United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-40398 

____________ 

Ashok Kumar Cheejati; Karthik Rajashekaran; Nishant 

Mathur; Haragopal Chakravarthy; Seshu Gavara; Et 

al., 

Plaintiffs—Appellants, 

versus

Antony Blinken, Secretary, U.S. Department of State; Ur M. 

Jaddou, Director of U.S. Citizenship and Immigration Services, 

Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 4:23-CV-600 

______________________________ 

Before Richman, Chief Judge, and Oldham and Ramirez, Circuit 

Judges.

Irma Carrillo Ramirez, Circuit Judge: 

Appellants are a group of lawfully admitted Indian nationals who have 

applied for permanent residency. They sued Secretary of State Antony 

Blinken, in his official capacity (“DOS”), and United States Citizenship and 

Immigration Services Director Ur M. Jaddou, in her official capacity 

(“USCIS”), challenging their approach to distributing immigrant visas. 

United States Court of Appeals 

Fifth Circuit 

FILED 

April 9, 2024 

Lyle W. Cayce 

Clerk 

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2 

Because subject-matter jurisdiction is lacking, we must VACATE and 

REMAND with instructions to dismiss. 

I. BACKGROUND 

Appellants are nonimmigrants1

 legally present in the United States on 

employment-based visas chargeable to India. They have all filed Forms I-485 

seeking adjustment of status to lawful permanent residents. Before an alien’s 

status can be adjusted, a visa number must be available to him. As of June 

2023, shortly before this suit was filed, DOS had estimated that visa numbers 

were immediately available to Appellants, so Appellants had all applied for 

status adjustments. But visa demand in mid-2023 was higher than expected, 

and ultimately, visa numbers were not immediately available to Appellants. 

As a result, Appellants’ applications were held in abeyance until a visa 

number became available. 

Appellants challenge the delay in adjudicating their I-485 applications. 

They maintain that DOS’s and USCIS’s policies of deferring adjudication of 

the applications until a visa number becomes available violate the clear 

language of the statute governing adjustment of status for nonimmigrants, 8 

U.S.C. § 1255(a). They seek injunctive and declaratory relief under § 706(1) 

of the Administrative Procedure Act2

 (APA) and the federal Declaratory 

_____________________ 

1

 “The Immigration and Nationality Act distinguishes between immigrant and 

nonimmigrant aliens[.] ... An alien falling into one of fifteen exclusionary categories is a 

nonimmigrant alien, a class generally delimited by a lack of intention to abandon his foreign 

country residence and entry into the United States for specific and temporary purposes.” 

LeClerc v. Webb, 419 F.3d 405, 410 n.2 (5th Cir. 2005). 

2

 Section 706 provides: 

To the extent necessary to decision and when presented, the reviewing 

court shall decide all relevant questions of law, interpret constitutional and 

statutory provisions, and determine the meaning or applicability of the 

terms of an agency action. The reviewing court shall— 

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3 

Judgment Act, 28 U.S.C. § 2201. Below, they moved for a preliminary 

injunction; that motion was denied, and they appeal that decision. 

II. STANDARD OF REVIEW 

We review the denial of a preliminary injunction for abuse of 

discretion, but any underlying legal principles are reviewed de novo. Speaks v. 

Kruse, 445 F.3d 396, 399 (5th Cir. 2006). Before reaching the merits of an 

appeal, however, “we must first assure ourselves of our own federal subject 

matter jurisdiction.” La. Real Est. Appraisers Bd. v. FTC, 917 F.3d 389, 391 

(5th Cir. 2019) (per curiam) (internal quotations omitted) (quoting Keyes v. 

Gunn, 890 F.3d 232, 235 n.4 (5th Cir. 2018)); Arbaugh v. Y & H Corp., 546 

U.S. 500, 514 (2006) (Federal courts have an “independent obligation to 

determine whether subject-matter jurisdiction exists[.]”). Issues of subjectmatter jurisdiction are reviewed de novo. Borden v. Allstate Ins. Co., 589 F.3d 

168, 170 (5th Cir. 2009). 

III. THE IMMIGRATION AND NATIONALITY ACT 

The Immigration and Nationality Act (INA) governs visa allocation 

for foreign nationals wanting to enter the United States. In the INA, 

Congress conferred upon the Attorney General3

 the discretion to adjust the 

status4

 of an alien to lawful permanent resident: 

_____________________ 

(1) compel agency action unlawfully withheld or unreasonably 

delayed[.] 

