[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-11193

________________________

D.C. Docket No. 1:18-cv-24027-CMA

CANAL A MEDIA HOLDING, LLC,

ERICK ARCHILA,

 Plaintiffs-Appellants,

versus

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al.,

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 8, 2020)

Before MARTIN and NEWSOM, Circuit Judges, and WATKINS,

* District Judge.

MARTIN, Circuit Judge:

* Honorable W. Keith Watkins, United States District Judge for the Middle District of 

Alabama, sitting by designation.

Case: 19-11193 Date Filed: 07/08/2020 Page: 1 of 17
2

Plaintiffs Canal A Media Holding, LLC (“Canal A Media”) and Erick 

Archila appeal the District Court’s dismissal of their amended complaint for lack 

of subject-matter jurisdiction. They seek to challenge the decision by the United 

States Citizenship and Immigration Services (“USCIS”) to deny Canal A Media’s 

petition for a work visa for Mr. Archila. Having carefully reviewed this case, and 

with the benefit of oral argument, we have decided that the denial of Canal A 

Media’s visa petition was final agency action under the Administrative Procedure 

Act (“APA”). Also, we hold that 8 U.S.C. § 1252(b)(9) and (g) do not bar the 

Plaintiffs’ challenge to the visa petition denial. In keeping with these decisions, we

reverse the District Court’s dismissal of the Plaintiffs’ claims.

I.

A. FACTUAL BACKGROUND

On appeal of a district court’s grant of the motion to dismiss, our Court must

accept the factual allegations in the plaintiffs’ pleadings as true and construe them 

in the light most favorable to the plaintiffs. Perez v. USCIS, 774 F.3d 960, 964 

(11th Cir. 2014) (per curiam).

Established in 2006, Canal Antigua, S.A. (“Canal Antigua”) is a major news 

and entertainment media company in Guatemala. In 2016, Canal Antigua formed a 

wholly owned U.S.-based subsidiary, Canal A Media, as part of an effort by Canal 

Antigua to reach Spanish-speaking Central Americans in the U.S. media market.

Case: 19-11193 Date Filed: 07/08/2020 Page: 2 of 17
3

Canal Antigua wanted its president, Erick Archila, to serve as president of 

Canal A Media. Mr. Archila, a Guatemalan national, is not a U.S. citizen. On 

November 25, 2016, Canal A Media filed with USCIS a Form I-129 Petition for a 

Nonimmigrant Worker (“I-129”) on behalf of Mr. Archila. An I-129 is the first 

step on the road to an “L-1A” visa, which allows a multinational corporation to 

transfer one of its “managerial” or “executive” employees to a branch, “affiliate,” 

or “subsidiary” of that company located in the United States. See 8 U.S.C. 

§ 1101(a)(15)(L); 8 C.F.R. § 214.2(l)(1)(i), (2)(i). At that time, Mr. Archila was 

already lawfully present in the United States on a “B-2” visitor visa. The I-129 

thus requested that USCIS change Mr. Archila’s status from B-2 to L-1A.

After Canal A Media submitted the I-129, the Department of Homeland 

Security (“DHS”) initiated removal proceedings against Mr. Archila, charging him 

with removability for overstaying his B-2 visa. Mr. Archila then filed an 

application for asylum before the immigration judge (“IJ”) in charge of his 

removal proceedings. Mr. Archila is still in removal proceedings and his asylum 

application remains pending with the IJ. 

USCIS denied Canal A Media’s I-129 on July 24, 2017. The denial was 

based on USCIS’s finding that Canal A Media failed to establish a subsidiary 

relationship with Canal Antigua, as required by 8 U.S.C. § 1101(a)(15)(L). The 

agency came to this conclusion “because there was no ‘evidence of capital 

Case: 19-11193 Date Filed: 07/08/2020 Page: 3 of 17
4

contribution [of Canal Antigua] in exchange for ownership [of Canal A Media].’” 

