[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10835

Non-Argument Calendar

____________________

ADRIAN MOJICA MORALES, 

Plaintiff-Appellant,

versus

ACTING SECRETARY, UNITED STATES DEPARTMENT 

OF HOMELAND SECURITY, 

DIRECTOR, NEBRASKA SERVICE CENTER, U.S. 

CITIZENSHIP AND IMMIGRATION SERVICES, 

ACTING DIRECTOR, U.S. CITIZENSHIP AND 

IMMIGRATION SERVICES, 

ACTING DIRECTOR OF U.S. IMMIGRATION AND 

CUSTOMS ENFORCEMENT, 

ACTING MIAMI FIELD OFFICE DIRECTOR, U.S. 

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CITIZENSHIP AND IMMIGRATION SERVICES, 

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:20-cv-14220-AMC

____________________

Before LUCK, LAGOA, and HULL, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Adrian Mojica Morales appeals the district court’s dismissal of his complaint seeking judicial review of the 

Department of Homeland Security’s (“DHS”) termination of his

status under the Deferred Action for Childhood Arrivals program

(“DACA”). Mojica Morales sued under the Administrative Procedure Act (“APA”). The district court dismissed his complaint for 

lack of subject matter jurisdiction and, alternatively, based on collateral estoppel.

After review, we conclude that the district court had subject 

matter jurisdiction over Mojica Morales’s complaint, but we affirm 

because his complaint failed to state a claim.

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21-10835 Opinion of the Court 3

I. OVERVIEW OF DACA 

On June 15, 2012, then-Secretary of DHS Janet Napolitano 

announced the program now known as DACA. DACA makes 

available “deferred action”—a non-binding decision to forbear 

from seeking one’s removal—to certain young people brought to 

this country as children. DHS administers its DACA program 

through Immigration and Customs Enforcement (“ICE”) and the 

United States Citizenship and Immigration Services (“USCIS”).

DHS’s “DACA Memorandum instructs [ICE] to exercise 

prosecutorial discretion on an individual basis . . . by deferring action for a period of two years, subject to renewal.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. ___, 140 S. Ct. 

1891, 1902 (2020) (quotation marks and brackets omitted). It also 

“directs [USCIS] to accept applications to determine whether these 

individuals qualify for work authorization during this period of deferred action.” Id. (quotation marks omitted).

After a background check is completed, successful requestors, at the discretion of USCIS, receive deferred immigration action for two years, subject to renewal. USCIS has also provided its 

officers with procedural guidance regarding DACA adjudications 

and terminations through its Standard Operating Procedures 

(“SOP”). The DACA SOP details how and when to terminate a 

noncitizen’s DACA status in different circumstances. Generally,

USCIS officers issue a Notice of Intent to Terminate (“NOIT”) to 

individuals who were mistakenly or wrongfully provided DACA 

status. However, when an individual who already has DACA 

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status is later determined to be an Egregious Public Safety (“EPS”) 

concern, the DACA SOP provides for termination without issuance of a NOIT. 

According to an USCIS Policy Memorandum issued on November 7, 2011, an EPS concern is “a case where information indicates the [noncitizen] is under investigation for, has been arrested 

for (without disposition), or has been convicted of” certain offenses. Those offenses include “[c]rimes of violence for which the 

term of imprisonment imposed, or where the penalty for a pending 

case, is at least one year as defined in section 101(a)(43)(F) of the 

INA.” That EPS definition is used by both ICE and USCIS.

With this DACA background, we examine Mojica Morales’s 

appeal.

II. FACTUAL BACKGROUND 

In October 2002, Mojica Morales, a Mexican citizen, was 

brought at age two from Mexico to the United States without inspection. Since his arrival, he has resided in Indian River County, 

Florida. 

On January 24, 2018, USCIS approved Mojica Morales’s first

DACA application, providing him with deferred action on removal 

for two years, subject to renewal. Then, on October 24, 2019, 

USCIS approved Mojica Morales’s DACA renewal application. 

Both DACA approval notices issued to Mojica Morales state that 

USCIS and DHS have “the sole discretion” to provide an opportunity for the requestor “to address derogatory information before 

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deferred action is terminated and/or removal proceedings are initiated.”

