FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 27, 2008

THOMAS K. KAHN

CLERK

 Honorable Orinda Evans, United States District Judge for the Northern District of *

Georgia, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-14072

________________________

D. C. Docket No. 06-22502-CV-UU

FRANCOISE SICAR, 

SONY SANEUS, et al.,

Plaintiffs-Appellants, 

versus 

MICHAEL CHERTOFF, 

EMILIO T. GONZALEZ, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 27, 2008)

Before BLACK and MARCUS, Circuit Judges, and EVANS, District Judge. *

BLACK, Circuit Judge:
Defendants are Michael Chertoff, Secretary of the Department of Homeland Security; 1

Emilio Gonzalez, Director of United States Citizenship and Immigration Services (CIS); Linda

Swacina, Miami District Director, CIS; Marion Dills, Officer in Charge, Krome Service

Processing Center, United States Immigration and Customs Enforcement (ICE), United States

Department of Security; and Michael Rozos, Field Office Director, Miami ICE Detention and

Removal Office, United States Department of Homeland Security. 

2

Appellants Francoise Sicar, Sony Saneus, Kerby Sicar, Monushka Sicar, and

Emilien Honore appeal the dismissal of their class action complaint, which they

filed against a group of defendants we will refer to as “the Government.” In their

1

complaint, Appellants seek declaratory and injunctive relief, alleging the

Government has systematically misclassified their parole status during the course

of status adjustment determinations under the Haitian Refugee Immigration

Fairness Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681 (HRIFA). The district

court dismissed Appellants’ complaint, concluding the Appellants lacked standing

to bring the claims asserted therein and it lacked subject matter jurisdiction to hear

them. After review, we affirm because we lack subject matter jurisdiction.

I. BACKGROUND

A. Status Adjustment Under HRIFA

Under HRIFA § 902, an alien who has been ordered excluded, deported,

removed, or to voluntarily depart can apply for an adjustment of status, whereby

his immigration status is adjusted to that of an alien lawfully admitted for
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permanent residence. See HRIFA § 902(a), (b). A status adjustment is available

to any Haitian alien who:

(1) was present in the United States on December 31, 1995, who--(A)

filed for asylum before December 31, 1995, (B) was paroled into the

United States prior to December 31, 1995, after having been

identified as having a credible fear of persecution, or paroled for

emergent reasons or reasons deemed strictly in the public interest, or

(C) was a child . . . at the time of arrival in the United States . . . .

HRIFA § 902(b). The present case involves the route for status adjustment

specified in § 902(b)(1)(B), which deals with Haitian aliens who have been

paroled into this country.

HRIFA also contains a jurisdiction-stripping provision that relates to status

adjustment determinations under § 902(b). Section 902(f) provides, “[a]

determination by the Attorney General as to whether the status of any alien should

be adjusted under this section is final and shall not be subject to review by any

court.” 

B. Appellants’ Class Action Complaint

On October 10, 2006, Appellants filed a class action complaint in the

United States District Court for the Southern District of Florida. The members of

the purported class are Haitian nationals who, prior to December 31, 1995, arrived
4

in the United States without lawful immigration status, were taken into

immigration custody, and were released on their own recognizance. 

In their complaint, Appellants assert four counts of statutory and

constitutional violations arising from the Government’s determinations that their

releases-on-recognizance do not qualify as “parole” for purposes of HRIFA

§ 902(b). First, Appellants claim the Government’s finding they had not been

paroled is improper as a matter of statutory interpretation. Second, Appellants

allege the Government’s unpromulgated policy, pursuant to which releases-onrecognizance do not constitute paroles, violates the Administrative Procedure Act

(APA). In the third count, Appellants claim the Government has violated equal

protection by finding non-Haitians’ releases-on-recognizance qualify as paroles,

while Haitian aliens’ do not. Finally, Appellants claim their due process rights

have been violated by the Government’s alleged misclassifications.

Appellants’ complaint requests a declaratory judgment that the Government

has unlawfully misclassified their parole status and that their releases-onrecognizance constitute parole for purposes of HRIFA § 902(b). They also seek

an order compelling the Government to allow them a reasonable time during

which to file, amend, or renew their status adjustment applications.
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C. Procedural History

On November 22, 2006, the Government filed a motion to dismiss

Appellants’ complaint based on a lack of subject matter jurisdiction. The district

court, on March 9, 2007, issued an order dismissing Appellants’ complaint. The

court based its dismissal on Appellants’ lack of standing, so it did not address

whether it had subject matter jurisdiction. As to standing, the court concluded

Appellants had not demonstrated an actual injury, since they failed to allege they

had filed for asylum prior to December 31, 1995, a requirement under

§ 902(b)(1)(A). 

