[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-13361

Non-Argument Calendar

________________________

D.C. Docket No. 0:13-cv-61682-RNS

DERRICK JOHN WALLACE,

Plaintiff-Appellant,

versus

SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY,

U.S. CITIZENSHIP AND IMMIGRATION SERVICES,

ATTORNEY GENERAL OF THE UNITED STATES, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 22, 2015)

Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

Case: 14-13361 Date Filed: 07/22/2015 Page: 1 of 7 
2

Derrick John Wallace appeals the district court’s dismissal of his civil 

complaint, alleging violations of the Administrative Procedure Act (“APA”), 

5 U.S.C. §§ 703 and 706, the Mandamus Act, 28 U.S.C. § 1361, and the Fifth and 

Fourteenth Amendment’s Due Process Clause, for lack of subject matter 

jurisdiction pursuant to Immigration and Nationality Act (“INA”) § 242(g), 

8 U.S.C. § 1252(g). In his complaint, Wallace challenged the defendants’ 

allegedly wrongful failure to issue him a notice to appear (“NTA”) on the ground

that this inaction deprived him of his only procedural opportunity to renew his 

previously denied application for adjustment of status. On appeal, Wallace argues 

that the district court erred by concluding that § 1252(g) deprived it of subject 

matter jurisdiction to hear his claims. Specifically, he contends that § 1252(g)’s 

plain language and the Supreme Court’s interpretation of that statutory provision 

indicate that it applies only to a government’s affirmative decision to commence 

removal proceedings, not the inverse decision not to commence such proceedings. 

Moreover, Wallace asserts that he has an enforceable legal right to be placed in 

removal proceedings in order to renew his adjustment-of-status application under

8 C.F.R. § 245.2(a)(5)(ii), and that the district court in its order erroneously failed 

to address the merits of his due-process claims.

We have jurisdiction over appeals from all final orders of the district courts 

within our geographic bounds. 28 U.S.C. § 1291. We review a district court’s 

Case: 14-13361 Date Filed: 07/22/2015 Page: 2 of 7 
3

determination of its subject matter jurisdiction de novo. Sweet Pea Marine, Ltd. v. 

APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005).

The Federal Rules of Civil Procedure require the dismissal of a claim if a 

court lacks subject matter jurisdiction over it. Fed.R.Civ.P. 12(b)(1), (h)(3). The 

party bringing the underlying claim bears the burden of establishing federal subject 

matter jurisdiction. Sweet Pea Marine, Ltd., 411 F.3d at 1247 (examining diversity 

jurisdiction under 28 U.S.C. § 1332).

The Mandamus Act, which provides a private cause of action for parties 

related to certain governmental agents and entities’ failure to perform prescribed 

duties, states, in pertinent part:

The district courts shall have original jurisdiction of any action in the 

nature of mandamus to compel an officer or employee of the United 

States or any agency thereof to perform a duty owed to the plaintiff.

28 U.S.C. § 1361. The APA’s provisions concerning the extent of its applicability 

vis-à-vis other laws state, in pertinent part, that:

(a) This chapter applies, according to the provisions thereof, except to 

the extent that--

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

5 U.S.C. § 701(a).

Section 1252(g) of Title 8 of the U.S. Code pertaining to federal courts’ 

subject matter jurisdiction to hear certain immigration claims provides that:

Case: 14-13361 Date Filed: 07/22/2015 Page: 3 of 7 
4

Except as provided in this section and notwithstanding any other 

provision of law (statutory or non-statutory), including section 2241 

of Title 28, or any other habeas corpus provision, and sections 1361 

and 1651 of such title, no court shall have jurisdiction to hear any 

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

or action by the Attorney General to commence proceedings, 

adjudicate cases, or execute removal orders against any alien under 

this chapter.

INA § 242(g), 8 U.S.C. § 1252(g). Section 245.2 of Title 8 of the Code of Federal 

Regulations pertaining to applications for adjustment of status provides, in 

pertinent part, that:

No appeal lies from the denial of an application by the director, but 

the applicant, if not an arriving alien, retains the right to renew his or 

her application in proceedings under 8 CFR part 240. . . . Nothing in 

this section shall entitle an alien to proceedings under [INA § 240] 

who is not otherwise so entitled.

8 C.F.R. § 245.2(a)(5)(ii). Certain kinds of immigration cases require the issuance 

of a NTA. See, e.g., 8 C.F.R. § 216.3(a) (concerning termination of conditional 

resident status); id. § 207.9 (concerning termination of refugee status). Cases 

involving adjustment-of-status applications, however, do not require such issuance. 

See INA § 245, 8 U.S.C. § 1255; 8 C.F.R. § 245.2.

