also any judgment relat ing to the granting of relief. That plainly includes factual findings.” Id. at 1622. And the Court limited its direct holding to “factual findings that underlie a denial of relief.” Id. at 1618.
Patel cautioned that “the reviewability of [USCIS] decisions is not before us, and we do not decide it.” Id. at 1626. Yet the Court knew that such a broad reading of the
stat ute might “have the unintended consequence o f precluding all review of USCIS denials of discretionary relief.” Id. Further, the Court noted that § 1252 has an important quali

fier: “Nothing in [§ 1252(a)(2)(B)] .

. . shall be construed as precluding review of con

stitutional claims or questions of law raised upon a petition for review filed with an appro

priate court of appeals in accordance with this section.” Id. at 1619 ( quoting § 1252(a)(2)(D)). Thus, the Court clarified that Congress likely preserved review for “legal and con

stitutional questions only when raised in a petition for review of a final order of removal.” Id. at 1626. Consequently, Patel heavily implies that the judiciary is without jurisdiction to decide the issue presented here. In the present case, t he pertin ent legal issue concerns adjustment of status, and the express text of § 1252(a)(2)(B)(i) precludes judicial review of any judgment regarding adjustment

- of

- status matters under 8 U.S.C. § 1255. The Court 

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### The judgment of dismissal is **AFFIRMED.**

**_____________________** stated that that jurisdictional bar, when combined with the qualification in § 1252(a) (2)(D), indicates that aliens not in removal proceedings may have no ability to challenge any USCIS decision regarding adjustment of status outside of removal proceedings. Id. at 1626

– 27.
Patel states that “§ 1252(a)(2) (B)(i) does not stop at just the grant or denial of relief; it extends to any judgment ‘regarding’ that ultimate decision.” Id. at 1625. In the pres ent case, USCIS’s ultimate decision was to refuse to take jurisdiction o ver plaintiffs’ applications. Even though “Appellants do not seek review of a decision that could inval i

date their removal orders, but rather USCIS ’ s determination that it lacked di scretion to make such a decision in the first place ,” Duarte , 27 F.4th at 1055, the plain reading of Patel would bar plaintiffs’ claims here. Other courts have found similarly. See Britkovyy v. May

or

kas , 60 F.4th 1024 , 1032 (7th Cir. 2023) ; Doe v. Sec’ y, U.S. Dep’t of Homeland Sec. , No. 22

- 11818, 2023 WL 2564856 , at * 2

– 3 (11th Cir. Mar. 20, 2023) ; Abuzeid v. Mayorkas , 62 F.4th 578 , 585

– 86 (D.C. Cir. 2023).
But f or a Supreme Court case to change our law, it must “unequivocally overrule prior precedent.” In re Bonvillian Marine Serv., Inc. , 19 F.4th 787, 792 (5th Cir. 2021) (quo

ta tion omitted). The foregoing discussion in Patel is dict um and does not unequivoca lly overrule Duarte , which remains controlling. 

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