On April 23, 2020, ICE reported to USCIS that Mojica Morales, along with two others, was recently arrested for kidnapping

and beating a man with a weapon. ICE further reported that

(1) Mojica Morales “planned on feeding [the victim] to alligators,” 

(2) the victim lived in Mojica Morales’s community, and (3) the victim and his family were “terrified.” ICE stated, however, that Mojica Morales was released from the jail before ICE could take him 

into custody.

ICE sent a formal request to USCIS to terminate Mojica Morales’s status under DACA. ICE stated that Mojica Morales was 

determined to be an EPS concern because “he has been charged 

with Kidnapping (Felony) and Aggravated Battery (Felony).”

On May 12, 2020, USCIS Headquarters (“HQSCOPS”) responded to a Request for Adjudicative Guidance regarding Mojica

Morales’s pending charges and ICE’s EPS finding. HQSCOPS 

stated that because “the Aggravated Battery charge would have a 

presumptive minimum sentence of 21 months” and “is a crime of 

violence,” Mojica Morales qualified as an EPS concern under 

DACA guidelines. As such, Mojica Morales’s DACA status could

“be terminated without a NOIT.”

On May 15, 2020, USCIS sent Mojica Morales a Termination 

Notice stating that USCIS had “determined that exercising prosecutorial discretion in your case is not consistent with the 

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Department of Homeland Security’s enforcement priorities.” As 

such, Mojica Morales’s DACA status was “terminated as of the date 

of this notice.”

On June 2, 2020, formal criminal charges were filed against 

Mojica Morales in the Indian River County Circuit Court. The 

charges stated that “[o]n or about April 3, 2020,” Mojica Morales 

and others kidnapped, falsely imprisoned, and battered the victim 

with a knife. 

After Mojica Morales’s DACA status was terminated on May 

15, 2020, ICE issued a Notice to Appear (“NTA”) to Mojica Morales 

to initiate removal proceedings. The NTA, dated June 5, 2020, 

stated that Mojica Morales was a native and citizen of Mexico; he 

arrived in the United States near Laredo, Texas, in 2002; and he was 

not then admitted or paroled with inspection. It charged him as 

removable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i),

because he was present in the United States without being admitted or paroled.

III. PROCEDURAL HISTORY 

A. Case #: 2:20-cv-14206 

On June 23, 2020, Mojica Morales filed a complaint against 

DHS, ICE, and USCIS in the United States District Court for the 

Southern District of Florida. His complaint sought declaratory and 

injunctive relief from the termination of his status under DACA. 

Mojica Morales’s complaint asserted jurisdiction under the APA 

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and the Declaratory Judgment Act (“DJA”) and claimed that DHS’s 

termination of his DACA status was arbitrary and capricious.

Seven days later, on June 30, 2020, the district court sua 

sponte dismissed his complaint for lack of subject matter jurisdiction, stating that neither the APA nor the DJA conferred subject 

matter jurisdiction on federal courts.1

B. Case #: 2:20-cv-14220 

On July 1, 2020, Mojica Morales filed a new complaint

against DHS and the other same respondents, seeking again declaratory judgment and injunctive relief. Mojica Morales’s new complaint asserted identical claims for relief and the same jurisdictional 

grounds. This time though, under the jurisdiction heading in his

new complaint, Mojica Morales added (1) a block quote from the 

Supreme Court’s recent discussion about DACA and APA causes 

of action in Regents, 140 S. Ct. 1891, and (2) a section of the APA 

that applies to review of agency rulemaking. 5 U.S.C. § 702.

The government filed a motion to dismiss under Fed. R. Civ. 

P. 12(b)(1) for lack of subject matter jurisdiction and, alternatively,

under Rule 12(b)(6) for failure to state a claim. Fed. R. Civ. P. 

12(b)(1), 12(b)(6). In its order granting the government’s motion, 

the district court (1) dismissed Mojica Morales’s new complaint for 

1 Although the order does not so indicate, “[a] dismissal for lack of subject 

matter jurisdiction is not a judgment on the merits and is entered without 

prejudice.” Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1235 (11th Cir. 

2021) (quotation marks omitted).