R. Doc. 36 ¶ 31 (alterations in original) (quoting R. Doc. 36-1 at 4). Even though 

Canal A Media—pursuant to a request by USCIS—submitted evidence seeking to 

establish the agency’s capital-contribution requirement, USCIS rejected this 

evidence because (1) a wire transfer Canal A Media submitted to show that Canal 

Antigua was financing Canal A Media was in Guatemalan currency, not U.S. 

Dollars; (2) the transfer occurred after the date Canal A Media filed the I-129; and 

(3) Canal A Media did not present evidence that Canal Antigua authorized the 

transfer. Id. ¶ 32; see id. ¶ 28.

B. PROCEEDINGS IN THE DISTRICT COURT

On September 1, 2017, Canal A Media and Mr. Archila filed a federal 

complaint in the Central District of California challenging USCIS’s denial of the 

I-129. The Defendants are USCIS; DHS, of which USCIS is a component agency; 

the Director of USCIS; the Secretary of Homeland Security; and the Director of the 

USCIS California Service Center, the center that adjudicated Canal A Media’s 

I-129. On September 30, 2018, the complaint was ordered transferred to the 

Southern District of Florida, where Mr. Archila resides and in which Canal A 

Media is incorporated. The Plaintiffs then filed an amended complaint, which is 

the operative pleading in this case and which we refer to as the “Complaint.”

Case: 19-11193 Date Filed: 07/08/2020 Page: 4 of 17
5

The Plaintiffs contend that USCIS’s capital-contribution requirement has no 

basis in “statute, regulation, case law, or other authority.” They also say Canal A 

Media did in fact satisfy the capital-contribution requirement in its response to 

USCIS’s request for evidence. The Plaintiffs claim that USCIS’s adoption of the 

capital-contribution requirement violated the APA; the new rule was improperly 

retroactively applied, harming both Canal A Media and Mr. Archila; and the denial 

of the I-129 violated Canal A Media’s due process. They seek, among other relief, 

a declaration that USCIS acted unlawfully in denying Canal A Media’s I-129 and 

an injunction requiring USCIS to approve the I-129 and grant Mr. Archila an L-1A 

visa.

The Defendants moved to dismiss the Complaint for lack of subject-matter 

jurisdiction. The Defendants argued the Plaintiffs cannot challenge the I-129 

denial because there is no “final agency action” given the pendency of removal 

proceedings against Mr. Archila. They also argued that judicial review of USCIS’s 

decision is precluded by 8 U.S.C. § 1252(g) and that, to the extent the Plaintiffs do 

have any valid claims, 8 U.S.C. § 1252(b)(9) (known as the “zipper clause”) 

requires those claims be brought in Mr. Archila’s removal proceedings. The 

Plaintiffs opposed the motion.

On March 27, 2019, the District Court granted the motion to dismiss. Canal 

A Media Holding, LLC v. USCIS, 369 F. Supp. 3d 1312, 1324 (S.D. Fla. 2019). 

Case: 19-11193 Date Filed: 07/08/2020 Page: 5 of 17
6

The court first held the denial of the I-129 was not final agency action because Mr. 

Archila’s removal proceedings are ongoing. Id. at 1319–21. The District Court 

held alternatively that § 1252(g) bars review of the I-129 denial “because this 

action was filed after Mr. Archila’s removal proceedings commenced and 

unmistakably sought to moot those proceedings.” Id. at 1321. The District Court 

also ruled that § 1252(b)(9) requires any claims the IJ or BIA cannot resolve be 

brought to the Court of Appeals after Mr. Archila is ordered removed. Id. at 1322–

23. The Plaintiffs timely appealed.

II.

The APA provides a general authorization of judicial review for cases in 

which “review [of agency action] is sought not pursuant to specific authorization in 

the substantive statute.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882, 110 S. 

Ct. 3177, 3185 (1990); see Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868, 

877 (11th Cir. 2009) (stating that judicial review of agency action can be sought 

via the APA when “the statute allegedly violated does not provide a private right of 

action”). This provision applies here, where the challenged agency action is the 

denial of a visa petition. See Cabaccang v. USCIS, 627 F.3d 1313, 1315 (9th Cir. 

2010).