5 U.S.C. § 706. 

3

 The Attorney General’s authority under this provision has been delegated in 

relevant part to USCIS. See, e.g., 6 U.S.C. §§ 271(b)(5), 455(c). 

4

 Adjustment of status is a mechanism by which an alien’s status may be changed 

to that of lawful permanent resident without requiring the alien to leave the United States. 

See Marques v. Lynch, 834 F.3d 549, 554 (5th Cir. 2016). 

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4 

The status of an alien who was inspected and admitted or 

paroled into the United States or the status of any other alien 

having an approved petition for classification as a VAWA selfpetitioner may be adjusted by the Attorney General, in his 

discretion and under such regulations as he may prescribe, to 

that of an alien lawfully admitted for permanent residence if (1) 

the alien makes an application for such adjustment, (2) the 

alien is eligible to receive an immigrant visa and is admissible 

to the United States for permanent residence, and (3) an 

immigrant visa is immediately available to him at the time his 

application is filed. 

8 U.S.C. § 1255(a). 

The INA also sets the number of visas that can be allocated during 

each fiscal year, determined based on the type of visa and the country of 

origin of the applicant. Id. § 1152. These caps apply to both foreign nationals 

seeking to enter the United States and aliens currently in the United States 

who apply for an adjustment of status. To ensure the proper number of visas 

is issued, Congress permitted the Secretary of State to “make reasonable 

estimates of the anticipated numbers of visas to be issued during any quarter 

of any fiscal year within each of the categories [listed in the statute] and to 

rely upon such estimates in authorizing the issuance of visas.” Id. § 1153(g). 

DOS looks to data from consular officers and USCIS to arrive at these 

estimates.5

 

DOS communicates these estimates to the public on the Visa Bulletin, 

which is published monthly on the DOS website, by reference to applicants’ 

Final Action Dates. For purposes of a lawful nonimmigrant seeking 

_____________________ 

5 See U.S. DOS—Bureau of Consular Affairs, Visa Bulletin for March 2024, The 

Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visabulletin/2024/visa-bulletin-for-march-2024.html [https://perma.cc/42RQ-2KNC]. 

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5 

adjustment of status, a Final Action Date is, in its simplest form, the date on 

which the applicant’s current visa (for instance, his employment-based visa) 

was first obtained. The Visa Bulletin lists the latest possible Final Action 

Date that would render an applicant eligible for a visa. In other words, any 

applicant with a Final Action Date earlier than the date listed on the Visa 

Bulletin can apply for a visa number, and DOS estimates that one will be 

immediately available to him. Section 1255(a)(3) therefore requires that, on 

the date an application for adjustment of status is filed, the applicant’s Final 

Action Date must predate the one listed on the Visa Bulletin for the 

applicable visa category. 

Occasionally, DOS will overestimate the number of available visas, or 

actual demand will outpace the projected demand upon which DOS’s 

estimates were based. When this occurs, to avoid allocating too many visas, 

DOS will change the relevant Final Action Date to an earlier date to reflect 

the fact that fewer applicants will have a visa number available to them.6

 This 

process is called retrogression. When a Final Action Date retrogresses, it is 

possible that an individual applicant could have been eligible to apply for 

adjustment of status on one day, but ineligible the next. Typically, when the 

new fiscal year begins in October, more visa numbers will become available, 

and DOS will undo the retrogression, often resetting the relevant Final 

Action Date to the latest date previously listed. And when retrogression 

renders previously eligible applicants ineligible for approval, DOS and 

USCIS each have a policy of holding the application in abeyance until a visa 

_____________________ 

6 Compare U.S. DOS—Bureau of Consular Affairs, Visa Bulletin for June 2023, 

The Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visabulletin/2023/visa-bulletin-for-june-2023.html [https://perma.cc/BRE3-BLBS], with 

U.S. DOS—Bureau of Consular Affairs, Visa Bulletin for July 2023, The Visa 

Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visabulletin/2023/visa-bulletin-for-july-2023.html [https://perma.cc/EDP3-JPXF]. 

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number becomes available. The parties refer to these policies as the 

“retrogression hold policies.” 