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lack of subject matter jurisdiction, and (2) alternatively found that 

the new complaint was barred by collateral estoppel because Mojica Morales’s prior complaint challenged the identical agency action that the district court previously dismissed on the same 

grounds.2 Mojica Morales timely appealed.

IV. STANDARD OF REVIEW 

We review de novo a dismissal for lack of subject matter jurisdiction. Canal A Media Holding, LLC v. U.S. Citizenship & Immigr. Servs., 964 F.3d 1250, 1255 (11th Cir. 2020). We review the 

district court’s factual findings as to subject matter jurisdiction for 

clear error. Perez v. U.S. Bureau of Citizenship & Immigr. Servs., 

774 F.3d 960, 965 (11th Cir. 2014). We may affirm on any ground 

supported by the record. Am. United Life Ins. Co. v. Martinez, 480 

F.3d 1043, 1059 (11th Cir. 2007).

V. SUBJECT MATTER JURISDICTION 

Rule 12(h)(3) provides that a court must dismiss an action if 

it “determines at any time that it lacks subject-matter jurisdiction.” 

Fed. R. Civ. P. 12(h)(3). Subject matter jurisdiction cannot be 

waived by the parties. First Union Nat’l Bank of Fla. v. Hall, 123 

F.3d 1374, 1378 n.7 (11th Cir. 1997). “A ‘facial attack’ on the complaint requires the court merely to look and see if [the] plaintiff has 

sufficiently alleged a basis of subject matter jurisdiction, and the 

2 The first complaint was filed in the Southern District of Florida and dismissed 

by Judge Robin L. Rosenberg. The new complaint was also filed in the Southern District of Florida but was dismissed by Judge Aileen M. Cannon.

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allegations in his complaint are taken as true for the purposes of the 

motion.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 

(5th Cir. 1980).

The district court correctly noted that the APA does not confer subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 

104–07, 97 S. Ct. 980 (1977). The district court also correctly determined that a claim under the DJA cannot serve as an independent 

basis for federal subject matter jurisdiction. See Skelly Oil Co. v. 

Phillips Petroleum Co., 339 U.S. 667, 671, 70 S. Ct. 876 (1950).

Nonetheless, “[t]he law of this circuit . . . is that ‘where a 

complaint fails to cite the statute conferring jurisdiction, the omission will not defeat jurisdiction if the facts alleged in the complaint 

satisfy the jurisdictional requirements of the statute.’” Arce v. Garcia, 434 F.3d 1254, 1257 n.8 (11th Cir. 2006) (quotation marks omitted). Relevant here, 28 U.S.C. § 1331 provides that “[t]he district 

courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 

28 U.S.C. § 1331. Importantly, this Court has stated, “Although the 

APA independently does not confer subject-matter jurisdiction, 

28 U.S.C. § 1331 confers jurisdiction on federal judges to review 

agency action under federal-question jurisdiction.” Perez, 774 F.3d 

at 965. Therefore, while Mojica Morales’s new complaint did fail 

to cite 28 U.S.C. § 1331, the facts alleged in his new complaint satisfy the jurisdictional requirements of § 1331 because those facts

challenge federal agency action and raise federal questions. See 

Arce, 434 F.3d at 1257 n.8.

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Although there is subject matter jurisdiction to proceed, this 

appeal still presents several issues as to whether the federal agency 

action at issue—termination of an individual’s DACA status—is 

subject to judicial review.

VI. REGENTS AND JUDICIAL REVIEW OF AGENCY’S 

DACA DECISIONS 

Under the APA, courts may “set aside [an] agency action” 

that is “arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” 5 U.S.C. § 706(2)(A). Also under the 

APA, there are two exceptions to the general presumption that 

agency actions are reviewable. See id. § 701(a); Regents, 140 S. Ct. 

at 1905. The first is when a statute expressly “preclude[s] judicial 

review.” 5 U.S.C. § 701(a)(1). The second is when, even though 

Congress has not affirmatively precluded judicial review by statute, 

the “agency action is committed to agency discretion by law.” Id.

§ 701(a)(2).