In our circuit, dismissal for the reason that the challenged agency action was 

not a final order is a dismissal for lack of subject-matter jurisdiction. See LabMD, 

Case: 19-11193 Date Filed: 07/08/2020 Page: 6 of 17
7

Inc. v. FTC, 776 F.3d 1275, 1278, 1280 (11th Cir. 2015). That is true, too, for 

dismissals under 8 U.S.C. § 1252(b)(9) and (g). See Madu v. U.S. Att’y Gen., 470 

F.3d 1362, 1365–66 (11th Cir. 2006). We review de novo dismissal for lack of 

subject-matter jurisdiction. LabMD, 776 F.3d at 1278.

III.

As set out above, the District Court dismissed the Complaint based on the 

APA as well as two of 8 U.S.C. § 1252’s jurisdictional provisions. After careful 

review, we conclude the District Court erred in its analysis of all three grounds for 

dismissal. We therefore reverse its dismissal of the Complaint.

A. APA FINALITY

In order to bring suit under the APA, plaintiffs must demonstrate that the 

decision at issue was “final agency action.” 5 U.S.C. § 704; Lujan, 497 U.S. at

882, 110 S. Ct. at 3185. The Supreme Court has set forth a two-part test for 

determining whether agency action is “final” under the APA: “First, the action 

must mark the consummation of the agency’s decisionmaking process—it must not 

be of a merely tentative or interlocutory nature. And second, the action must be 

one by which rights or obligations have been determined, or from which legal 

consequences will flow.” U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 

___, 136 S. Ct. 1807, 1813 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177–

78, 117 S. Ct. 1154, 1168 (1997)). The “core question” about finality “is whether 

Case: 19-11193 Date Filed: 07/08/2020 Page: 7 of 17
8

the agency has completed its decisionmaking process, and whether the result of 

that process is one that will directly affect the parties.” Franklin v. Massachusetts, 

505 U.S. 788, 797, 112 S. Ct. 2767, 2773 (1992).

The District Court found that USCIS’s denial of Canal A Media’s I-129 was 

not final agency action. In the eyes of the District Court, neither prong of the 

finality analysis was satisfied in this case because Mr. Archila, the beneficiary of 

the I-129, can still receive “similar relief to what he seeks here—lawful status in 

the United States”—through his removal proceedings. Canal A Media, 369 F. 

Supp. 3d at 1319. The District Court said that the Plaintiffs must wait until there is 

“a final decision on [Mr. Archila’s] immigration status at the end of removal 

proceedings” before they can file an APA suit raising the claims in their 

Complaint. Id. at 1320.

The District Court erred in its analysis of both finality prongs. First, the 

I-129 denial was the consummation of USCIS’s decision-making process because 

it was the agency’s final word on the matter. USCIS’s decision was neither “the 

ruling of a subordinate official” nor a “tentative” recommendation on the visa 

petition. See Franklin, 505 U.S. at 797, 112 S. Ct. at 2773 (quoting Abbott Labs. 

v. Gardner, 387 U.S. 136, 151, 87 S. Ct. 1507, 1517 (1967)). This Court’s ruling 

in Perez supports our conclusion on this point. In that case, Aaron Camacho Perez 

was ordered removed and, in a separate proceeding, USCIS denied his petition for 

Case: 19-11193 Date Filed: 07/08/2020 Page: 8 of 17
9

adjustment of status under the Cuban Adjustment Act. See 774 F.3d at 962–63. A 

panel of this Court held that Mr. Perez satisfied the finality requirement because 

the IJ in his removal proceedings had no authority to review USCIS’s denial of his 

adjustment petition. Id. at 966. In the case before us, as in Perez, the IJ in Mr. 

Archila’s removal proceedings has no authority to alter USCIS’s decision to deny 

Canal A Media’s visa petition. See Matter of Aurelio, 19 I. & N. Dec. 458, 460 

(BIA 1987) (“[I]t is well established that immigration judges have no jurisdiction 

to decide visa petitions . . . .”); see also Oral Argument Recording at 21:02–21:13 

(June 9, 2020) (Defendants’ Counsel: “[The IJ] does not have jurisdiction to 

review the visa decision.”); see generally 8 C.F.R. § 214.2(l) (setting forth 

procedures for securing approval of L-1A visa, including filing an I-129 petition). 

