           Case: 15-14948   Date Filed: 09/19/2016   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14948
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-21828-DPG



LUIS ENRIQUE DANIEL,

                                                            Plaintiff-Appellant,

                                   versus

ANOUCHKA CASTRO,
USCIS Miami Field Office Director,
U.S. ATTORNEY GENERAL,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (September 19, 2016)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Luis Daniel, a Cuban citizen and native, filed this lawsuit under the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, 704, the Declaratory

Judgment Act, 28 U.S.C. § 2201, and 28 U.S.C. § 1331, requesting judicial review

of a decision of the United States Citizenship and Immigration Service (the

“Service”) regarding his application for adjustment of status under the Cuban

Refugee Adjustment Act (“CAA”), Pub. L. No. 89-732, 80 Stat. 1161, § 1

(codified as amended at 8 U.S.C. § 1255, historical note). The Service denied

Daniel’s CAA application because, although he was statutorily eligible for

adjustment of status, significant adverse factors were present “which show[ed] that

discretion should not be exercised in [his] favor.” Thereafter, Daniel timely filed a

motion for reconsideration, which the Service denied in a short, written decision.

      In his complaint filed in federal district court, Daniel alleged that the Service

committed procedural error in denying his motion for reconsideration, and he

requested that his case be remanded to the Service for further consideration.

Daniel specifically alleged that the Service failed to explain the basis for denying

his motion for reconsideration, which, he asserted, was required by 8 C.F.R.

§ 103.3(a)(1)(i) (“When a Service officer denies an application or petition filed

under § 103.2 of this part, the officer shall explain in writing the specific reasons

for denial.”).




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      The government 1 moved to dismiss the complaint on two grounds: (1) to the

extent that Daniel was challenging the underlying discretionary denial of his CAA

application, the district court lacked subject-matter jurisdiction because 8 U.S.C.

§ 1252(a)(2)(B)(ii) precluded review of immigration decisions committed to the

discretion of the Attorney General or the Department of Homeland Security

(“DHS”) Secretary, and, by extension, the Service; and (2) Daniel’s stand-alone

procedural challenge, which the government did not dispute could be brought, was

meritless because the Service adequately explained its reasons for denying

Daniel’s motion for reconsideration. In response, Daniel conceded that review of

the discretionary denial of his CAA application would be barred by

§ 1252(a)(2)(B)(ii) “[b]ecause Mr. Daniel’s [CAA application] is under the

purview of the Attorney General’s discretion.” But, he asserted, the bar did not

apply to his complaint because he was challenging only the Service’s alleged

procedural error in ruling upon his motion for reconsideration.

      In granting the government’s motion to dismiss, the district court found that

Daniel, despite his claim to the contrary, was indirectly attempting to obtain review

of the underlying discretionary denial of his CAA application, as well as the

discretionary denial of his motion to reconsider. His claim of procedural error, the

court stated, was nothing more than a “game of semantics” aimed at circumventing


      1
          We refer to the named defendants collectively as the “government.”
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the jurisdictional bar. Thus, the court dismissed the complaint for lack of subject-

matter jurisdiction. In the alternative, the court found that, even if it exercised

jurisdiction solely to review the alleged procedural error, Daniel failed to state a

claim for which relief could be granted because the decision adequately complied

with the procedural regulation relied upon by Daniel. Daniel now appeals.

       We review de novo a district court’s grant of a motion to dismiss, whether

for lack of subject-matter jurisdiction or for failure to state a claim. See Perez v.

U.S. Bureau of Citizenship and Immigration Servs., 774 F.3d 960, 965 (11th Cir.

2014). To avoid dismissal for failure to state a claim, a complaint must contain

sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S. Ct. 1955, 1965, 1974

(2007).

      The APA permits persons aggrieved by final agency action to obtain judicial

review in federal court where “there is no other adequate remedy in a court.”2 See

5 U.S.C. §§ 702, 704. An agency action is final when the action both (1) marks the

end of the agency’s decision-making process and (2) determines rights or

obligations or has legal consequences. Perez, 774 F.3d at 965. A reviewing court

shall, among other things, set aside agency action found to be “arbitrary,


      2
          “Although the APA independently does not confer subject-matter jurisdiction, 28
U.S.C. § 1331 confers jurisdiction on federal judges to review agency action under federal-
question jurisdiction.” Perez, 774 F.3d at 965.
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capricious, an abuse of discretion, or otherwise not in accordance with law,” or

“without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D).