The Supreme Court has recently provided some guidance as

to judicial review of agency action concerning DACA recipients. In 

2017, then-Acting Secretary of DHS Elaine C. Duke issued a memorandum stating the agency’s intent and plan to terminate the 

DACA program. Regents, 140 S. Ct. at 1903. Multiple groups of 

plaintiffs sued DHS in three different federal district courts, challenging the agency’s rescission of DACA as arbitrary and capricious 

under the APA. Id. Two district courts enjoined the agency’s 

DACA rescission, the third district court vacated the agency action, 

and all three rejected the government’s arguments that the DACA

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claims were (1) unreviewable under the APA, and (2) that the INA 

deprived the court of jurisdiction. Id. at 1903–04. 

The agency appealed all three district court rulings, and the 

United States Solicitor General, on behalf of the agency, filed three 

petitions for certiorari before judgment. Id. at 1905. Before the 

Supreme Court granted the petitions and consolidated the cases, 

the Ninth Circuit affirmed the Northern District of California’s ruling. See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland 

Sec., 908 F.3d 476 (9th Cir. 2018).

In Regents, one issue addressed by the Supreme Court was 

“whether the APA claims are reviewable.” Regents, 140 S. Ct. at

1905. Ultimately, the Supreme Court decided that the agency’s decision to rescind the DACA program was subject to judicial review 

under the APA and that neither exception to APA reviewability applied. Id. at 1905–07.

The Supreme Court in Regents concluded that there was no 

statutory bar to judicial review of the agency’s DACA rescission. 

Id. at 1907. Specifically, the Supreme Court rejected the government’s argument that 8 U.S.C. § 1252(g) precluded judicial review. 

Section 1252(g) bars “any cause or claim by or on behalf of any alien . . . arising from the decision or action . . . to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. 

§ 1252(g). The Supreme Court held that “[t]he rescission [of 

DACA], which revokes a deferred action program with associated 

benefits, is not a decision to ‘commence proceedings,’ much less to 

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‘adjudicate’ a case or ‘execute’ a removal order.” Regents, 140 S. 

Ct. at 1907.

The Regents Court also rejected the government’s argument that 5 U.S.C. § 701(a)(2) barred judicial review of the agency’s 

DACA rescission. Section 701(a)(2) provides that agency action is 

not reviewable if the “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). The government argued that 

DACA was a non-enforcement policy and that “‘an agency’s decision not to prosecute or enforce’ is ‘generally committed to an 

agency’s absolute discretion.’” Regents, 140 S. Ct. at 1906 (quoting 

Heckler v. Chaney, 470 U.S. 821, 831, 105 S. Ct. 1649 (1985)). The 

Supreme Court concluded that because DACA “is more than a 

non-enforcement policy, its rescission is subject to review under 

the APA.” Id. at 1907. The Supreme Court held that “the DACA 

Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an ‘action 

[that] provides a focus for judicial review.’” Id. at 1906 (quoting 

Chaney, 470 U.S. at 832, 105 S. Ct. at 1656). Therefore, “its rescission is subject to review under the APA.” Id. at 1907.

VII. ANALYSIS OF MOJICA MORALES’S DACA 

TERMINATION 

We first conclude that the government has not shown that 

judicial review is barred as to DHS’s decision to terminate Mojica

Morales’s status under DACA. The government relies on both 

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8 U.S.C. § 1252(g) and 5 U.S.C. § 701(a)(2), which we address in 

turn.

A. 8 U.S.C. § 1252(g) 

Section 1252(g) of Title 8 bars judicial review over “any 

cause or claim by or on behalf of any alien arising from the decision 

or action . . . to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g).

As stated above, the Regents Court held that § 1252(g) did 

not apply to the agency’s rescission of the DACA program because 

revoking a deferred action program with associated benefits was 

not a “decision to commence proceedings, much less to adjudicate 

a case or execute a removal order.” Regents, 140 S. Ct. at 1907. 

We recognize that Regents dealt with DHS’s decision to terminate 

the entire DACA program, whereas this case concerns an individual determination to terminate DACA status. While Regents is not 

squarely on point, Regents is sufficiently similar for us to conclude

(1) that the May 15 termination of Mojica Morales’s DACA status 

is not a “decision to commence proceedings, much less adjudicate 

a case or execute a removal order,” and (2) that § 1252(g) does not 

apply to DHS’s termination of Mojica Morales’s status under 

DACA. Indeed, the NTA, issued June 5, 2020, is the “decision or 

action . . . to commence proceedings, adjudicate cases, or execute 

removal orders” that § 1252(g) refers to.

