Revised August 23, 2000
UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 99-10316 ___________________________
FLORENTINA CARDOSO; AURORA MORAN; ARTURO MARTINEZ
Plaintiffs-Appellants,
VERSUS
JANET RENO, Attorney General of the United States,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court For the Northern District of Texas ___________________________________________________
July 11, 2000
Before POLITZ, DAVIS, Circuit Judges, and RESTANI, Judge1.
W. EUGENE DAVIS, Circuit Judge:
Plaintiffs-Appellants brought this action for injunctive and
declaratory relief under 8 U.S.C. § 1252 and section 301 of the
Immigration Act of 1990. They seek to compel the Attorney General
to adjust their immigration status, permit them to remain in the
United States, and provide them with work authorization. The
1 The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation.
1 district court dismissed the action, finding that 8 U.S.C. §
1252(g) deprived it of jurisdiction to review the action. For the
reasons that follow, we affirm.
I.
Appellants, Florentina Cardoso, Arturo Martinez, and Aurora
Moran are citizens of Mexico. Each Appellant illegally entered the
United States but contends that they are entitled to legal
permanent resident status.
Florentina Cardoso illegally entered the United States in July
1984 in order to join her husband, Cesario, who had been living in
the United States since 1982. Cesario had adjusted his own status
to that of temporary resident, later permanent resident, and sought
to adjust the status of his family pursuant to the Immigration and
Naturalization Service’s (“INS”) “Family Fairness Program.” The
Program, later superseded by Congress’s “Family Unity Program,” 104
Stat. 4978 (1990), provided the INS with regulations for suspending
deportation proceedings and issuing temporary work authorization to
the spouse and children of certain legalized aliens.
Cardoso alleges that she and her children received incorrect
information about the Program and that when she went to the INS
District Office to apply for an adjustment in status, the agents
directed her to a Detention and Deportation agent who prepared a
“record of deportable alien” for her and her children. Seven days
2 later, an Immigration Judge entered an “Order of Deportation” in
absentia against Florentina and her two children, Alfredo and Lucila
Cardoso.
Despite the deportation order, Florentina Cardoso again
requested, and this time received, voluntary departure and
employment authorization. The authorization permitted her to
legally work in the United States until September 11, 1999. In late
October 1996, Florentina attempted to adjust her status to that of
permanent resident. The INS denied her request for adjustment of
status and initiated deportation proceedings. According to Mrs.
Cardoso, an Immigration Judge terminated the proceedings upon
learning that the INS had granted her voluntary departure.
Nevertheless, Cardoso contends that she “has reason to believe that
she may be in jeopardy of being arrested and immediately deported
by the INS.” Cardoso bases this fear upon the fact that the INS has
already arrested and deported her son, Alfredo.2
Arturo Martinez, along with his wife, Eva Arroyo Martinez,
illegally entered the United States some time prior to 1979. In
1979, the INS apprehended Mr. Martinez and deported him to Mexico.
Shortly thereafter, Mr. Martinez illegally reentered the United
States, where he has resided ever since.
In 1991, Mrs. Martinez became a permanent resident and five
2 Mrs. Cardoso alleges that the INS deported Alfredo after the Dallas Police had arrested and charged him with driving an automobile with a suspended license.
3 years later, a naturalized citizen. Subsequently, Mrs. Martinez
filed an application for adjustment of status on behalf of her
husband. The INS denied the application on the ground that Martinez
had been deported in 1979 and had illegally reentered the United
States. Martinez contends that the INS erred in denying his
application of adjustment of status because it mistakenly classified
him as an unprotected alien, rather than a beneficiary of the Family
Unity Program. Martinez alleges that as a result of the INS’s
error, he now risks immediate deportation.
Aurora Moran was born in 1975. Her father, Manuel Moran, is
a lawful permanent resident. In February 1992, Moran filed for an
immigrant visa pursuant to 28 U.S.C. § 1153(a)(2)(A), which allots
visas to “qualified immigrants who are the spouses or children of
an alien lawfully admitted for permanent residence.” In 1995, prior
to her twenty-first birthday, a visa became available and Moran
filed for an adjustment of status to that of permanent resident.
In 1998, the INS completed consideration of Ms. Moran’s application,
denying her adjustment of status on the ground that she was no
longer an eligible child. Moran alleges that the INS erred in
denying her adjustment of status and that she now risks deportation
as a result.