Appellants filed a motion for relief from the district court’s dismissal order,

alleging the district court had erred in analyzing the status adjustment

requirements of § 902(b)(1)(A). On June 29, 2007, the district court entered the

order on which the current appeal is based. The court acknowledged it had

wrongly applied § 902(b)(1)(A) to Appellants’ case. Since the statute is

disjunctive and Appellants were proceeding under § 902(b)(1)(B), the parole

section, they did not need to show they had applied for asylum, a requirement

under § 902(b)(1)(A). However, the district court held that, even under

§ 902(b)(1)(B), Appellants still lacked standing, since their complaint did not

allege they had met the other requirements for status adjustment under
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§ 902(b)(1)(B) besides having been paroled. Thus, the court found, Appellants

had not established any of the three standing requirements: injury in fact,

causation, or redressibility. The court also held it lacked subject matter

jurisdiction to review Appellants’ status adjustment determinations under § 902(f). 

In doing so, the court rejected Appellants’ argument that the alleged

misclassification of their parole status was a reviewable threshold issue, one made

prior to the status adjustment determination and thus outside of § 902(f)’s

coverage. Moreover, the court concluded that despite Appellants’ characterization

of their cause of action as a challenge to the systemic violations carried out by the

Government, they effectively sought a declaration that they were entitled to adjust

their status under HRIFA, and the court was plainly precluded from considering

such a challenge under § 902(f). 

II. DISCUSSION

A. Standard of Review

We review standing and subject matter jurisdiction de novo. Garcia v. Att’y

Gen. of U.S., 329 F.3d 1217, 1220 (11th Cir. 2003) (subject matter jurisdiction);

Fla. Ass’n of Med. Equip. Dealers, Med-Health Care v. Apfel, 194 F.3d 1227,

1229 (11th Cir. 1999) (standing).
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B. Standing

To have standing in federal court, a plaintiff must meet three requirements. 

First, he must have suffered an injury in fact: “an invasion of a legally protected

interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130,

2136 (1992). The injury must be “concrete and particularized” and “actual or

imminent, not conjectural or hypothetical.” Id. (quotations and citations omitted). 

Second, there must be a causal connection between his injury and the conduct he

challenges, i.e., his injury must be fairly traceable to the challenged actions of the

defendant. Id. Third, it must be likely that plaintiff’s injury will be redressed by a

favorable decision of the court. Id. at 561, 112 S. Ct. at 2136.

The district court determined Appellants failed to meet any of the three

standing requirements. The court concluded Appellants’ claim they had been

wrongfully denied status adjustments under § 902(b) was insufficient to allege an

injury in fact, since Appellants did not allege they would be eligible for

adjustments even if they were classified as having been paroled. In so concluding,

the court noted the complaint contained no allegations that Appellants were

present in the United States as of December 31, 1995, or that they had been

paroled “after having been identified as having a credible fear of persecution, or

paroled for emergent reasons or reasons deemed strictly in the public interest.”
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See § 902(b)(1)(B). Even if the Appellants had shown an injury in fact, the court

noted they still had not shown their injury was fairly traceable to the

Government’s alleged misclassification because they failed to demonstrate they

were otherwise eligible for status adjustments. Finally, as to redressibility, the

court determined that even if it granted Appellants’ requested relief and

recognized their releases-on-recognizance as paroles, Appellants still would not be

eligible for status adjustments, since having been paroled alone is not sufficient to

qualify for adjustments under § 902(b)(1)(B).

The district court clearly read Appellants’ complaint as alleging their injury

to be the denial of status adjustments under § 902(b). However, a plain reading of

their complaint indicates the injury they allege is actually the misclassification of

their releases-on-recognizance, not the ultimate denial of their status adjustment

applications. Appellants claim they were denied a classification to which they

were entitled—that of parolees for purposes of § 902(b). This alleged

misclassification is an injury in fact for standing purposes, regardless of how

Appellants’ ultimate status adjustment determinations may be resolved. Also, this

injury is fairly traceable to the actions of the Government, as it was the

Government that allegedly misclassified Appellants’ releases-on-recognizance. 