However, the APA “expressly excepts review under its provisions where ‘statutes

preclude judicial review,’ or ‘agency action is committed to agency discretion by

law.’” Perez, 774 F.3d at 965 (quoting 5 U.S.C. § 701(a)).

      This case implicates a question of first impression:                          whether the

jurisdictional bar on review of discretionary decisions of the Attorney General or

the DHS Secretary, see 8 U.S.C. § 1252(a)(2)(B)(ii), applies to discretionary

adjustment-of-status determinations under the CAA. We discuss this issue briefly,

but, ultimately, we need not and do not resolve the matter because the issue is not

properly before us on appeal.

      Cuban nationals may apply for and obtain adjustment of status under the

CAA rather than 8 U.S.C. § 1255, the general statute governing adjustment-of-

status decisions. 3 Provided that the Cuban applicant meets the statutory-eligibility


      3
          Section 1 of the CAA provides, in relevant part, as follows:

                Notwithstanding the provisions of [INA § 245(c), 8 U.S.C. §
                1255(c)], the status of any alien who is a native or citizen of Cuba
                and who has been inspected and admitted or paroled into the
                United States subsequent to January 1, 1959 and has been
                physically present in the United States for at least one year, may be
                adjusted by the Attorney General, in his discretion and under such
                regulations as he may prescribe, to that of an alien lawfully
                admitted for permanent residence if the alien makes an application
                for such adjustment, and the alien is eligible to receive an
                immigrant visa and is admissible to the United States for
                permanent residence.
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requirements of the CAA, see Toro v. Sec’y, U.S. Dep’t of Homeland Sec., 707

F.3d 1224, 1228 (11th Cir. 2013) (listing these requirements), the Attorney General

may, in her discretion, adjust the applicant’s status to that of a permanent resident. 4

Perez, 774 F.3d at 965.

       Under the Immigration and Nationality Act (“INA”), courts do not have

jurisdiction to review “discretionary decisions or actions of the Attorney General

or DHS Secretary.” Id.; 8 U.S.C. § 1252(a)(2)(B)(ii).5 Because the [t]he ultimate

decision whether to grant adjustment of status under the CAA is discretionary,”

Perez, 774 F.3d at 965, section 1252(a)(2)(B)(ii) would appear to bar review of

discretionary decisions under the CAA, an understanding shared by both parties

before the district court. That statutory bar, in turn, would preclude review under

the APA.       See 5 U.S.C. § 701(a) (APA review not available where “statutes

preclude judicial review”).

       Daniel argues, for the first time on appeal, that § 1252(a)(2)(B)(ii) applies to

the INA only, not to the separate CAA.                   Daniel’s argument hinges on the



       4
         The Service is an agency within the DHS, and “[w]hile the language of the INA gives
authority to adjust status to the Attorney General, Congress has allocated jurisdiction over
adjustment applications to both DHS (and its delegate in USCIS) and the Department of Justice.”
Perez, 774 F.3d at 965 nn. 2 & 3.
       5
           Section § 1252(a)(2)(B)(ii) provides, “Notwithstanding any other provision of law . . . ,
no court shall have jurisdiction to review . . . any . . . decision or action of the Attorney General
or the Secretary of Homeland Security the authority for which is specified under this subchapter
to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . .”
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somewhat anomalous status of the CAA, which is codified in the U.S. Code as a

“historical note” to § 1255. See Perez, 774 F.3d at 967; Toro, 707 F.3d at 1226.

For § 1252(a)(2)(B)(ii) to apply, the authority for the decision must be “specified

under this subchapter to be in the discretion of the Attorney General or the

Secretary of Homeland Security.” “‘[T]his subchapter’ refers to Title 8, Chapter

12, Subchapter II, of the United States Code, codified at 8 U.S.C. §§ 1151–1381

and titled ‘Immigration.’” Kucana v. Holder, 558 U.S. 233, 239 n.3, 130 S. Ct.

827, 832 n.3 (2010); Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1361 (11th Cir.

2006). Thus, § 1252(a)(2)(B)(ii) bars review of decisions that are specified by

Congress in Subchapter II to be within the discretion of the Attorney General or

DHS Secretary. Zafar, 461 F.3d at 1361. While it is obvious that Congress has

committed adjustment-of-status decisions under the CAA to the Attorney

General’s discretion, Daniel contends that the CAA is not part of Subchapter II and

therefore falls outside the ambit of § 1252(a)(2)(B)(ii)’s jurisdictional bar.

