Benjamin Slappendel v. Lorne Miller

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 30, 2022
• Docket: 21-2551
• Status: Unpublished

Opinion

United States Court of Appeals For the Eighth Circuit ___________________________

No. 21-2551 ___________________________

Benjamin Slappendel; Katherine Amerson

lllllllllllllllllllllPlaintiffs - Appellants

v.

Lorne Miller, Associate Director, Nebraska Service Center; John/Jane Doe, Adjudicator; Merrick B. Garland, Attorney General; Alejandro Mayorkas, Acting Secretary of Homeland Security; Tracy Renaud, Director, U.S. Citizenship and Immigration Services

lllllllllllllllllllllDefendants - Appellees ____________

Appeal from United States District Court for the District of Nebraska - Lincoln ____________

Submitted: November 23, 2022 Filed: November 30, 2022 [Unpublished] ____________

Before LOKEN, MELLOY, and STRAS, Circuit Judges. ____________

PER CURIAM.

Benjamin Slappendel and his wife appeal the dismissal of their lawsuit seeking to reverse the denial of his application for an immigrant visa. See Al- Saadoon v. Barr, 973 F.3d 794, 800 (8th Cir. 2020) (reviewing the grant of a motion to dismiss de novo). The district court 1 dismissed for lack of subject-matter jurisdiction because “decision[s] . . . to grant or deny a[n] [immigration] waiver” are unreviewable in these circumstances. See 8 U.S.C. § 1182(a)(2)(A)(i)(I), (h); see also 8 U.S.C. § 1252(a)(2)(B)(i) (“[N]o court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section 1182(h).”). We affirm the district court’s reasoning but modify the dismissal to be without prejudice. See County of Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir. 2004) (“A district court is generally barred from dismissing a case with prejudice if it concludes subject[-]matter jurisdiction is absent.”). ______________________________

1 The Honorable Robert F. Rossiter, Jr., then United States District Judge for the District of Nebraska, now Chief Judge. -2-