United States Court of Appeals

for the Fifth Circuit

No. 19-30646

Josue Benavides Nolasco, 

Plaintiff—Appellant,

versus

Stanley Crockett, Field Office Director, New Orleans Field 

Office, U.S. Citizenship and Immigration Services; U.S. 

Citizenship and Immigration Services, 

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-7101

ON PETITION FOR PANEL REHEARING

Before Jolly, Jones, and Engelhardt, Circuit Judges.

E. Grady Jolly, Circuit Judge:

The petition for panel rehearing is hereby GRANTED.

Since the prior opinion issued, the Supreme Court decided Nasrallah 

v. Barr, 140 S. Ct. 1683 (2020), which clarified the meaning of the statutory 

term “final order of removal.” Without expressing an opinion as to whether 

Nasrallah may have partially abrogated portions of Cardoso v. Reno, 216 F.3d 

United States Court of Appeals

Fifth Circuit

FILED

October 23, 2020

Lyle W. Cayce

Clerk

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512 (5th Cir. 2000), the opinion we earlier relied on, we have chosen not to 

base our decision on Cardoso. Just last year, in Melendez v. McAleenan, 928 

F.3d 425 (5th Cir.), cert. denied, 140 S. Ct. 561 (2019), this court decided a 

case both factually and procedurally reflective of the case at bar. We find

Melendez the guiding precedent to decide this appeal.

Accordingly, we WITHDRAW the court’s prior opinion of May 6, 

2020, and the following opinion is substituted therefor.

OPINION

Josue Benavides Nolasco seeks review of USCIS’s legal 

determination declaring him ineligible for adjustment to permanent status. 

Although he has been granted Temporary Protected Status (TPS), he had 

entered the United States illegally, which would ordinarily bar the

adjustment he seeks. He appeals the district court’s dismissal for lack of 

jurisdiction over his claim. We reverse the district court’s holding that it 

lacked jurisdiction, but asserting our jurisdiction over his claim, hold that his 

claim has no merit. We therefore dismiss the complaint with prejudice. 

I.

Appellant Josue Benavides Nolasco is a national and citizen of El 

Salvador. In 1997, he entered the United States unlawfully. But in 2002, the 

government granted him TPS, which means, among other things, that he is 

legally entitled to live and work in the United States until his TPS is 

withdrawn. See 8 U.S.C. § 1254a. In 2014, Nolasco sought to have his status 

adjusted to become a permanent resident. Because he had entered the 

country illegally, Nolasco’s request was denied; the government determined 

that he had not been “inspected and admitted or paroled” into the United 

States as required for the adjustment he seeks. See 8 U.S.C. § 1255(a).

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Nolasco argues that the government’s grant of TPS served to inspect 

and admit or parole him into the United States, rendering his illegal entry 

irrelevant. Indeed, this proposition is not unfounded, as it is the law in 

several other circuits.1

 Seeking to challenge the government’s legal 

interpretation—not the denial of his application itself—but unable to appeal

within the immigration system,2 Nolasco brought this suit in federal district 

court under several statutes, including the Administrative Procedure Act, 5 

U.S.C. §§ 701–706. The government moved to dismiss Nolasco’s claims. It

argued that 8 U.S.C. § 1252(a)(2)(B)—a statute that removes some 

immigration decisions from the ambit of judicial review—stripped the 

district court of jurisdiction. The district court agreed and dismissed 

Nolasco’s case under Federal Rule of Civil Procedure 12(b)(1). Nolasco has 

properly appealed.

II.

As mentioned above, Nolasco’s journey treads the path of another 

litigant before this court, Oscar Ernesto Melendez. Melendez v. McAleenan, 

928 F.3d 425 (5th Cir. 2019). Like Nolasco, after spending time illegally 

present in the United States, Melendez applied for and received TPS. Id. at 

426. Several years later, Melendez filed an application for adjustment of 

status, which was denied by the government because of a legal determination 

1 Ramirez v. Brown, 852 F.3d 954, 961 (9th Cir. 2017); Flores v. U.S. Citizenship & 

Immigration Servs., 718 F.3d 548, 553–54 (6th Cir. 2013). But see Sanchez v. Sec'y United 

States Dep't of Homeland Sec., 967 F.3d 242, 251 (3d Cir. 2020); Serrano v. U.S. Atty. Gen., 

655 F.3d 1260, 1265 (11th Cir. 2011) (reaching the opposite conclusion).

2 8 C.F.R. § 245.2(a)(5)(ii) provides that “[n]o appeal lies from the denial of an 

application” for adjustment of status, but “the applicant . . . retains the right to renew his 

or her application in [removal] proceedings.” However, Nolasco cannot be placed in 

removal proceedings as the government “shall not remove” him or others with TPS 

“during the period in which such status is in effect.” 8 U.S.C. 1254a(a)(1)(A).

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that his time spent illegally present in the United States rendered him 

ineligible for an adjustment—again, just like Nolasco. Id. And analogous to 

Nolasco, Melendez filed an APA suit, challenging the legal determination of

his ineligibility for an adjustment of status, but he did not challenge the actual 

denial of an adjustment itself. Id.

In Melendez’s case, the district court dismissed his claims for lack of 

jurisdiction. On appeal, this court reversed, holding that 8 U.S.C. § 

1252(a)(2)(B) precludes courts from reviewing only certain discretionary 

immigration decisions, but not legal determinations. Id. (citing MirelesValdez v. Ashcroft, 349 F.3d 213, 215–16 (5th Cir. 2003)). We said that 

nondiscretionary decisions, such as statutory interpretation and other “pure 

legal task[s],” do not involve the “review of an [adjustment of status 

application] decision on the merits[.]” Akhtar v. Gonzales, 450 F.3d 587, 592 

(5th Cir. 2006). These nondiscretionary decisions are “distinct” and

therefore may be reviewed by the courts. Id.3

 The Melendez court went on 

to hold that Melendez challenged “a nondiscretionary decision based on the 

finding he was statutorily ineligible, making Section 1252(a)(2)(B)(i)’s 

jurisdictional bar inapplicable.” Melendez, 928 F.3d at 426–27.