Therefore here, as in Perez, USCIS’s decision consummated its decision-making 

process, making the denial of the I-129 final.

The Defendants attempt to distinguish Perez because Mr. Perez, unlike Mr. 

Archila, had already been ordered removed when he filed his federal complaint. 

True, but this fact was irrelevant to Perez’s finality analysis. What matters is 

whether the decision is subject to further review. See Perez, 774 F.3d at 966

(stating that, even if the IJ “may have purported” to attempt to review Mr. Perez’s 

second adjustment denial, USCIS’s action was final because the IJ “lacked 

jurisdiction to adjudicate or to readjudicate” the petition (emphasis added)). This 

Case: 19-11193 Date Filed: 07/08/2020 Page: 9 of 17
10

conclusion is in line with Ibarra v. Swacina, 628 F.3d 1269 (11th Cir. 2010) (per 

curiam). In Ibarra, a panel of this Court held that federal courts may not hear an 

APA claim regarding denial of a petition for status adjustment if there are 

“deportation proceedings pending in which the [adjustment] decision might be 

reopened or challenged.” Id. at 1270 (quotation marks omitted). There is no such 

opportunity in this case, which means the agency proceedings have been 

consummated.

USCIS’s denial of the I-129 also satisfies the second prong of the finality 

test because it conclusively determined the Plaintiffs’ legal rights and obligations. 

In deciding to the contrary, the District Court failed to consider whether Canal A 

Media, the visa petitioner, can participate in Mr. Archila’s removal proceedings. 

Canal A Media is not a party to Mr. Archila’s removal proceeding and has no 

standing to request an L-1A visa for him in that forum. See Br. of Appellants at 19 

n.4. The importance of this factual wrinkle is clearly shown by Ibarra, in which 

our Court held USCIS’s denial of the plaintiff’s application for adjustment to legal 

permanent resident status was not final agency action because the petitioner could 

(and did) renew her adjustment application in her removal proceedings. 628 F.3d 

at 1270. Since it has no further “opportunity to obtain” a change in Mr. Archila’s 

status, Canal A Media has received a final adjudication of its rights and obligations 

regarding the I-129. See id. Two cases cited by the Defendants, Dhakal v. 

Case: 19-11193 Date Filed: 07/08/2020 Page: 10 of 17
11

Sessions, 895 F.3d 532 (7th Cir. 2018), and Jama v. DHS, 760 F.3d 490 (6th Cir. 

2014), are distinguishable for similar reasons. In both cases, the court of appeals

held that the denial of an adjustment petition was not final where the plaintiff 

himself had the ability to receive the same or nearly identical relief in his removal 

proceedings. See Dhakal, 895 F.3d at 540; Jama, 760 F.3d at 496–97. Not so here.

* * *

USCIS’s denial of Canal A Media’s I-129 was final because Canal A Media 

has gone as far as it can in obtaining administrative adjudication of the I-129 and 

neither Plaintiff can displace that decision through Mr. Archila’s removal 

proceedings. The District Court thus erred in dismissing the Complaint for failure 

to satisfy the APA’s finality requirement.

B. JURISDICTIONAL PROVISIONS OF THE IMMIGRATION LAWS

We turn now to 8 U.S.C. § 1252, Congress’s comprehensive scheme for 

judicial review of removal orders. The District Court held that regardless of 

whether USCIS’s denial of the I-129 was final agency action, the Complaint was 

due to be dismissed under § 1252(b)(9) and (g). We disagree on both counts.

1. Section 1252(b)(9): the “Zipper Clause”

Section 1252(b)(9)—commonly known as the “zipper clause”—“bars review 

of claims arising from ‘action[s]’ or ‘proceeding[s] brought to remove an alien.’”

DHS v. Regents of Univ. of Cal., 591 U.S. ___, 140 S. Ct. 1891, 1907 (2020) 

Case: 19-11193 Date Filed: 07/08/2020 Page: 11 of 17
12

(alterations in original) (quoting 8 U.S.C. § 1252(b)(9)). As the Supreme Court 

recently explained, the zipper clause “does not present a jurisdictional bar where 

those bringing suit are not asking for review of an order of removal, the decision to 

seek removal, or the process by which removability will be determined.” Id.