On May 18, 1998, Plaintiffs Florentina Cardoso, Aurora Moran,
and Arturo Martinez filed this cause of action, originally as a
class action, alleging that the Attorney General violated a number
4 of federal immigration statutes. Plaintiffs seek declaratory and
injunctive relief requiring the Attorney General to “(a) allow them
to remain in the United States, (b) issue work authorization and,
when a visa is available to them (c) allow them to adjust status in
the United States.”
The Attorney General filed a Fed. R. Civ. P. 12(b)(6) motion
to dismiss on the grounds that 8 U.S.C. § 1252(g) had deprived the
court of jurisdiction, that the Plaintiffs had failed to establish
valid legal grounds for their complaint, and that the Plaintiffs had
failed to establish any prerequisite for class certification. The
district court, pursuant to the recommendations of the U.S.
Magistrate Judge, dismissed the complaint on the grounds of lack of
jurisdiction and failure to state a legally cognizable claim. This
appeal followed.
II.
We review a district court’s dismissal for lack of subject
matter jurisdiction de novo. John G. & Marie Stella Kennedy Mem’l
Found. V. Mauro, 21 F.3d 667, 670 (5th Cir. 1994). We will not
affirm the dismissal unless “it appears certain that [plaintiffs]
cannot prove any set of facts in support of [their] claim that would
entitle [them] to relief].” Id.
In October 1996, Congress passed the Illegal Immigration Reform
and Immigration Responsibility Act (“IIRIRA”), 110 Stat. 3009-546
5 (1996), substantially limiting judicial review of the Attorney
General’s immigration decisions. See Reno v. American-Arab Anti-
Discrimination Committee, 525 U.S. 471, 486 (1999)(“many provisions
of the IIRIRA are aimed at protecting the Executive’s discretion
from the courts – indeed, that can fairly be said to be the theme
of the legislation”). Section 1252(g) of the Act, which guided the
district court’s decision in this case, provides that:
Except as provided in this section and notwithstanding any other provisions of law, 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.
8 U.S.C. § 1252(g)(1999). This provision became effective on April
1, 1997 and “appl[ies] without limitation to claims arising from all
past, pending, or future exclusion, deportation, or removal3
proceedings.” IIRIRA § 306(c)(1), 110 Stat. 3009-625(1999).
The district court, in adopting the magistrate’s report, held
that the effect of 8 U.S.C. § 1252(g) “is to completely remove from
all courts, jurisdiction or the ability to hear any claim arising
out of the Attorney General’s decision or action to commence
proceedings, adjudicate immigration cases, or execute removal
3 The IIRIRA changed the nomenclature of immigration orders so that orders of deportation and orders of exclusion are both now referred to as “orders of removal.” See IIRIRA § 309(d)(2), 110 Stat. 3009 (1996)(“Any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.”). We use the words “removal” and “deportation” interchangeably.
6 orders, except to the extent that judicial review of that decision
or action is provided for in . . . 8 U.S.C. § 1252.” The court
explained that because both Cardoso and Martinez are subject to
pending removal orders, section 1252(g) deprived the court of
jurisdiction to adjudicate their claims. Further, the court held
that the Attorney General enjoys complete discretion in the granting
of benefits under the Family Unity Program, and as such, courts lack
jurisdiction to review such decisions.
Appellants argue that the district court misconstrued section
1252 and committed reversible error by failing to consider the
Supreme Court’s recent decision in Reno v. American-Arab Anti-
Discrimination Committee, 525 U.S. at 471. Appellants contend that
American-Arab strictly limited the jurisdiction-stripping effect of
section 1252(g), and that their claims fall outside of the section’s
limited reach.4
Although neither the magistrate judge nor district court cited
American-Arab, which indeed provides the controlling interpretation
of section 1252(g), this Court has long recognized that “reversal
is inappropriate if the ruling of the district court can be affirmed
on any grounds, regardless of whether those grounds were used by the
4 Appellants also contend that the district court and magistrate erred in characterizing their suit as a petition for habeas corpus. Although the district court did erroneously describe Plaintiffs’ suit, this error was harmless. The district court found that they lacked jurisdiction, not because they believed this action to be a habeas petition, but because of the claims it presented.
7 district court.” Bickford v. International Speedway Corp., 654 F.3d
1028, 1031 (5th Cir. 1981). As we will discuss, American-Arab,
section 1252, and this Court’s more recent jurisprudence amply
support the district court’s determination that it lacked
jurisdiction over each of the Plaintiffs’ claims.
