# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-40398

____________ Ashok Kumar Cheejati; Karthik Rajashekaran; Nishant Mathur; Haragopal Chakrava rthy; 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 ad mitted Indian nationals who have applied for permanent residency. Th ey 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 Case: 23-40398 Document: 56-1 Page: 1 Date Filed: 04/09/2024No. 23-40398

2 Because subject-matter jurisdiction is lacking, we must VACATE and REMAND with instructions to dismiss.
I. BACKGROUND Appellants are nonimmigrants 1 legally present in the United States on employment-based visas chargeable to In dia. They have a ll 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 Appellant s, 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 adj udicating their I-485 applications. They maintain that DOS’s and USCIS’ s policies of deferring adjudication of the applications until a visa numberbecomes available violate the clear language of the statute governing ad justment of status for nonimmigrants, 8 U.S.C. § 1255(a). They seek injunctive and declaratory relief under § 706(1) of the Administrative Procedure Act 2 (APA) and the federal Declaratory

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1 “The Immigration and Nationality Ac t distinguishes between immigrant and nonimmigrant aliens[.] ... An alien falling into on e of fifteen exclusionary categories is a nonimmigrant alien, a class generally delimited bya lack of intention to abandon his foreign country residence and entry into the United St ates 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— Case: 23-40398 Document: 56-1 Page: 2 Date Filed: 04/09/2024No. 23-40398

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 pre liminary 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) (inter nal 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 jurisdic tion 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 Ac t (INA) governs visa allocation for foreign nationals wanting to ente r the United States. In the INA, Congress conferred upon the Attorney General 3 the discretion to adjust the
status 4 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 a lien to leave the United States. See Marques v. Lynch , 834 F.3d 549, 554 (5th Cir. 2016). Case: 23-40398 Document: 56-1 Page: 3 Date Filed: 04/09/2024No. 23-40398

4 The status of an alien who wa s 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 regula tions 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 perm anent 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 vi sas 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 Secr etary of State to “make reasonable estimates of the anticipated numbers of vi sas to be issued during any quarter of any fiscal year within each of the cate gories [listed in the statute] and to rely upon such estimates in au thorizing the issuance of visas.” Id . § 1153(g). DOS looks to data from consular offi cers 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 we bsite, by reference to applicants’ Final Action Dates. For purposes of a lawful nonimmigrant seeking

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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]. Case: 23-40398 Document: 56-1 Page: 4 Date Filed: 04/09/2024No. 23-40398

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 lis ts the latest possible Final Action Date that would render an applicant elig ible for a visa. In other words, any applicant with a Final Action Date ear lier 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 ou tpace the projected de mand upon which DOS’s estimates were based. When this occurs , to avoid allocating too many visas, DOS will change the relevantFinal Action Date to an earlier date to reflect the fact that fewer applicants will ha ve a visa number available to them. 6 This process is called retrogression. When a Fi nal Action Date retrogresses, it is possible that an indi vidual applicant could have been eligible to apply for adjustment of status on one day, but in eligible the next. Typically, when the new fiscal year begins in October, mo re visa numbers will become available, and DOS will undo the retrogression, often resetting the relevant Final Action Date to the latest date prev iously listed. And when retrogression renders previously eligible applican ts ineligible for approval, DOS and USCIS each have a policy of holding the application in abeyance until a visa

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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]. Case: 23-40398 Document: 56-1 Page: 5 Date Filed: 04/09/2024No. 23-40398

6 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 Fi nal 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 befor e June 15, 2012. But the July 2023 retrogression rendered them ineligible for adjustment of status. The March 2024 Visa Bulletin lists the relevant Final Ac tion 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 with in the class to which the alien is chargeable for the fiscal year then current.” 8 U.S.C. 1255(b). IV. JURISDICTION

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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]. Case: 23-40398 Document: 56-1 Page: 6 Date Filed: 04/09/2024No. 23-40398

7 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 i mmigration 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 se ctions 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 cour t 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 acti on of the Attorney General or the Secretary of Homeland Secu rity the authority for which is specified under this subchapt er to be in the discretion of the Attorney General or the Secretary of Homeland Security[.]