Relevant to this appeal, the June 2023 Visa Bulletin listed the Final 

Action Date for determining visa number availability for Appellants as June 

15, 2012.7

 But the following month, the Final Action Date retrogressed to 

January 1, 2009.8

 Visa numbers were available to all Appellants as of June 

2023 because they all have Final Action Dates before June 15, 2012. But the 

July 2023 retrogression rendered them ineligible for adjustment of status. 

The March 2024 Visa Bulletin lists the relevant Final Action Date as July 1, 

2012.9

Once an application for adjustment of status is approved, the Attorney 

General is statutorily required to “record the alien’s lawful admission for 

permanent residence as of the date” of the approval, and DOS must “reduce 

by one the number of the preference visas authorized to be issued under 

sections 1152 and 1153 of this title within the class to which the alien is 

chargeable for the fiscal year then current.” 8 U.S.C. 1255(b). 

IV. JURISDICTION

_____________________ 

7 See U.S. DOS—Bureau of Consular Affairs, Visa Bulletin for June 2023, The 

Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visabulletin/2023/visa-bulletin-for-june-2023.html [https://perma.cc/BRE3-BLBS]. 

8 See U.S. DOS—Bureau of Consular Affairs, Visa Bulletin for July 2023, The 

Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visabulletin/2023/visa-bulletin-for-july-2023.html [https://perma.cc/EDP3-JPXF]. 

9 See U.S. DOS—Bureau of Consular Affairs, Visa Bulletin for March 2024, The 

Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visabulletin/2024/visa-bulletin-for-march-2024.html [https://perma.cc/42RQ-2KNC]. 

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DOS and USCIS contend that federal courts do not have jurisdiction 

to address Appellants’ challenge because the jurisdiction-stripping 

provisions in the INA preclude it.10

The INA strips federal courts of jurisdiction to address many 

challenges brought in the context of immigration proceedings. Relevant here, 

8 U.S.C. § 1252 dictates that: 

Notwithstanding any other provision of law (statutory or 

nonstatutory), including section 2241 of Title 28, or any other 

habeas corpus provision, and sections 1361 and 1651 of such 

title, and except as provided in subparagraph (D), and 

regardless of whether the judgment, decision, or action is made 

in removal proceedings, no court shall have jurisdiction to 

review— 

(i) any judgment regarding the granting of relief under 

section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, 

or 

(ii) any other decision or action of the Attorney General or 

the Secretary of Homeland Security the authority for which 

is specified under this subchapter to be in the discretion of 

the Attorney General or the Secretary of Homeland 

Security[.] 

_____________________ 

10 DOS and USCIS also argue that Appellants lack standing and the case has been 

rendered moot because (1) several of Appellants’ I-485 applications have been approved 

and (2) the Final Action Date retrogression that rendered Appellants ineligible for 

adjustment of status has been reversed. We may address jurisdictional issues in any order 

we choose. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007). 

It is not obvious from the pleadings or briefs that the controversy is moot for two reasons: 

(1) Appellants complain that the mere delay of their applications harmed them by reducing 

the time spent as lawful permanent residents, working towards becoming naturalized 

citizens, and (2) it is not clear whether some of the individuals who are now eligible have 

ultimately received approval of their applications. Accordingly, we begin and end with 

DOS’s and USCIS’s statutory argument. 

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8 U.S.C. § 1252(a)(2)(B). Subparagraph (D) contains an exception for review 

of “constitutional claims or questions of law raised upon a petition for 

review,” id. § 1252(a)(2)(D), and has been interpreted as applying only when 

a petition for review is filed directly in the appropriate court of appeals, see, 

e.g., Mendoza v. Mayorkas, No. 23-20043, 2023 WL 6518152, at *2 & n.1 (5th 

Cir. Oct. 5, 2023) (per curiam) (collecting cases). 

As discussed, the INA provides that “[t]he status of an alien who was 

admitted or paroled into the United States ... may be adjusted by the 

Attorney General, in his discretion and under such regulations as he may 

prescribe, to that of an alien lawfully admitted for permanent residence if” the 

alien meets the three criteria listed in the statute. 8 U.S.C. § 1255(a) 

(emphasis added). 