Moreover, this injury would be redressed by a favorable decision in federal court. 
Appellants’ complaint states they have been denied “certain immigration and non- 2

immigration benefits that depend on the proper classification of their ROR orders as paroles.” 

To the extent Appellants contend this statement alleges an injury in fact outside the context of

their HRIFA status adjustments, we disagree. Having been denied unspecified “non-immigration

benefits,” without more, is far too speculative and not sufficiently particularized to constitute an

injury in fact.

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Were the court to find Appellants had been paroled, the misclassification would be

corrected, and Appellants could have another attempt to have their status adjusted,

this time without the allegedly incorrect initial classification. Thus, Appellants

have met the constitutional requirements of standing.2

C. Subject Matter Jurisdiction

As set forth above, HRIFA § 902(f) provides, “[a] determination by the

Attorney General as to whether the status of any alien should be adjusted under

this section is final and shall not be subject to review by any court.” Relying on

this provision, the district court dismissed Appellants’ complaint for lack of

subject matter jurisdiction. Despite the operation of § 902(f), Appellants contend

the district court had subject matter jurisdiction for two independent reasons. 

First, Appellants claim whether they have been paroled for purposes of § 902(b) is

a threshold determination, one that precedes the status adjustment determination

and is thus reviewable by courts. Second, they argue their complaint, rather than

challenging individual status adjustment determinations, alleges systemic

violations by the Government in its alleged misclassification of Appellants’
10

releases-on-recognizance, and this pattern of misclassification remains subject to

judicial review.

1. Threshold determination

Relying on Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001), Appellants

claim whether they have been paroled is a threshold issue, one that arises prior to

the Government’s status adjustment decision and is thus reviewable, despite the

jurisdiction-stripping language of § 902(f). In Moore, we analyzed the following

jurisdiction-stripping provision found in INA § 242(a)(2)(C): “Notwithstanding

any other provision of law, no court shall have jurisdiction to review any final

order of removal against an alien who is removable by reason of having committed

[certain enumerated criminal offenses].” 251 F.3d at 923. We noted our prior

precedent, which is based on the plain language of this provision, allowed us to

review “the threshold issues of whether Petitioner is (1) an alien; (2) who is

removable; (3) based on having committed a disqualifying offense.” Id. Then, if

these conditions are satisfied, our jurisdiction over a petition for review would

disappear. Id.

Appellants contend that, under Moore, we have jurisdiction to review, as a

threshold matter, whether they have been granted paroles. However, unlike the

jurisdiction-stripping provision in Moore, § 902(f) contains no imbedded
11

threshold issues. Instead, it is quite clear: “A determination by the Attorney

General as to whether the status of any alien should be adjusted under this section

is final and shall not be subject to review by any court.” HRIFA § 902(f). In

Moore, the three reviewable threshold issues we recognized were found very

plainly in the language of INA § 242(a)(2)(C). In contrast, the threshold “parole”

issue Appellants ask us to read into § 902(f) is not in any way referenced in that

provision. Having been paroled is one of the requirements for status adjustment

under § 902(b), and the status adjustment determination under that provision is the

very determination we are prohibited from reviewing under the plain language of

§ 902(f). The only even arguable threshold issue set forth in § 902(f) is whether

there has been a determination by the Attorney General. If there has been, and in

this case there has, we have no jurisdiction to review it. The language of § 902(f)

could not be plainer. The district court did not err in disregarding Appellants’

threshold issue argument.

2. Systemic violations

Despite the general presumption in favor of judicial review, we have held

§ 902(f) plainly strips us of jurisdiction to review status adjustment

determinations. Alexis v. U.S. Att’y Gen., 431 F.3d 1291, 1294 (11th Cir. 2005). 

However, we retain jurisdiction to consider substantial constitutional challenges to
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the immigration statute itself. Id. at 1295. If a constitutional claim is meritless,

we do not have jurisdiction to consider it. Id.

a. Count one

Count one of Appellants’ complaint, in which they contest the

Government’s alleged misclassification of their parole status on statutory

interpretation grounds, fails to provide us with jurisdiction. This is because the

determination of whether an applicant has been paroled is inextricably bound up in

the actual status adjustment determination under § 902(b). It is a decision made

during, and as a part of, the ultimate status adjustment determination, judicial

review of which is plainly prohibited by § 902(f).

