Petrenko-Gunter v. Upchurch

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 3, 2006
• Docket: 05-11249
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS October 2, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 05-11249 Summary Calendar

LILIA E. PETRENKO-GUNTER,

Plaintiff-Appellant,

v.

EVELYN UPCHURCH, Individually and in her official capacity as Director of the Texas Service Center of the BCIS; ANGELA K. BARROWS, Individually and in her official capacity as Director of BCIS for the Dallas District; R LEE, Individually and in her official capacity as Adjudications Officer of the BCIS for the Dallas District; MICHAEL CHERTOFF, SECRETARY, in his official capacity as Secretary of the Department of Homeland Security; ALBERTO GONZALES, U.S. Attorney General,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas (04-CV-2691)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Lilia Petrenko-Gunter appeals the district court’s

determination that it lacked jurisdiction to decide the merits of

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. her claim for injunctive and declaratory relief under the

Administrative Procedure Act (APA). We affirm.

After entering the United States in 2002 as the fiancé of a

United States citizen who she subsequently married, Gunter filed

an application to adjust her status to that of a legal resident.

The immigration officer denied her application on February 24,

2004, for non-compliance with the statutory requirement of proof

that she would not become a public charge. Gunter sought

declaratory and injunctive relief from the district court. The

district court dismissed her complaint on July 18, 2005, for lack

of subject matter jurisdiction, and denied her motion for a new

trial on September 12, 2005. Gunter now appeals the district

court’s decision. Our standard of review on appeal from

dismissal for lack of subject matter jurisdiction is de novo.

See Gandy Nursery, Inc. v. States, 318 F.3d 631, 636 (5th Cir.

2003).

Gunter argues that the immigration officer’s decision

denying her application of adjustment status was a final decision

for which subject matter jurisdiction exists pursuant to the APA,

5 U.S.C. § 702–706. Under this Court’s precedent, a district

court lacks jurisdiction to review an agency’s non-final

decisions. Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir.

2000)(“As a matter of jurisdiction, courts may not review the

administrative decisions of the INS unless the appellant has

2 first exhausted ‘all administrative remedies.’”)(citation

omitted). Because an individual denied an adjustment of status

can renew that request for adjustment of status upon the

commencement of removal proceedings, Gunter has not yet exhausted

her administrative remedies. See 8 C.F.R. §

245.2(a)(5)(ii)(1999).

Gunter attempts to distinguish her case from Cardoso,

arguing that the earlier case was not decided under the APA.1 It

is true that the plaintiff in Cardoso asserted jurisdiction under

a different statute, but both statutes require final agency

action as a prerequisite to judicial review. The APA, like 8

U.S.C. § 1252(d), which we considered in Cardoso, makes it clear

that only “[a]gency action made reviewable by statute and final

agency action for which there is no other adequate remedy in a

court are subject to judicial review.” 5 U.S.C. § 704. Cardoso,

which held that denial of a request for adjustment of status is

not a final agency action for which there are no other remedies,

thus controls. 216 F.3d at 518.

Gunter also argues a due process violation based on the

impact of the discretionary decision on her personal liberty.

However, failure to receive relief that is purely discretionary

1 Gunter also argues that Cardoso conflicts with a Third Circuit case, Pinho v. Gonzales, 432 F.3d 193 (3rd Cir. 2005). Pinho, however, concerned a final determination of eligibility, as opposed to the sort of non-final discretionary decision that Gunter has the opportunity.

3 in nature does not amount to a deprivation of a liberty interest.

See Garcia-Mir v. Meese, 788 F.2d 1446, 1452 (11th Cir. 1986).

For the foregoing reasons, we AFFIRM the district court’s

determination that it lacked jurisdiction.