     Case: 18-40140      Document: 00514702176        Page: 1     Date Filed: 10/29/2018




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                   No. 18-40140                                FILED
                                 Summary Calendar                       October 29, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
JOSE LUIS VELASQUEZ; HERLINDA VELASQUEZ,

              Plaintiffs - Appellants

v.

KIRSTJEN M. NIELSEN, SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY; L. FRANCIS CISSNA, Director of U.S.
Citizenship and Immigration Services; MARIO ORTIZ, District Director of
U.S. Citizenship and Immigration Services; NORMA A. LIMON, Field Office
Director; JESSE MENDEZ, former Supervisory Adjudications Officer; RON
ROSENBERG, Acting Chief of Administrative Appeals Office; JEFFERSON
B. SESSIONS, III, U. S. ATTORNEY GENERAL; RYAN PATRICK, U.S.
Attorney for the Southern District of Texas,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:15-CV-43


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*




      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 18-40140
      Jose Luis Velasquez and Herlinda Velasquez appeal the district court’s
judgment dismissing their suit against the Department of Homeland Security
(DHS) and a number of related official actors. They seek a declaration that
United States Citizenship and Immigration Services (USCIS) officials erred,
first, in rejecting Mr. Velasquez’s applications for waiver of grounds of
inadmissibility and adjustment of status, and second, in rejecting their request
for additional review of Mr. Velasquez’s applications. They also appeal the
district court’s dismissal of their claim for a declaration that DHS violated
appellants’ rights under the Freedom of Information Act (FOIA) based on its
untimely response to their document request. Because the district court lacked
jurisdiction to hear these claims, we AFFIRM.
                                       I.
      Mr. Velasquez, a native of El Salvador, entered the United States
illegally at an unknown time in the 1970s. He was later detained by the
Immigration and Naturalization Service (INS), but released on bond on
September 1, 1983. While out on bond Mr. Velasquez was arrested, charged,
and convicted of voluntary manslaughter, for which he was sentenced to seven
years of imprisonment.     He was deported to El Salvador in 1986.           Mr.
Velasquez illegally re-entered the United States and voluntarily departed in
1989. In 1993, Mr. Velasquez applied for a visa in his name (but falsely
claiming Mexican nationality) and entered the United States. In 1999, Leticia
Leal-De Velasquez filed a Form I-130, Petition for Alien Relative, claiming that
she and Mr. Velasquez had been married in Texas earlier that year. She also
claimed that Mr. Velasquez was born in Mexico. He later applied for and
obtained a multiple-entry visa to enter the United States to pursue adjustment
of status using a (presumably false) Mexican birth certificate.
      Because of his conviction for voluntary manslaughter, Mr. Velasquez
was first required to obtain a waiver of his criminal ground of inadmissibility
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                                 No. 18-40140
in order to further process his application for adjustment of status. In 2008,
however, Mr. Velasquez’s waiver application was dismissed as a result of his
divorce from Leticia.
      That year, Mr. Velasquez again married, this time to Herlinda
Velasquez. She filed a new Form I-130, application for adjustment of status,
and request for waiver of criminal ground of inadmissibility on his behalf. In
2013, the USCIS denied Mr. Velasquez’s application for waiver of criminal
ground of inadmissibility because he had failed to establish that his removal
would result in “extreme hardship” to his qualifying relatives under 8 U.S.C. §
1182(i). Without the waiver, Mr. Velasquez was deemed inadmissible to the
United States based on his commission of a “crime involving moral turpitude.”
His application for adjustment of status was denied in a separate order.
Subsequently, the USCIS Administrative Appeals Office (AAO) denied
Velasquez’s appeal as untimely, which all parties now agree was a mistake.
Appellants filed the instant action, at which point the AAO sua sponte
reopened Velasquez’s administrative appeal and remanded the case to the
USCIS. USCIS again denied Velasquez’s application for a waiver, based in
part on an application of 8 C.F.R. § 212.7(d), which regulates the use of
discretion to grant waivers when an alien has been convicted of a “violent or
dangerous crime.”
      At that time, appellants moved to amend their complaint to add new
claims, while the government moved to dismiss the complaint as mooted. The
district court denied the government’s motion to dismiss and granted
appellants’ motion to amend.        Further amendments followed.             All told,
appellants asserted three claims.
      First, appellants argued that USCIS erred in denying their application
for a waiver of Mr. Velasquez’s inadmissibility based on his criminal conviction
because   A)   USCIS     incorrectly   classified    Mr.      Velasquez’s   voluntary
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                                       No. 18-40140
manslaughter conviction as a “crime involving moral turpitude”; B) 8 C.F.R. §
212.7(d) was improperly applied retroactively in Mr. Velasquez’s case; C) 8
C.F.R. § 212.7(d) was promulgated without sufficient statutory authority; and
D) 8 C.F.R. § 212.7(d) is void for vagueness. Appellants requested declaratory
relief from the district court.
       Second, appellants sought a declaration that USCIS violated their Due
Process rights by failing to commence removal proceedings against Mr.
Velasquez, which would have opened procedural avenues to seek further
review of USCIS’s decision, leading, eventually, to review by this court.
       Third, appellants argued that DHS violated FOIA by failing to respond
in a timely manner to their FOIA request, and by redacting certain documents
relating to that request.          Appellants further argued that these actions
constituted retaliation against appellants’ counsel, and asked for unspecified
declaratory relief.
       The district court dismissed appellants’ second and third claims. The
court found that it lacked jurisdiction to hear appellants’ Due Process claim
based on the provisions of 8 U.S.C. § 1252(g) 1 or, alternatively, because the
appellants sought an advisory opinion. It found that their FOIA untimeliness
claims were mooted when the agency released the requested documents to the
appellants, and further, that appellants had failed to exhaust administrative
remedies with regard to the FOIA completeness claim. Finally, it found that
appellants sought an advisory opinion with respect to their retaliation claim. 2