Appellants claim count one does not challenge the merits of individual

status adjustment determinations, but instead alleges a class-wide, systemic wrong

in the way the Government has misclassified and continues to misclassify their

releases-on-recognizance. Thus, relying on Tefel v. Reno, 180 F.3d 1286 (11th

Cir. 1999), they contend we have jurisdiction to consider this claim. In Tefel, the

plaintiffs advanced a challenge to the BIA’s interpretation of a newly enacted

“stop-time” provision. Id. at 1290. In order to be eligible for suspension of

deportation, an alien was required to establish four factors, one of which was that

he had been physically present in the United States for a certain period of time. 
13

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA) revised the INA and included a stop-time provision, under which the

period of physical presence is deemed to end once the alien is served with a notice

to appear or commits an enumerated criminal offense. The BIA held the stop-time

provision applied retroactively to aliens who had applied for suspension of

deportation prior to the enactment of IIRIRA. It was this interpretation that was

the subject of the plaintiffs’ class action complaint in Tefel. Id. at 1289-90. 

The pre-IIRIRA judicial review scheme at play in Tefel gave appellate

courts exclusive jurisdiction over challenges to deportation proceedings. Id. at

1290, 1297. Yet, plaintiffs brought their class action complaint in federal district

court. Id. at 1290. We determined the plaintiffs, rather than challenging their

individual deportation proceedings, had asserted “a program, pattern or scheme by

immigration officials to violate the constitutional rights of aliens,” and this was

the type of challenge to INS practices that fell outside the pre-IIRIRA judicial

review scheme. Id. at 1297. Thus, the appellate court did not have exclusive

jurisdiction, and the district court had properly exercised jurisdiction over the

complaint. In so concluding, we noted, “[p]laintiffs do not challenge the specific

result in any single case and do not argue that any of the individual [p]laintiffs

would receive suspension of deportation if their applications received full
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consideration.” Id. Had the plaintiffs lobbied such a challenge, it would have

fallen under the exclusive jurisdiction of the appellate courts.

Though Tefel dealt with a jurisdiction provision that differentiated between

district and appellate court jurisdiction, its distinction between challenges

involving the merits of an INS determination and those alleging a broad program

or scheme orchestrated to violate the rights of aliens is instructive. What the

plaintiffs did not challenge in Tefel is exactly what Appellants challenge in the

present case. Tefel involved an attack on the BIA’s interpretation of a piece of

legislation, an interpretation that applied uniformly to all similarly situated

applicants. Here, rather than challenging an interpretation made collaterally to the

status adjustment proceedings themselves and uniformly applicable in every case,

as the plaintiffs did in Tefel, Appellants challenge the Government’s findings, in

individual cases, that their releases are not paroles for purposes of status

adjustments. While each decision as to whether Appellants were paroled has come

out the same way and thus might be likened (in effect anyway) to a uniformly

applicable rule, the reality is each decision is made solely in the course of the

adjustment proceedings. This is fundamentally different from the BIA

interpretation challenged in Tefel. Appellants in effect seek to challenge the

Government’s resolutions of their status adjustment applications. They could not
15

do this were they to file individual complaints. The fact that they attempt to do so

as a class, rather than individually, does not give us jurisdiction.

Appellants also rely on McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,

111 S. Ct. 888 (1991), to support their contention that we have jurisdiction. At

issue in McNary was the procedure for status adjustment for “special agricultural

workers” (SAWs). The SAW program was part of the Reform Act of 1986 and,

like HRIFA § 902(b), offered SAWs the opportunity to apply for a status

adjustment as long as certain prerequisites were met. Id. at 481-83, 111 S. Ct. at

890-91. The Reform Act contained a jurisdiction-limiting provision which

prohibited judicial review of the final administrative determination of a SAW

status adjustment, except as part of the judicial review of an order of exclusion or

deportation. Id. at 485-86, 111 S. Ct. at 893. To administer the SAW program,

the INS adopted regulations, pursuant to which each applicant was afforded a

personal interview. Id. at 485, 111 S. Ct. at 892. Plaintiffs brought a class action

suit alleging the interview process was conducted in an arbitrary fashion that

deprived applicants of due process. Id. at 487, 111 S. Ct. at 893-94. Among the

alleged procedural deficiencies in the interview process were that applicants were

not given the opportunity to challenge adverse evidence, they could not present

witnesses on their behalf, non-English speaking applicants were not provided
16

translators, and no recordings of the interviews were made. Id. at 487-88, 111

S. Ct. at 893-94. 

McNary involved a collateral attack on the process used to determine status

adjustment eligibility. The challenge lobbied there was clearly aimed at

procedural deficiencies present in the interview process, not at the outcome of the

status adjustment determinations. Here, as discussed above, Appellants’ claim is a

direct attack on a substantive determination—whether Appellants were

paroled—that is but one component of the ultimate status adjustment

determination. This is not an attack on some collateral, procedural aspect of the

status adjustment determination; it is an attack on an aspect of the substantive

determination itself. Under the plain terms of § 902(f), we do not have jurisdiction

to review such an attack.