      We do not resolve this issue because Daniel expressly conceded to the

district court that the discretionary denial of his CAA application was

unreviewable under § 1252(a)(2)(B)(ii). Specifically, Daniel asserted in response

to the government’s motion to dismiss that § 1252(a)(2)(B)(ii) applied “[b]ecause

Mr. Daniel’s [CAA application] is under the purview of the Attorney General’s

discretion.” He cannot now be heard to complain that the district court committed


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an error that he invited the court to make. See Pensacola Motor Sales Inc. v. E.

Shore Toyota, LLC, 684 F.3d 1211, 1231 (11th Cir. 2012) (“A party that invites an

error cannot complain when its invitation is accepted.”). Consequently, to the

extent Daniel’s challenge to the Service’s denial of his motion for reconsideration

necessarily implicated review of the underlying discretionary denial of his CAA

application, we affirm the district court’s dismissal for lack of subject-matter

jurisdiction.

      Turning to Daniel’s stand-alone claim of procedural error regarding the

denial of his motion for reconsideration, we again must address our jurisdiction to

review the issue.     Daniel sought judicial review under the APA, which, as

explained above, permits review of final agency action for which no other adequate

remedy in court is available. See 5 U.S.C. § 704. These requirements appear to be

satisfied here. The denial of Daniel’s motion for reconsideration was the final

decision of the Service relating to his CAA application, and it had legal

consequences for his immigration status. See Perez, 774 F.3d at 965. Daniel also

may have no other adequate remedy to challenge that denial because, by

regulation, the underlying denial of his application for adjustment of status under

the CAA is non-appealable. See id. at 966. And “[i]t is rudimentary administrative

law that discretion as to the substance of the ultimate decision does not confer

discretion to ignore the required procedures of decisionmaking.” Bennett v. Spear,


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520 U.S. 154, 172, 117 S. Ct. 1154, 1166 (1997); see 5 U.S.C. § 706(2)(D) (a

reviewing court “shall hold unlawful and set aside agency action, findings, and

conclusions found to be without observance of procedure required by law”).

      In light of the “strong presumption in favor of judicial review of

administrative action,” I.N.S. v. St. Cyr, 533 U.S. 289, 298, 121 S. Ct. 2271, 2278

(2001), and the absence of any apparent bar to our exercise of jurisdiction, we find

that jurisdiction exists under the APA and 28 U.S.C. § 1331 to review Daniel’s

limited claim of procedural error.

      Daniel asserts that the Service’s denial of his motion for reconsideration

violated 8 C.F.R. § 103.3(a)(1)(i), which states that when a Service officer denies

an application or petition filed to obtain benefits or adjust status, “the officer shall

explain in writing the specific reasons for denial.” 8 C.F.R. § 103.3(a)(1)(i).

However, while § 103.3(a)(1)(i) applied to the denial of his CAA application,

Daniel is incorrect that this regulation applied to the denial of his motion for

reconsideration. Instead, motions for reconsideration or reopening are governed by

a separate regulation, 8 C.F.R. § 103.5, which states that “[t]he provisions of

§ 103.3(a)(2)(x) . . . apply to decisions on motions.” 8 C.F.R. § 103.5(a)(7). And

§ 103.3(a)(2)(x), in turn, merely requires that “[t]he decision must be in writing.”

8 C.F.R. § 103.3(a)(2)(x). Accordingly, to comply with the applicable regulation,




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the Service’s denial of Daniel’s motion for reconsideration simply needed to be in

writing, which it was. So, no procedural error occurred.

         But even if § 103.3(a)(1)(i) applied, Daniel still has not stated a plausible

claim.     The decision denying his motion for reconsideration succinctly but

adequately explained the “specific reasons for the denial.”                 The Service

(a) summarized the reasons for the initial denial of his CAA application, (b) stated

that it had “thoroughly and carefully reviewed [his] Motion and supporting

documents,” (c) stated that it had “determined that no new facts, or documentary

evidence was filed,” (d) and found that the “original decision denying adjustment

of status appears to be correct and supported by case law.” Daniel has pointed to

no regulation requiring the Service to address his motion for reconsideration in

detail or to explicitly respond to each of his arguments. And Daniel cannot, as the

district court recognized, obtain review of the merits of the decision through the

guise of claiming “procedural” error. In sum, no plausible basis exists to conclude

that the Service failed to comply with its procedural obligations.

         For the foregoing reasons, we affirm the judgment of the district court.

         AFFIRMED.




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