United States Court of Appeals

for 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

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No. 22-20325

2

deportation and removal. After receiving those orders, all plaintiffs successfully achieved temporary protected 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 adjustment from the Executive Office for Immigration Review (“EOIR”).

Plaintiffs sued, alleging that USCIS’s failure to accept jurisdiction and 

adjudicate the claims violated the Administrative Procedure Act. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), alleging that 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. Defendants 

also moved to dismiss under 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). 

Citing Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022), the court concluded it had subject matter jurisdiction to determine whether USCIS could 

review the plaintiffs’ I-485 forms. Still, on the merits, the court found that 

because plaintiffs were not “arriving 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 applications for want of jurisdiction. Duarte, 27 F.4th at 1048. As here, the Duarte 

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plaintiffs argued that they were “arriving aliens” and that USCIS properly

had jurisdiction over their adjustment applications. Id. Duarte held otherwise. Id. at 1061. 

Our rule of orderliness means “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such 

as by a statutory 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 plaintiffs provide no relevant reasons for how their case functionally 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

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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 “judgment” 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 

relating 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 

statute might “have the unintended consequence of precluding all review of USCIS denials 

of discretionary relief.” Id. Further, the Court noted that § 1252 has an important qualifier: “Nothing in [§ 1252(a)(2)(B)] . . . shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” Id. at 1619 (quoting 

§ 1252(a)(2)(D)).

Thus, the Court clarifiedthat Congress likely preserved review for “legal and constitutional questionsonly whenraised 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, the pertinent 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.

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stated that that jurisdictional bar, when combined with the qualification in § 1252(a)(2)(D), 

indicates that aliensnot 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 

present case, USCIS’s ultimate decision was to refuse to take jurisdiction over plaintiffs’ 

applications. Even though “Appellants do not seek review of a decision that could invalidate their removal orders, but rather USCIS’s determination that it lacked discretion 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. SeeBritkovyy v. Mayorkas, 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 for 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) (quotation omitted). The foregoing discussion in Patel is dictum and does not unequivocally 

overrule Duarte, which remains controlling. 

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