b. Count two

In count two, Appellants claim the Government adopted an unpromulgated

policy, pursuant to which their releases-on-recognizance do not constitute paroles

for purposes of § 902(b), and this policy violates the APA, insomuch as the

Government did not publish notice in the Federal Register or provide the public an

opportunity to comment prior to implementing the policy. The district court made

no specific reference to this claim when dismissing Appellants’ complaint. 
17

Despite being couched in terms of the APA, count two, at its heart, is but

another attempt by Appellants to challenge the merits of their status adjustment

determinations. This is confirmed by the relief they request in their complaint. 

Appellants do not ask the court to invalidate the allegedly unpromulgated policy

and force the Government to undertake notice and comment. Instead, they seek a

declaration that their releases-on-recognizance constitute paroles for purposes of

§ 902(b). Thus, as with count one, Appellants’ APA claim is most properly

characterized as one seeking review of their status adjustment determinations, and

§ 902(f) prohibits us from exercising jurisdiction over such a claim. 

c. Counts three and four 

In counts three and four of their complaint, Appellants allege constitutional

violations. First, they claim their equal protection rights have been violated by the

differing treatment of Haitian and non-Haitian refugees in status adjustment

proceedings. Second, Appellants challenge on due process grounds the

Government’s alleged misclassification of their parole status.

In Alexis, the plaintiff argued aliens of different status and nationality were

treated differently under the many immigration laws governing admission into the

United States, and this divergent treatment violated due process. 431 F.3d at

1295. We concluded we lacked jurisdiction to consider this constitutional claim
The IIRIRA replaced the term “excludable” with “inadmissible.” Garcia v. Att’y Gen. of 3

U.S., 329 F.3d 1217, 1221 (11th Cir. 2003). 

18

under § 902(f) because it was not substantial. Id. We noted aliens seeking initial

admission into the United States are requesting a privilege; they do not have a

constitutional right regarding their applications. Id. “[E]xcludable aliens have no

constitutional right to admission into this country; they have only those rights

statutorily granted by Congress.” Id.; see also Garcia-Mir v. Smith, 766 F.2d

1478, 1484 (11th Cir. 1985) (noting excludable aliens do not have constitutional

rights with regard to their admission applications).

Appellants, like the plaintiff in Alexis, are inadmissible aliens. We know 3

this because they were taken into custody as they attempted to enter the United

States without lawful immigration status. Garcia-Mir, 766 F.2d at 1483-84. That

they have been and indeed are currently physically present in the United States,

having been released on their own recognizance, does not change this status. Id. at

1484. In fact, their HRIFA applications were submitted in hopes of having their

inadmissible alien status adjusted to that of lawfully admitted residents. See

Alexis, 431 F.3d at 1295-96. Because Appellants are inadmissible aliens, they

have no constitutional rights regarding their applications for status adjustments. 
In their brief, Appellants assert, “[i]ndependent of any link to HRIFA relief . . . 4

Appellants’ principal statutory claim was that there was no legal basis in the INA for the orders

of release on personal recognizance that the Haitian Refugees and members of their class

received . . . .” However, no such claim is made in their complaint, which focuses exclusively on

the Government’s alleged misclassification of their releases-on-recognizance during the HRIFA

status adjustment determinations. Because a claim independent of HRIFA was never raised, we

need not determine whether we have jurisdiction over it. 

19

Thus, their constitutional claims are not substantial, and we have no jurisdiction to

review them.

In sum, due to the operation of § 902(f), we have no jurisdiction to hear

Appellants’ statutory challenges to the Government’s alleged misclassification of

their releases-on-recognizance. We also lack jurisdiction to entertain their

4

constitutional challenges because they are not substantial.

III. CONCLUSION

For the foregoing reasons, we conclude the district court erred in finding

Appellants lacked standing to pursue their class action suit. However, because we

have no jurisdiction to hear the claims lobbied in Appellants’ complaint, the

district court’s dismissal of the complaint for lack of subject matter jurisdiction is

AFFIRMED.