In American-Arab, the Supreme Court held that section 1252(g)
does not deprive courts of jurisdiction to review “the universe of
deportation claims” but rather applies only to “three discrete
actions that the Attorney General may take: her ‘decision or action’
to ‘commence proceedings, adjudicate cases, or execute removal
orders.’” 525 U.S. at 482. As the Court explained:
There are of course many other decisions or actions that may be a part of the deportation process – such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order. It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.
Id. at 482.
Appellants contend that they are not challenging the Attorney
General’s decision to ‘commence proceedings,’ ‘adjudicate cases,’
or ‘execute removal orders.’ They characterize their claims as
challenges to the Attorney General’s denial of their requests for
adjustment of status. Because each of Plaintiffs’ claims is founded
on different factual backgrounds, we will analyze each separately.
8 A. Florentina Cardoso
Regardless of how she describes her claim, Florentina Cardoso
undeniably seeks to prevent the Attorney General from executing a
removal order. Cardoso is currently subject to a removal order
entered in absentia and seeks an adjustment in status so that she
may avoid that order. Indeed, in her complaint Cardoso, like the
other Plaintiffs, explains that she seeks to compel the Attorney
General to “allow [her] to remain in the United States.”
In Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999), this
Court declined to find jurisdiction under similar circumstances.
In that case, fifty illegal aliens residing in the United States,
only one of whom was currently in deportation proceedings, brought
a suit for mandamus, injunctive, and declaratory relief seeking to
compel the Attorney General to consider their applications for
suspension of deportation under a now-repealed provision of the
Immigration and Naturalization Act. Id. at 201. This Court held
that section 1252(g) deprived the district court of jurisdiction to
hear the case. We explained that although the plaintiffs did “not
explicitly pray for the court to order the Attorney General to
initiate proceedings or adjudicate their deportability,” if
successful, plaintiffs’ suit would nevertheless “compel the Attorney
General to do so in order to consider their applications for
suspension of deportation.” Id. at 205.
9 Similarly, if Cardoso prevails in the instant action, her suit
would preclude the Attorney General from executing an outstanding
removal order against her. Moreover, Cardoso and the other
Plaintiffs in this action, unlike the plaintiffs in Alvidres-Reyes,
explicitly seek to enjoin the Attorney General from removing them
from the United States. Although the Supreme Court’s decision in
American-Arab narrowly construed the reach of section 1252(g),
nothing in that decision permits aliens to make an end-run around
the terms of the statute by simply characterizing their complaint
as a challenge to a denial of adjustment of status, rather than a
challenge to the execution of a removal order. Cf. Ray v. Reno, 3
F.Supp.2d 1249, 1251 (D. Utah 1998)(holding that section 1252(g)
deprived the court of jurisdiction to enjoin the Attorney General
from executing a removal order so that defendant could seek an
adjustment of status). To permit such challenges would “lead to the
deconstruction, fragmentation, and hence prolongation of removal
proceedings at which the Supreme Court concluded that § 1252(g) is
directed.” Alvidres-Reyes, 180 F.3d at 205.
This is not to say that section 1252(g) insulates the Attorney
General from any challenge that may prevent her from ultimately
executing removal orders. As the Supreme Court noted in American-
Arab, section 1252(g) does not prevent plaintiffs from challenging
“other decisions or actions that may be a part of the deportation
process - such as the decisions to open an investigation, surveil
10 the suspected violator . . ., or refuse reconsideration of a
[removal] order.” American-Arab, 525 U.S. at 482. Similarly, this
Court has recognized that section 1252(g) does not bar courts from
reviewing an alien detention order, because such an order, “while
intimately related to efforts to deport, is not itself a decision
to ‘execute removal orders’ and thus does not implicate section
1252(g).” Zadvydas v. Underdown, 185 F.3d 279, 285 (5th Cir. 1999).
See also Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 303-304 (5th
Cir. 1999)(holding that 1252(g) does not preclude challenge to final
deportation order); Paunescu v. INS, 76 F. Supp.2d 896, 899 (N.D.
Ill. 1999)(holding that 1252(g) does not apply where plaintiffs’
claims do not “involve any of the ‘specific steps in the deportation
process’”). In this case, however, Cardoso does not simply
challenge the Attorney General’s ability to take steps toward
removal, such as opening an investigation or surveilling a suspect.
