United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 29, 2021 Decided August 17, 2021

No. 20-5079

SELVIN LEONARDY SOLIS MEZA,

APPELLANT

v.

TRACY RENAUD, ACTING DIRECTOR, UNITED STATES 

CITIZENSHIP AND IMMIGRATION SERVICES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-01322)

Geoffrey Forney argued the cause for appellant. With him 

on the briefs was Bradley B. Banias.

Mary L. Larakers, Trial Attorney, U.S. Department of 

Justice, argued the cause for appellee. With her on the briefs 

were Brian M. Boynton, Acting Assistant Attorney General, 

and Elianis N. Perez, Assistant Director. R. Craig Lawrence

and Marsha W. Yee, Assistant U.S. Attorneys, entered 

appearances.

Before: TATEL, MILLETT, and KATSAS, Circuit Judges.

Opinion for the Court filed Circuit Judge KATSAS.
2

KATSAS, Circuit Judge: Seeking an adjustment of status 

from the United States Citizenship and Immigration Services, 

Selvin Solis Meza contends that he is an arriving alien—a 

question resolved against him in a prior removal proceeding. 

This case presents the question whether the Immigration and 

Nationality Act barred the district court from considering 

Meza’s argument. 

I

A

The INA governs the removal of aliens from the United 

States. It provides that an alien is inadmissible if he is “present 

in the United States without being admitted or paroled” or if he 

arrived in the United States “at any time or place other than as 

designated by the Attorney General.” 8 U.S.C. 

§ 1182(a)(6)(A)(i).

1

 The INA makes inadmissible aliens 

removable. Id. §§ 1227(a)(1)(A), 1229a(e)(2).

To commence removal proceedings, the government must 

issue the alien a “notice to appear” at a removal hearing. 8 

U.S.C. § 1229(a)(1). This notice must inform the alien of the 

charges against him and the time and place of the hearing. Id.

§ 1229(a)(1)(D), (G)(i). If the alien does not attend the

hearing, an immigration judge may order him removed in 

absentia upon finding “clear, unequivocal, and convincing 

evidence” that the alien had notice of the hearing and is 

removable. Id. § 1229a(b)(5)(A). 

1 When Meza entered the country, the Attorney General was 

responsible for designating times and places of arrival. The

Homeland Security Act of 2002 later transferred this authority to the 

Secretary of Homeland Security, though the INA still refers to the 

Attorney General. See 6 U.S.C. § 251(2).
3

Section 1252 of Title 8 provides for judicial review of final 

removal orders. As relevant here, it states that “a petition for 

review filed with an appropriate court of appeals in accordance 

with this section shall be the sole and exclusive means for 

judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). 

Such a petition must be filed within 30 days of the removal 

order, in the court of appeals for the judicial circuit where the 

removal proceeding was conducted. Id. § 1252(b)(1), (2). 

Section 1252 further provides that such a petition is the sole 

means for obtaining judicial review of “questions of law and 

fact ... arising from any action taken or proceeding brought to 

remove an alien.” Id. § 1252(b)(9).

B

The Secretary of Homeland Security may adjust the status 

of aliens who have been “admitted or paroled” into the United 

States to that of a lawful permanent resident. 8 U.S.C. 

§ 1255(a) (authority of Attorney General); see 6 U.S.C. 

§ 271(b)(1) (transfer of authority to the Secretary). Admission 

occurs when an immigration officer inspects the alien and 

authorizes him to enter the United States. 8 U.S.C.

§ 1101(a)(13)(A). Parole occurs when an immigration officer 

allows an alien into the United States “temporarily ... for 

urgent humanitarian reasons or significant public benefit.” Id.

§ 1182(d)(5)(A). The Secretary may adjust the status of 

admitted or paroled aliens “in his discretion and under such 

regulations as he may prescribe.” Id. § 1255(a).

The regulations provide for immigration judges or USCIS

to adjudicate applications for status adjustment. Immigration 

judges have exclusive jurisdiction over any application filed by 

an alien “who has been placed in ... removal proceedings (other 

than as an arriving alien).” 8 C.F.R. § 1245.2(a)(1)(i). USCIS 

has jurisdiction over all other applications, including those 
4

filed by aliens placed in removal proceedings as arriving aliens. 

Id. § 245.2(a)(1). As relevant here, an arriving alien is “an 

applicant for admission coming or attempting to come into the 

United States at a port-of-entry.” Id. § 1.2.