In Reno v. American-Arab Anti-Discrimination Comm. (“AADC”), 

525 U.S. 471, 472-73, 119 S.Ct. 936, 938, 142 L.Ed.2d 940 (1999), the Supreme 

Court considered whether § 1252(g) deprived a district court of jurisdiction to 

consider aliens’ challenge to the initiation of removal proceedings against them on 

the basis that the immigration agency had discriminatorily initiated such 

Case: 14-13361 Date Filed: 07/22/2015 Page: 4 of 7 
5

proceedings in a selective manner based on their political affiliations. The Court 

held that § 1252(g) is not to be construed broadly as a “zipper” clause applying to 

the full universe of deportation-related claims, but instead as applying narrowly to 

only the three “discrete” governmental actions enumerated in that subsection. Id.

at 482, 119 S.Ct. at 943. The Court observed that § 1252(g)’s enumerated discrete 

acts—commencing proceedings, adjudicating cases, and executing removal 

orders—were those that the government had been engaging in as regular practice 

and for which it had the discretion to abandon its endeavors on such grounds as 

humanitarianism and its own convenience. Id. at 483-84, 119 S.Ct. at 943. 

The Court noted that the legislative intent underlying § 1252(g) was to streamline 

immigration proceedings by insulating from judicial review certain governmental 

decisions that were the product of prosecutorial discretion. Id. at 485-87, 119 S.Ct. 

at 944-45. In particular, it observed that § 1252(g) was a “discretion-protecting 

provision” that applied even to pending cases, as it was specifically directed at 

ameliorating “the deconstruction, fragmentation, and hence prolongation” of 

pre-existing removal proceedings. Id. at 487, 119 S.Ct. at 945.

In Gupta v. McGahey, 709 F.3d 1062, 1063-64 (11th Cir. 2013), we 

considered whether a district court lacked jurisdiction under § 1252(g) to consider 

an alien’s challenge under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 

91 S.Ct. 1999 (1971), to the constitutionality of his arrest and detention by 

Case: 14-13361 Date Filed: 07/22/2015 Page: 5 of 7 
6

immigration agents, and the agents’ search and seizure of his personal property, 

related to the initiation of removal proceedings against him. We concluded that the 

district court lacked subject matter jurisdiction under § 1252(g) to consider those 

claims, as they pertained to actions taken to secure him and prevent the perceived 

threat that he posed pending a final removal determination. Id. at 1065. As such, 

we determined that Gupta’s challenge to the governmental actions at issue 

necessarily qualified as a claim “arising from” a “decision . . . to commence 

proceedings” under § 1252(g), and affirmed the district court’s dismissal for lack 

of jurisdiction. Id. at 1065-66.

In De La Teja v. United States, 321 F.3d 1357, 1359 (11th Cir. 2003), we 

considered whether a district court lacked jurisdiction under § 1252(g) to consider 

an alien’s habeas corpus challenge under 28 U.S.C. § 2241 to the immigration 

agency’s initiation of removal proceedings against him on the basis that his 

removal would violate a prior vacated judicial removal order. We concluded that 

the district court lacked jurisdiction under § 1252(g) to consider that claim, as it 

challenged the agency’s “decision” to “commence proceedings” pursuant to 

AADC. Id. at 1365.

Here, the district court did not err by dismissing Wallace’s complaint for 

lack of subject matter jurisdiction. Wallace’s asserted claims were jurisdictionally 

barred under § 1252(g), based on that statutory provision’s plain language, its 

Case: 14-13361 Date Filed: 07/22/2015 Page: 6 of 7 
7

interpretation by the Supreme Court and our sister circuits, and this Court’s 

application of § 1252(g) to bar analogous challenges to the government’s initiation 

of removal proceedings. See AADC, 525 U.S. at 484-85, 119 S.Ct. at 944 (After 

referring to the “commendable exercise in administrative discretion” known as 

“deferred action” -- meaning that for humanitarian reasons no action will be taken 

to proceed against an apparently deportable alien – the Court held: “Section 

1252(g) seems clearly designed to give some measure of protection to ‘no deferred 

action’ decisions and similar discretionary determinations, providing that if they 

are reviewable at all, they at least will not be made the basis for separate rounds of 

judicial intervention outside the streamlined process that Congress has designed.”). 

See also Alvidres-Reyes v. Reno, 180 F.3d 199, 204-06 (5th Cir. 1999) (construing 

Section 1252(g) and the Supreme Court’s decision in AADC as authority for its 

holding that “federal courts lack jurisdiction to hear plaintiffs-aliens’ challenge to 

the Attorney General’s decision to decline to commence [deportation] 

proceedings”). Accord, Chapinski v. Ziglar, 278 F.3d 718, 720-21.

AFFIRMED.

Case: 14-13361 Date Filed: 07/22/2015 Page: 7 of 7