(alterations adopted) (quotation marks omitted). Our Court has similarly clarified

that the zipper clause only affects cases that “involve[] review of an order of 

removal.” Madu, 470 F.3d at 1367. 

The District Court dismissed the Complaint as barred by 8 U.S.C. 

§ 1252(b)(9). See Canal A Media, 369 F. Supp. 3d at 1322–23. Without reference

to Madu, the court applied the zipper clause because it found the Plaintiffs’ claims 

to be “inextricably linked to any ultimate removal order against Mr. Archila.” Id.

at 1322. This was error.

The District Court’s expansive interpretation of the zipper clause does not 

square with that provision’s “narrow” scope. See Regents, 140 S. Ct. at 1907. The 

zipper clause is not intended to cut off claims that have a tangential relationship 

with pending removal proceedings. See J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 

(9th Cir. 2016) (“[C]laims that are independent of or collateral to the removal 

process do not fall within the scope of § 1252(b)(9).”). Instead, a claim only 

“aris[es] from” a removal proceeding when the parties are “challenging . . . 

removal proceedings.” Regents, 140 S. Ct. at 1907; see Madu, 470 F.3d at 1367. 

Case: 19-11193 Date Filed: 07/08/2020 Page: 12 of 17
13

This rule makes sense. The zipper clause promotes judicial economy by 

consolidating “challenges to any action related to removal proceedings . . . with the 

review of the final order of removal.” 14A Charles Alan Wright & Arthur R. 

Miller, Federal Practice & Procedure § 3664 (4th ed. Apr. 2020 update). Here, 

because the Plaintiffs have not brought any challenge to Mr. Archila’s removal 

proceedings, the zipper clause’s channeling function has no role to play.

2. Section 1252(g): Exclusive Jurisdiction

“Section 1252(g) is similarly narrow.” Regents, 140 S. Ct. at 1907. This 

provision 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). Section 1252(g) does not

“cover[] ‘all claims arising from deportation proceedings’ or impose[] ‘a general 

jurisdictional limitation.’” Regents, 140 S. Ct. at 1907 (quoting Reno v. Am.-Arab 

Anti-Discrimination Comm. (“AAADC”), 525 U.S. 471, 482, 119 S. Ct. 936, 943 

(1999)). Instead, § 1252(g) bars challenges only to the “three discrete actions” 

enumerated in the statute. AAADC, 525 U.S. at 482, 119 S. Ct. at 943.

The District Court held that the Plaintiffs’ claims were barred by § 1252(g) 

because the relief sought in this case might have the practical effect of “moot[ing]” 

the removal proceedings against Mr. Archila. Canal A Media, 369 F. Supp. 3d at 

1321–22. Here, too, the District Court engaged in an impermissibly broad reading 

Case: 19-11193 Date Filed: 07/08/2020 Page: 13 of 17
14

of one of § 1252’s jurisdictional provisions. When asking if a claim is barred by 

§ 1252(g), courts must focus on the action being challenged. Because the I-129 

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

case or ‘execute’ a removal order,” the Plaintiffs’ challenge to it is not barred. 

Regents, 140 S. Ct. at 1907; see also AAADC, 525 U.S. at 485, 119 S. Ct. at 944 

(stating that § 1252(g) ensures challenges to the three discretionary actions 

mentioned in the statute are not heard “outside the streamlined process that 

Congress has designed”).

IV.

The Plaintiffs seek review of final agency action. Their challenge is not 

barred by 8 U.S.C. § 1252(b)(9) or (g). As a result, we reverse the District Court’s 

dismissal of the Complaint for lack of subject-matter jurisdiction and remand for 

further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Case: 19-11193 Date Filed: 07/08/2020 Page: 14 of 17
15

NEWSOM, Circuit Judge, concurring:

I join the Court’s opinion in full. I write separately only to emphasize (what 

is to me, anyway) the obvious correctness of the Court’s holding that USCIS’s 

denial of Canal A Media’s Form I-129 visa petition constituted “final agency 

action” within the meaning of § 704 of the Administrative Procedure Act. See 5 

U.S.C. § 704.