       1  The relevant provision of 8 U.S.C. § 1252(g) reads as follows: “[N]o 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.”
        2 Appellants do not press either their FOIA completeness or retaliation claims on

appeal. However, they continue to press their untimeliness claim.
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                                        No. 18-40140
      The district court initially declined to dismiss appellants’ first ground for
relief seeking a declaratory judgment regarding 8 C.F.R. § 212.7(d). After the
government filed a motion for summary judgment, however, arguing that the
court lacked jurisdiction to hear this claim based on 8 U.S.C. § 1182(h)’s bar on
review of discretionary waiver decisions, the court sua sponte dismissed for
lack of jurisdiction. 3
                                              II.
      On appeal, appellants contend that the district court erred in a number
of ways. We will address each in turn.
                                               A.
      First, appellants contend that their claims do not properly fall within §
1182(h)’s jurisdictional bar because they are not asking for review of a
discretionary decision, but instead, they are asking for review of rules applied


      3   The relevant portions of 8 U.S.C. § 1182(h) read as follows:

      The Attorney General may, in his discretion, waive the application of subparagraph[]
      (A)(i)(I) [deeming aliens convicted of a crime involving moral turpitude
      inadmissible]…, if –
              (1)
                 (A) in the case of any immigrant it is established to the satisfaction of the
                 Attorney General that –
                     (i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of
                     such subsection or the activities for which the alien is inadmissible
                     occurred more than 15 years before the date of the alien’s application for
                     a visa, admission, or adjustment of status,
                     (ii) the admission to the United States of such alien would not be
                     contrary to the national welfare, safety, or security of the United States,
                     and
                     (iii) the alien has been rehabilitated; or
                 (B) in the case of an immigrant who is the spouse…of a citizen of the United
                 States…if it is established to the satisfaction of the Attorney General that
                 the alien’s denial of admission would result in extreme hardship to the
                 United States citizen or lawfully resident spouse
      ….
       No court shall have jurisdiction to review a decision of the Attorney General to grant
      or deny a waiver under this subsection.