In noting that § 1252(a)(2)(B) likely strips federal courts of 

jurisdiction to hear Appellants’ suit, the district court cited to the Supreme 

Court’s decision in Patel v. Garland, 596 U.S. 328, 338 (2022), which

endorsed an expansive reading of § 1252(a)(2)(B). There, the petitioner’s 

application for adjustment of status was denied because he had previously 

misrepresented his citizenship when applying for a Georgia driver’s license 

and was therefore ineligible for status adjustment. Id. at 334. He sought 

review of that denial. Id. at 335. In holding that federal courts lack jurisdiction 

to review factual findings upon which a discretionary decision is based, the 

Supreme Court emphasized the broad language used in § 1252(a)(2)(B)(i): 

“it prohibits review of any judgment regarding the granting of relief under § 

1255[.] As this Court has repeatedly explained, the word ‘any’ has an 

expansive meaning.” Id. at 338 (internal quotations omitted) (quoting Babb 

v. Wilkie, 589 U.S. 399, 405 n.2 (2020)). Section 1252(a)(2)(B)(ii) similarly 

uses the word “any”: courts are without jurisdiction to review “any other 

decision or action of the Attorney General or the Secretary of Homeland 

Security . . ..” Under Patel, “any” operates to augment the purview of § 

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1252(a)(2)(B)(ii) to preclude judicial review of DOS’s and USCIS’s 

retrogression hold policies, which are practical applications of the discretion 

afforded the Attorney General in § 1255(a). 

 Also useful is our vacated decision in Bian v. Clinton, 605 F.3d 249 

(5th Cir. 2010). The facts of Bian are virtually identical to those presented 

here: the petitioner was lawfully present in the United States on an 

employment-based visa and filed an I-485 application to adjust her status. Id. 

at 251. Because there were no visa numbers available to applicants in her visa 

category, the adjudication of her application was delayed. Id. Frustrated by 

the delay, the petitioner filed suit “seeking to compel [USCIS] to adjudicate 

her I-485 application for adjustment of immigration status.” Id. 

Bian held that federal courts lacked jurisdiction to hear the case 

because § 1252(a)(2)(B)(ii) precluded review of “the USCIS’s pace of 

adjudication.” Id. at 252–53. The court concluded that the word “action” in 

§ 1252(a)(2)(B)(ii) would be superfluous if the provision stripped the courts 

of jurisdiction to review only final, discrete decisions. Id. at 253–54 (“If 

Congress had intended for only USCIS’s ultimate decision to grant or deny 

an application to be discretionary—as distinguished from its interim 

decisions made during the adjudicative process—then the word ‘action’ 

would be superfluous.”). Therefore, the conduct that the petitioner 

complained of in Bian—the same conduct to which Appellants object here—

was an “action” undertaken by the Attorney General for purposes of § 

1252(a)(2)(B)(ii). 

Moreover, as Bian noted, § 1252(a)(2)(B)(ii) strips federal courts of 

jurisdiction to review any discretionary decision or action rendered by the 

Attorney General. Section 1255(a) expressly leaves not only the ultimate 

decision to adjust an applicant’s immigration status but also actions taken in 

the course of the decision-making process—including the pace at which that 

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process is undertaken—to the discretion of the Attorney General: 

applications for adjustment of status are adjudicated “in [the Attorney 

General’s] discretion and under such regulations as he may prescribe.” 8 

U.S.C. § 1255(a). And we recently held, albeit in an unpublished case, that 

the pace of USCIS’s adjudication is left to its discretion, with “no clear 

mandate” requiring USCIS to act within a certain timeframe. Li v. Jaddou, 

No. 22-50756, 2023 WL 3431237, at *1 (5th Cir. May 12, 2023). Accordingly, 

the discrete acts undertaken to render an adjustment decision and the timing 

of those acts are determined by the Attorney General in his discretion, and 

that discretionary action cannot be reviewed by federal courts. 8 U.S.C. §§ 

1252(a)(2)(B)(ii), 1255. 

Exercising his § 1255 authority, the Attorney General promulgated 

regulations to facilitate the adjustment of status decision-making process, 

including the regulations Appellants challenge here, such as 8 C.F.R. § 245.2. 

The retrogression hold policies are effectuated through discrete acts by DOS 

and USCIS, informed by these regulations. For instance, DOS amends the 

Visa Bulletin to establish a new Final Action Date, and USCIS decides to 

delay adjudicating the applications or, in other words, sets the status of an 

application to pending. See Thigulla v. Jaddou, 94 F.4th 770, 775 (8th Cir. 