Nor does Cardoso merely challenge a decision that, although
intimately related to the execution of a removal order, does not
implicate the actual execution of such an order. Instead, Cardoso
seeks an injunction commanding the Attorney General to adjust her
immigration status and precluding the Attorney General from
executing pending removal orders. Section 1252(g) precludes us from
considering such a claim. Cf. Sabhari v. Reno, 197 F.3d 938, 942
(8th Cir. 1999)(holding that where plaintiff’s petition for
adjustment of status was “separate and distinct from any matter
11 related to an order of deportation,” 1252(g) did not preclude
jurisdiction). As we explained in Alvidres-Reyes, “the
Congressional aim of § 1252(g) is to protect from judicial
intervention the Attorney General’s long-established discretion to
decide whether and when to prosecute or adjudicate removal
proceedings or to execute removal orders.” Id. at 201.
Accordingly, the district court did not err in declining to exercise
jurisdiction over Cardoso’s complaint.
B. Arturo Martinez
Arturo Martinez illegally reentered the United States in 1979
and is therefore currently subject to summary removal. See 8 U.S.C.
§ 1231(a)(5)(1999)(“If the Attorney General finds that an alien has
reentered the United States illegally after having been removed or
having departed voluntarily, under an order of removal, the prior
order of removal is reinstated from its original date and is not
subject to being reopened or reviewed, the alien is not eligible and
may not apply for any relief under this chapter, and the alien shall
be removed under the prior order at any time after the reentry.”).
Although Martinez, like Cardoso, couches his claim as a challenge
to the immigration judge’s denial of his adjustment of status, he
admittedly seeks review of this decision in order to stave-off
deportation. Indeed, like Cardoso, Moran explicitly seeks to compel
the Attorney General to “allow [him] to remain in the United
12 States.” Because this challenge is tantamount to a challenge to the
execution of a removal order, section 1252(g) bars courts from
exercising jurisdiction. Cf. Lopez-Herrera v. INS, 203 F.3d 835
(10th Cir. 2000)(unpublished disposition)(holding that 1252(g) bars
review of a request for stay of deportation where removal order was
based upon petitioner’s illegal reentry); Zsimopoulos v. Reno, 1998
WL 437266, *1 (E.D. Pa. Jul 15, 1998)(holding that section 1252(g)
bars courts from reviewing challenges to removal orders where
removal order was based upon petitioner’s illegal reentry because
such challenges constitute “review of a decision of the Attorney
General executing a removal order”); Mendez-Tapia v. Sonchik, 998
F.Supp. 1105, 1107 (D. Ariz. 1998)(same); Ayala v. Reno, 995 F.Supp.
717, 717 (W.D. Tex. 1998)(same). Accordingly, the district court
did not err in finding that it lacked jurisdiction to review
Martinez’s claim.
C. Aurora Moran
Unlike Martinez and Cardoso, Aurora Moran has never faced a
removal order. Although Moran contends that she fears deportation
because the INS denied her request for an adjustment of status, she
does not allege that the Attorney General has initiated removal
proceedings. Moran seeks nothing more than review of the
immigration judge’s denial of her request for adjustment of status.
As a matter of jurisdiction, courts may not review the
13 administrative decisions of the INS unless the appellant has first
exhausted “all administrative remedies.” I.N.A. 242(d), 8 U.S.C.
1252(d)(1999). In this case, although Moran may not directly appeal
the immigration judge’s denial of her request for adjustment of
status, she may, nevertheless, renew her request upon the
commencement of removal proceedings. See 8 C.F.R. §
245.2(a)(5)(ii)(1999)(“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
[removal] proceedings.”); Austin T. Fragomen, Jr. et al.,
Immigration Procedures Handbook 13-91 (1999)(“There is no direct
appeal from [an adjustment of status] denial. . . . If the alien
believes that the adjustment application was wrongly denied, he or
she has the right to reapply for adjustment of status as a part of
deportation proceedings brought against him or her by the INS. The
alien has a right to appeal the denial of an adjustment application
when ... made during a removal proceeding.”) As such, Moran has not
yet exhausted her administrative remedies and this Court may not
exercise jurisdiction. Accord McBrearty v. Perryman, 2000 WL
568337, *1 (7th Cir. May 11, 2000)(holding that plaintiff had failed
to exhaust remedies on adjustment of status claim where “they could
obtain review of the district director’s decision by the Board of
Immigration Appeals if and when the immigration service institutes
removal . . . proceedings against them”); Randall v. Meese, 854 F.2d
14 472, 482 (D.C. Cir. 1988)(declining to review denial of adjustment
of status where deportation proceedings had not commenced); Chan v.
Reno, 916 F.Supp. 1289, 1297-99 (S.D. N.Y. 1996)(holding that
exhaustion of administrative remedies doctrine precludes plaintiffs
from seeking judicial review where they have not been subjected to
deportation proceedings).
III.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.