C

In 2002, the Immigration and Naturalization Service 

served on Meza a notice to appear at a removal hearing in 

Atlanta, Georgia. The notice charged that Meza is not a United 

States citizen, that he entered the country “at or near 

Brownsville, Texas,” and that he was “not then admitted or 

paroled after inspection by an Immigration Officer.” App. 34. 

In a supporting document, the INS stated that Meza had been 

apprehended by an agent who observed him “wading the Rio 

Grande River into the United States,” thus entering the country

“illegally at a point not designated by the U.S. Attorney 

General.” Id. at 28–29; see also id. at 29 (agent recounting that 

Meza “crossed into the U.S. by using a tire tube”).

An immigration judge ordered Meza removed in absentia. 

The judge found that Meza was removable “as charged”

because documentary evidence “established the truth of the 

factual allegations in the Notice to Appear.” App. 33. Meza 

neither appeared at his removal hearing nor filed a timely 

petition for review in the Eleventh Circuit. But he did remain 

in the United States.

In 2017, Meza applied to USCIS for an adjustment of his 

status. USCIS denied the application for lack of jurisdiction. 

In its view, because Meza had been placed in a removal 

proceeding and was not an arriving alien, the immigration 

courts had exclusive jurisdiction over the application.

Meza challenged this decision in federal district court. He 

argued that USCIS was required to review his application 
5

because he was an arriving alien. To support that claim, he 

pointed to a checkbox on his notice to appear that labeled him 

as such. He further alleged that immigration officers had 

paroled him into the United States.

The district court held that it lacked jurisdiction to review 

USCIS’s decision because Meza had not exhausted his 

administrative remedies. Meza v. Cuccinelli, 438 F. Supp. 3d 

25, 34–35 (D.D.C. 2020). We have jurisdiction over Meza’s 

appeal under 28 U.S.C. § 1291.

II

We review de novo the legal question whether the district 

court had jurisdiction. See Am. Hosp. Ass’n v. Azar, 895 F.3d 

822, 825 (D.C. Cir. 2018). On de novo review, we generally 

may affirm on any ground supported by the record. See, e.g., 

Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009). And 

although we must decide jurisdictional questions before merits 

ones, we may consider jurisdictional questions in any order that 

we deem prudent. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 

574, 584–85 (1999). The district court held that it lacked 

jurisdiction because Meza had failed to exhaust administrative 

remedies. We affirm on the alternative ground that section 

1252 divested the court of jurisdiction.

Section 1252 establishes the scheme for judicial review of 

final removal orders. Section 1252(a)(5) provides that a

petition for review, timely filed in the appropriate court of 

appeals, is the “sole and exclusive means for judicial review of 

an order of removal.” There is one exception, for certain 

system-wide challenges to written rules governing expedited 

removal, see 8 U.S.C. § 1252(e)(3), but it does not apply here. 

Section 1252(b)(9) extends the exclusivity rule to questions 

arising from any removal proceeding, then makes it a 

jurisdictional bar. First, section 1252(b)(9) provides that 
6

“[j]udicial review of all questions of law and fact ... arising 

from any action taken or proceeding brought to remove an alien 

from the United States under this subchapter shall be available 

only in judicial review of a final order under this section.” 

Then, it states that, except as provided in section 1252 itself, 

“no court shall have jurisdiction ... to review such an order or 

such questions of law or fact.” The dispositive question here 

is whether Meza seeks judicial review of a question “arising 

from” his removal proceeding. We conclude that he does.

In our view, section 1252(b)(9) prevents an alien from relitigating, outside the context of a petition for review, a 

question decided against him in the removal proceeding. In 

ordinary usage, an issue decided in a proceeding arises from 

the proceeding. See Arise, Black’s Law Dictionary (7th ed. 

1999) (“To originate; stem (from)”). Moreover, section 

1252(a)(5) covers “review of an order of removal,” while 

section 1252(b)(9) separately covers review of “questions of 

law and fact ... arising from” removal proceedings. Given that 

statutory structure, we must construe the latter phrase to extend 

beyond the former. Meza’s only contention about the scope of 

section 1252(b)(9)—that it applies only where an alien seeks to 

set aside the removal order itself—is thus mistaken.

In the district court, Meza sought review of USCIS’s 

decision refusing to consider his application for adjustment of

status. That decision was correct if Meza was placed in 

removal proceedings and was not an arriving alien. See 8 

C.F.R. §§ 245.2(a)(1), 1245.2(a)(1)(i). It is undisputed that 

Meza was placed in removal proceedings in 2002, though he 

was never removed. So the dispositive issue below was 

whether Meza was an arriving alien. USCIS concluded that he 

was not. And Meza, to obtain relief in the district court, had to 

show that he was.
7

The immigration judge decided this issue adversely to 

Meza in his removal proceeding. As relevant here, an “arriving 

alien” is “an applicant for admission coming or attempting to 

come into the United States at a port-of-entry.” 8 C.F.R. § 1.2. 