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10 DOS and USCIS also argue that Appellant s lack standing and the case has been rendered moot because (1) several of Appellant s’ 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 ma y 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 residen ts, 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 applic ations. Accordingly, we begin and end with DOS’s and USCIS’s statutory argument. Case: 23-40398 Document: 56-1 Page: 7 Date Filed: 04/09/2024No. 23-40398

8 8 U.S.C. § 1252(a)(2)(B). Subparagraph (D) contains an exception for review of “constitutional claims or question s of law raised upon a petition for review,” id. § 1252(a)(2)(D), and has been in terpreted as applying only when a petition for review is filed directlyin the appropriate court of appeals, see, e.g. , Mendoza v. Mayorkas , No. 23-20043, 2023 WL 65 18152, at *2 & n.1 (5th Cir. Oct. 5, 2023) (per cu riam) (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 wa s denied because he had previously misrepresented his citizenship when ap plying 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 fede ral courts lack jurisdiction to review factual findings upon which a discretionary decision is based, the Supreme Court emphasized the broad lang uage 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 wo rd ‘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 au gment the purview of § Case: 23-40398 Document: 56-1 Page: 8 Date Filed: 04/09/2024No. 23-40398

9 1252(a)(2)(B)(ii) to preclude judi cial review of DOS’s and USCIS’s retrogression hold policies, which are pr actical 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 pr esent 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 av ailable to applicants in her visa category, the adjudication of her application was delayed. Id . Frustrated by the delay, the petitioner filed suit “s eeking to compel [USCIS] to adjudicate her I-485 application for adjust ment 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 onlyfinal, 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 adjudicati ve 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 immigrat ion status but also actions taken in the course of the decision-making process —including the pace at which that Case: 23-40398 Document: 56-1 Page: 9 Date Filed: 04/09/2024No. 23-40398

10 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 le ft to its discretion, with “no clear mandate” requiring USCIS to ac t 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 renderan adjustment decisi on and the timing of those acts are determined by the Attorney General in his discretion, and that discretionary action cannot be re viewed 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 effe ctuated through discrete acts by DOS and USCIS, informed by these regulati ons. For instance, DOS amends the Visa Bulletin to establish a new Fina l Action Date, and USCIS decides to delay adjudicating the app lications or, in other word s, 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 thatdecision constitu ted an “action” for purposes of § 1252(a)(2)(B)(ii)). Thes e regulations, and the conduct they direct DOS and USCIS to undertake, ar e therefore “action[s] of the Attorney General ... the authority for which is spec ified under this subchapter to be in the discretion of the Attorney Gene ral[.]” 8 U.S.C. § 1252(a)(2)(B)(ii). Although Bian was later vacated beca use a visa number became available to the petitioner and the case was rend ered moot, we find its reasoning persuasive. Case: 23-40398 Document: 56-1 Page: 10 Date Filed: 04/09/2024No. 23-40398

11 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-matte r 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 Un ited States on temporary work visas to lawful permanent residents. Id . at 772. The plaintiffs’ priority dates retrogressed, and USCIS delayed adjudi cation of their applications as a result. Id . at 772–73. The plaintiffs sued USCIS under the APA, seeking to compel it to promptly re nder a decision with resp ect 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 Genera l’s discretionary decisions about the status adjustment process under § 1255(a), like the [retrogression hold policies].” Id . at 776. We find the Eighth Ci rcuit’s analysis persuasive and agree with its conclusion. Appellants argue that § 1252(a)(2)(B)(i i) does not apply here because the statute’s title indicates that it wa s 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 ca n 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 circ uits 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 Case: 23-40398 Document: 56-1 Page: 11 Date Filed: 04/09/2024No. 23-40398

12 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 applic ation for adjustment of status from student visa holder to l awful 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 proceed ings 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. Mala y. Int’l Shipping Corp. , 549 U.S. 422, 436 (2007)). Because § 1252(a)(2)(B)(ii) prec ludes 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 USCI S’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. Case: 23-40398 Document: 56-1 Page: 12 Date Filed: 04/09/2024