We follow Melendez in holding that Nolasco sought review of the 

government’s legal interpretation of statutory provisions that govern TPS 

and adjustment of status. See 8 U.S.C. §§ 1254a, 1255(a). Since this is a 

3 Although language in Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir. 2008), may 

appear unclear on whether our review distinguishes between discretionary and 

nondiscretionary decisions for purposes of jurisdiction, the distinction is preserved; the 

Ayanbadejo court simply found that one of the questions the plaintiffs presented as a legal 

determination was actually a question of fact. See id. at 277 n.11 (“Although the 

Ayanbadejos argue that USCIS’s basis for refusing to adjust John’s status was a legal 

conclusion that a non-viable marriage precluded the change-in-status John requested, 

USCIS’s predicate determination of whether the Ayanbadejos had a bona fide marriage 

was a question of fact, not law . . . .”).

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“pure legal task,” it is a nondiscretionary decision that is not barred by the 

jurisdiction-stripping statute. The district court thus erred.

4 We do have

jurisdiction to address Nolasco’s claims and proceed further to decide this 

appeal.

III.

Melendez continues to be our guide. In Melendez, the government had

moved for dismissal at the district court based on lack of jurisdiction and

failure to state a claim, each of which Melendez contested. Id. at 426. In 

ruling on these arguments, the district court acknowledged both bases for 

dismissal but only held that there was no jurisdiction, dismissing under 

Federal Rule of Civil Procedure 12(b)(1). Id. It did not reach the Rule 

12(b)(6) claim. Id. On appeal, the government and the petitioner each

renewed their respective arguments. Id. at 427.

After deciding that the district court did in fact have jurisdiction—and 

acknowledging that the “ruling by the district court was based on 

jurisdiction”—the Melendez panel noted that it was “free to uphold the . . . 

[district court’s] judgment on any basis that is supported by the record.” Id.

at 427 (quoting Zuspann v. Brown, 60 F.3d 1156, 1160 (5th Cir. 1995)). 

Because the Rule 12(b)(6) issue had been litigated, the court proceeded to 

decide whether Melendez had stated a claim. Id. Cf. Trinity Marine Prod., 

Inc. v. United States, 812 F.3d 481, 486 (5th Cir. 2016) (stating that a court 

need not reverse a matter decided under Federal Rule of Civil Procedure 

12(b)(1) “where a remand would only require a new Rule 12(b)(6) label for 

the same Rule 12(b)(1) conclusion”). That analysis began by reviewing 

4 We should note that the district court did not have the benefit of Melendez when 

it was ruling on the government’s motion to dismiss, as Melendez was not published until 

later in the same month.

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Melendez’s claims de novo. Melendez, 928 F.3d at 427. After the panel 

accepted all well-pled facts as true and viewed all facts in the light most 

favorable to the plaintiff, the court noted that for Melendez, the only issue in 

dispute was a legal one: whether, notwithstanding his earlier time illegally 

present in the United States, TPS could serve to “inspect and admit or 

parole” him into this country, thus rendering him eligible for adjustment to 

permanent status. Id. Finding that the grant of TPS plainly did not cure his 

illegal entry according to the terms of the statute, the court held that 

“[c]onsequently, as a matter of law, Melendez failed to state a claim upon 

which relief can be granted.” Id. at 429. The decretal language confirmed 

the case’s holding, vacating the district court’s judgment that there was no 

jurisdiction and entering judgment that the complaint, seeking eligibility for 

adjustment of status, be dismissed with prejudice (as it failed to state a claim). 

Id. In short, the grant of TPS status did not cure his ineligibility.

We again let Melendez guide our analysis. Here, before the district 

court, the government also moved for dismissal based on lack of jurisdiction 

and also on failure to state a claim; here, Nolasco responded to both of those 

arguments. The district court acknowledged both arguments and dismissed

the case on jurisdictional grounds under Rule 12(b)(1). On this appeal, 

Nolasco renewed his contention that he had meritorious claims; the 

government argued, in the alternative, that the district court’s ruling should 

be upheld on Rule 12(b)(6) grounds. With the same procedural background 

in place, we make the same choice that the Melendez court made and decide 

this case on Rule 12(b)(6) grounds. The sole issue Nolasco presents for our 

review is a legal one, and Melendez clearly states that TPS does not create a 

“fictional legal entry” for those who first made their way into this country 

illegally. Melendez, 928 F.3d at 427–29. Therefore, Nolasco fails to state a 

claim upon which relief can be granted, and his suit must be dismissed.

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IV.

In this opinion, we have held that the result in this appeal is dictated 

by our precedent in Melendez. We have applied Melendez to determine that 

the district court did in fact have jurisdiction to hear Nolasco’s claims. We 

have further applied Melendez to hold that Nolasco has failed to state a legally 

cognizable claim. Those with TPS who first entered the United States

unlawfully are foreclosed from applying for adjustment of status as a matter 

of law.

The judgment of the district court concluding there was no 

jurisdiction is therefore VACATED. We hold that the complaint be

DISMISSED WITH PREJUDICE and REMAND for judgment to be 

entered accordingly.

DISMISSED and REMANDED for entry of judgment.

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