The immigration judge ordered Meza removed “on the charge 

contained in the Notice to Appear,” App. 33, namely that Meza 

was subject to removal under section 212(a)(6)(A)(i) of the 

INA, App. 34. That provision applies to aliens who are 

“present in the United States without being admitted or paroled, 

or who arrive[] in the United States at any time or place other 

than as designated by the Attorney General.” 8 U.S.C. 

§ 1182(a)(6)(A)(i). An arriving alien is not “present in the 

United States,” because, under longstanding principles of 

immigration law, an alien arriving at a port of entry is “to be 

regarded as stopped at the boundary line and kept there unless 

and until h[is] right to enter should be declared.” Kaplan v. 

Tod, 267 U.S. 228, 230 (1925); see also DHS v. Thuraissigiam, 

140 S. Ct. 1959, 1982 (2020). Likewise, an arriving alien has 

not arrived at an undesignated “time or place,” because ports 

of entry are places designated for lawful entry. 8 C.F.R. 

§ 235.1(a). Thus, by ordering Meza removed under section 

1182(a)(6)(A)(i), the immigration judge necessarily decided 

that Meza was not an arriving alien.

The factual allegations in the notice, and the evidence 

supporting them, confirm this conclusion. The immigration 

judge concluded that “documentary evidence ... established 

the truth of the factual allegations contained in the Notice to 

Appear.” App. 33. The notice alleged that Meza “arrived in 

the United States at or near Brownsville, Texas,” id. at 34, 

rather than at a specific point of entry. And a supporting 

document recounted that a border patrol officer had caught 

Meza coming into the United States by using a tire tube to wade 

across the Rio Grande—which, of course, is not a place 

designated for lawful entry.
8

Meza makes two arguments for why he is an arriving alien. 

Both challenge the immigration judge’s determination that 

Meza was not an arriving alien and was removable.

First, Meza argues that he was paroled into the United 

States, and he invokes decisions holding that paroled aliens are 

arriving aliens. See, e.g., Zheng v. Gonzales, 422 F.3d 98, 110–

11 (3d Cir. 2005). But the immigration judge ordered Meza

removed based on the charge and factual allegations in the 

notice to appear, which repeatedly stated that Meza was neither 

admitted nor paroled into the United States.

Second, Meza points to a checkbox on the notice to appear, 

which labels him an arriving alien. But in ordering Meza 

removed, the immigration judge necessarily concluded 

otherwise, based on other portions of the notice and the 

evidence before him. As to the notice itself, in the blank space 

for factual allegations, the issuing officer wrote out that Meza

“arrived in the United States at or near Brownsville, Texas, on 

or about April 23, 2002” and was “not then admitted or paroled 

after inspection by an Immigration Officer.” App. 34. 

Likewise, in the blank space for the formal charge, the officer 

wrote out that Meza was subject to removal under section 

“212(a)(6)(A)(i) of the Immigration and Nationality Act, as 

amended,” because he was “an alien present in the United 

States without being admitted or paroled, or who arrived in the 

United States at any time or place other than as designated by 

the Attorney General.” Id. To be sure, the officer also checked 

the box next to the pre-written statement “[y]ou are an arriving 

alien.” Id. To decide the removal question, the immigration 

judge had to consider the elements of section 212(a)(6)(A)(i), 

the entirety of the notice to appear, and the evidence about the 

Rio Grande crossing. In doing so, and in finding Meza 

removable despite the box-check, the immigration judge 

necessarily treated it as a mistake.
9

To succeed in this case, Meza must show that he was an 

arriving alien, even though the immigration judge concluded 

otherwise. Meza thus seeks to contest a question of fact arising 

from his removal proceeding, which he could have done only 

by filing a timely petition for review of his removal order in the 

Eleventh Circuit. Under section 1252(b)(9), the district court 

lacked jurisdiction to consider what is in effect a collateral 

attack on findings made in his final removal order.

2

Affirmed.

2 Given our disposition under section 1252(b)(9), we need not 

address whether other provisions in section 1252 independently 

barred judicial review in this case. We also need not address whether 

the district court was correct to conclude that review in this case was 

barred because Meza had failed to exhaust available administrative 

remedies.