2024) (noting that “USCIS decided to delay adjudicating the [plaintiffs’] 

status adjustment applications” and that decision constituted an “action” 

for purposes of § 1252(a)(2)(B)(ii)). These regulations, and the conduct they 

direct DOS and USCIS to undertake, are therefore “action[s] of the Attorney 

General ... the authority for which is specified under this subchapter to be in 

the discretion of the Attorney General[.]” 8 U.S.C. § 1252(a)(2)(B)(ii). 

Although Bian was later vacated because a visa number became available to 

the petitioner and the case was rendered moot, we find its reasoning 

persuasive. 

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Our reading of § 1252(a)(2)(B) also comports with that of the only 

other circuit to address the issue. The Eighth Circuit recently concluded that 

it lacked subject-matter jurisdiction to hear a similar challenge. Thigulla, 94 

F.4th at 777–78. In Thigulla, the plaintiffs sought to adjust their status from 

lawful nonimmigrants present in the United States on temporary work visas 

to lawful permanent residents. Id. at 772. The plaintiffs’ priority dates 

retrogressed, and USCIS delayed adjudication of their applications as a 

result. Id. at 772–73. The plaintiffs sued USCIS under the APA, seeking to 

compel it to promptly render a decision with respect to their applications. Id. 

at 773. Noting that only “clear and convincing” evidence of Congress’s 

intent can overcome the presumption in favor of judicial review of agency 

decisions, the court considered the text of §§ 1252(a)(2)(B) and 1255. Id. at 

773–75. The court concluded that “[t]he text of § 1252(a)(2)(B)(ii) and § 

1255(a) is clear and convincing evidence that Congress intended to preclude 

judicial review of the Attorney General’s discretionary decisions about the 

status adjustment process under § 1255(a), like the [retrogression hold 

policies].” Id. at 776. We find the Eighth Circuit’s analysis persuasive and 

agree with its conclusion. 

Appellants argue that § 1252(a)(2)(B)(ii) does not apply here because 

the statute’s title indicates that it was intended to apply only to decisions 

related to removal. They cite to the Supreme Court’s decision in INS v. 

National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991), for the 

proposition that the title of a statute can aid a court in resolving an ambiguity 

in the statutory language. But there is no ambiguity to be resolved here: § 

1252(a)(2)(B) expressly states that it applies “regardless of whether the 

judgment, decision, or action is made in removal proceedings[.]” 8 U.S.C. § 

1252(a)(2)(B). Several of our sister circuits have applied § 1252(a)(2)(B) in 

cases that did not involve removal. See, e.g., Al-Saadoon v. Barr, 973 F.3d 794, 

802 n.6 (8th Cir. 2020) (“[Petitioners’] argument that [§ 1252(a)(2)(B)] only 

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applies to removal proceedings is incorrect. The statute limits review 

‘regardless of whether the judgment ... is made in removal proceedings.’”); 

Abuzeid v. Mayorkas, 62 F.4th 578, 586 (D.C. Cir. 2023) (no jurisdiction to 

review denial of petitioner’s application for adjustment of status from 

student visa holder to lawful permanent resident); Juras v. Garland, 21 F.4th 

53, 60 (2d Cir. 2021) (no jurisdiction to review withdrawal of application for 

admission to the United States); Thigulla, 94 F.4th at 777. And § 1255 applies 

in both removal proceedings and proceedings unrelated to removal; there is 

no evidence in the text of the statute that Congress intended to strip federal 

courts of jurisdiction as to one type of discretionary conduct, but not as to 

another. 

We have previously noted “the general expectation that federal courts 

address subject-matter jurisdiction at the outset in the ‘mine run of cases[.]’” 

Sangha v. Navig8 ShipManagement Priv. Ltd., 882 F.3d 96, 100 (5th Cir. 2018) 

(quoting Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 436 

(2007)). Because § 1252(a)(2)(B)(ii) precludes federal courts from hearing 

challenges like this one, we must vacate the order denying the motion for 

preliminary injunction and remand with instructions to dismiss this case for 

lack of subject-matter jurisdiction. 

V. CONCLUSION 

For these reasons, we hold that § 1252(a)(2)(B)(ii) prevents us from 

hearing a challenge to DOS’s and USCIS’s retrogression hold policies, as 

they are actions undertaken by the Attorney General and expressly left to his 

discretion under § 1255(a). The district court’s decision is VACATED, and 

the case is REMANDED with instructions to dismiss for lack of subjectmatter jurisdiction. 

 

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