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B. 5 U.S.C. § 701(a)(2) 

As noted earlier, 5 U.S.C. § 701(a)(2) precludes judicial review of agency action that is committed to agency discretion by 

law. 5 U.S.C. § 701(a)(2).

The Supreme Court has held that 5 U.S.C. § 701(a)(2) applies 

to an agency’s discretionary enforcement decisions. Chaney, 470 

U.S. 831–32. However, as outlined above, the Regents Court held 

that DHS’s DACA program was “not simply a non-enforcement 

policy,” and therefore was not subject to § 701(a)(2). Regents, 140 

S. Ct. at 1905–06. Again, we recognize that this appeal concerns 

DHS’s termination of an individual’s DACA status through USCIS 

and ICE, not DHS’s rescission of the entire DACA program. But

without more here, we see no reason to deviate from the Regents

Court’s guidance as to judicial review of the same agency’s DACA

decision on that basis.

Given judicial review is not barred, we next examine 

whether Mojica Morales’s new complaint states a claim.

VIII. FAILURE TO STATE A CLAIM 

Under Rule 12(b)(6), the defendant may move to dismiss a 

complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6). To 

prevent dismissal under Rule 12(b)(6), the plaintiff must allege sufficient facts to state a claim for relief that is “plausible on its face.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955

(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference 

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that the defendant is liable for the misconduct alleged.” Ashcroft 

v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009). However, 

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” and courts 

need not accept conclusory statements as true. Id.

Mojica Morales claims that DHS’s decision to terminate his 

status under DACA was arbitrary and capricious. As outlined 

above, DHS terminated Mojica Morales’s DACA status without 

first issuing a NOIT because he was determined to be an EPS concern due to his arrest for kidnapping and aggravated battery. An 

individual is an EPS concern if “[the noncitizen] is under investigation for, has been arrested for (without disposition), or has been 

convicted of” certain offenses, including “[c]rimes of violence for 

which the term of imprisonment imposed, or where the penalty 

for a pending case, is at least one year as defined in section 

101(a)(43)(F) of the INA.” If an individual is found to be an EPS 

concern, the DACA SOP states that issuance of a NOIT is not required.3

Here, in his new complaint, Mojica Morales admits he was 

charged with having committed kidnapping, false imprisonment, 

and aggravated battery. Mojica Morales even attached the official 

charging documents against him. All of this is entirely consistent 

with ICE’s report to USCIS on April 23, 2020, which stated that 

3 We are applying the guidance provided in the DACA SOP, and Mojica Morales does not challenge DHS’s authority to issue the DACA SOP.

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Mojica Morales was an EPS concern because he was in jail for kidnapping and beating a man with a weapon. So, the only question 

is whether aggravated battery is a crime of violence.

Section 101(a)(43)(F) of the INA defines a “crime of violence” the same way that term is defined in 18 U.S.C. § 16. INA 

§ 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Section 16 states that a 

crime of violence includes “an offense that has as an element the 

use, attempted use, or threatened use of physical force against the 

person or property of another.” 18 U.S.C. § 16(a).

Under Florida law, a person commits aggravated battery

when, during the commission of committing a battery, he “[i]ntentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement” or “[u]ses a deadly weapon.” Fla. 

Stat. § 784.045(1)(a). Aggravated battery is a second-degree felony 

punishable by up to 15 years in prison. Id. §§ 784.045(2); 

775.082(3)(d). This Court has held that § 784.045(1)(a) is a “crime 

of violence” as defined in 18 U.S.C. § 16(a). Lukaj v. U.S. Att’y 

Gen., 953 F.3d 1305, 1312 (11th Cir. 2020).

In sum, Mojica Morales was charged with aggravated battery, which is a crime of violence that carries a minimum prison 

term of over one year, and he has failed to allege any facts to 

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support his claim that it was arbitrary and capricious for DHS to 

terminate his DACA status.4 Accordingly, we affirm.

AFFIRMED. 

4 Given this ruling, we need not address Mojica Morales’s collateral estoppel 

arguments.

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