In determining whether agency action is “final” for APA purposes, the 

Supreme Court has emphasized, first and foremost, that “the action must mark the 

consummation of the agency’s decisionmaking process,” Bennett v. Spear, 520 

U.S. 154, 177–78 (1997) (emphasis added) (quotation omitted), or, alternatively, 

that “the agency has completed its decisionmaking process,” Franklin v. 

Massachusetts, 505 U.S. 788, 797 (1992) (emphasis added). Those formulations 

tee up an important—and here, apparently dispositive—question: What is the 

relevant “agency”? It seems to me self-evident—and so far as I can tell, all 

agree—that the “agency” whose “decisionmaking process” we have to evaluate 

here is USCIS, the instrumentality of the federal government responsible for 

evaluating I-129 petitions. See 8 C.F.R. § 214.2(l).

The government contends here—and the district court held—that USCIS’s 

denial of Canal A Media’s I-129 petition didn’t constitute “final agency action” 

because Mr. Archila, on whose behalf Canal A Media sought the I-129, was still in 

Case: 19-11193 Date Filed: 07/08/2020 Page: 15 of 17
16

the middle of removal proceedings before an immigration judge. That is triply 

wrong—and, it seems to me, at the most basic level(s).

First, the government asks us to agency-jump. USCIS’s decisionmaking 

process hasn’t run its course, the government says, because an immigration judge 

is still working. But USCIS and the immigration court are altogether different 

“agenc[ies].” Cf. 5 U.S.C. § 701(b)(1) (defining “agency” to mean “each authority 

of the Government of the United States, whether or not it is within or subject to 

review by another agency”). More than that, they are housed in altogether 

different departments—USCIS exists within the Department of Homeland 

Security,1 whereas the immigration court operates under the auspices of the 

Department of Justice.2

 The executive branch has an architecture—granted, not 

always perfectly elegant, but an architecture nonetheless—and the government’s 

position defies it.

Second, not only are the agencies themselves different, the participants in 

the proceedings before them are different. The only party properly before USCIS 

was Canal A Media, the visa petitioner; Mr. Archila, although the petition’s 

intended beneficiary, was not a party to the I-129 proceedings. See 8 C.F.R. 

1 See Operational and Support Components, U.S. Dep’t of Homeland Sec., 

https://www.dhs.gov/operational-and-support-components (last visited July 7, 2020).

2 See Executive Office for Immigration Review, U.S. Dep’t of Justice, 

https://www.justice.gov/eoir (last visited July 7, 2020).

Case: 19-11193 Date Filed: 07/08/2020 Page: 16 of 17
17

§ 103.2(a)(3). Conversely, in the ongoing removal proceedings before the IJ, Mr. 

Archila is the lone participant; Canal A Media has no right to appear.

Finally, not only are the agencies different, and the parties before them 

different, but their respective jurisdictions—for purposes of this case, anyway—are 

different, as well. While USCIS and immigration courts share jurisdiction over a 

limited range of issues—for instance, eligibility for Temporary Protected Status, 

see, e.g., Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1140 

(11th Cir. 2009)—only USCIS has authority to decide Canal A Media’s I-129 visa 

petition, see 8 C.F.R. § 214.2(l)(1)(i); Matter of Aurelio, 19 I. & N. Dec. 458, 460 

(BIA 1987). The IJ handling Mr. Archila’s removal proceedings has no 

jurisdiction to consider, grant, or deny Canal A Media’s petition, let alone to 

review USCIS’s denial. 

At 30,000 feet, then, the government’s position just can’t be right. USCIS’s 

rejection of Canal A Media’s I-129 petition is not non-“final” simply because a 

different agency that is housed in a different executive-branch department and is 

vested with jurisdiction over different issues and is presiding over a different

proceeding involving a different party hasn’t finished its different business.

Case: 19-11193 Date Filed: 07/08/2020 Page: 17 of 17