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                                       No. 18-40140
by the USCIS, which they argue is a review authorized by 8 U.S.C. §
1252(a)(2)(D). 4 The district court considered this argument, but determined
that because Mr. Velasquez was subject to an order of removal, appellants were
required to petition this court directly. However, now appellants argue that,
contrary to the finding of the district court, Mr. Velasquez is not in removal
proceedings, and that this fact (combined with the fact that his claim involves
alleged legal errors by the USCIS) means that there is no bar to jurisdiction.
       We need not weigh into this dispute directly, because a further
jurisdictional problem bars appellants’ claim. Our precedent makes clear that
the district courts do not have jurisdiction to review a denial of adjustment of
status, regardless of whether that denial is based on discretionary factors, and
regardless of whether it comes in the context of removal proceedings. In
Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000), this court considered a suit by
three aliens seeking a number of remedies after the then-INS denied their
applications for adjustment of status. While two of those aliens were subject
to orders of removal and sought an injunction preventing those orders from
being executed, one alien, Aurora Moran, was not.                        Furthermore, like
appellants, she was arguing that INS made a legal error in denying her
petition. Despite this fact, the court held that Moran could not challenge the
immigration judge’s decision to deny her request for adjustment of status in
the federal district court, but must instead wait to do so if and when removal
proceedings were commenced.               Id. at 517-18.         Mr. Velasquez’s case is
indistinguishable from that of Moran in Cardoso.




       48 U.S.C. § 1252(a)(2)(D) reads as follows: “Nothing in subparagraph (B) or (C), or in
any other provision of this chapter (other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in accordance
with this section.”
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                                       No. 18-40140
       Nonetheless, appellants repeatedly insist that they are not seeking
review of the denial of their petition for adjustment of status, but instead are
seeking to gain a declaration that the incorrect legal standards were applied
to their waiver applications. This purported distinction is spurious. Receiving
a waiver was a necessary condition for Mr. Velasquez to successfully adjust his
status. The two are inseparable. Furthermore, if a party could receive a legal
ruling by a district court (and, by extension, this court) on the correctness of a
ruling by the USCIS simply by labeling it a request for declaratory relief, then
our decision in Cardoso (and the statutory review process enacted by Congress)
would be made meaningless. Therefore, we find that the district court correctly
dismissed appellants’ claim for lack of jurisdiction. 5
                                              B.
       Second, appellants argue that the district court erred by dismissing, for
lack of jurisdiction, their request to compel USCIS to initiate removal
proceedings. Although this claim escapes the reach of our holding in Cardoso
inasmuch as it does not involve review of an adjustment of status decision, the
district court correctly found that it lacked jurisdiction to hear this claim.
       Under 8 U.S.C. § 1252(g), jurisdiction is withdrawn from the federal
courts 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.” We have previously construed this provision to bar the district courts
from hearing any claim seeking to compel the initiation of removal




       5 Appellants also argue that the district court erred by (allegedly) failing to consider
exhibits that appellants attached to their complaint, which would have demonstrated that
the appellant was not subject to an order of removal, contrary to the district court’s finding.
Given that whether Mr. Velasquez was subject to an order of removal is irrelevant to the
outcome of this case, we do not discuss this argument.
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                                       No. 18-40140
proceedings. Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999). Appellants
seek to compel such proceedings, and so, on its face, their claim is barred.
       In response, the appellants take their argument one level higher and
argue that 8 U.S.C. § 1252(g) itself violates the Due Process Clause as applied
to Mr. Velasquez. But appellants have pointed us to no decision, by this court
or otherwise, that has found that § 1252(g)’s jurisdictional bar goes so far as to
deny those in appellants’ position due process. Nor have they offered any
reason why we should be the first to find that it does. They rely instead on the
repeated assertion that appellant will be required to wait until DHS initiates
removal proceedings to receive further review of their waiver petition.
Although this is certainly true, this delay is insufficient to grant the district
court jurisdiction. Congress has the power to determine the jurisdiction of the
federal courts, including the power to require exhaustion of administrative
remedies. See, e.g., U.S. v. Sing Tuck, 194 U.S. 161 (1904). As such, the district
court correctly found that it lacked jurisdiction to hear this claim. 6
                                               C.
       Third, appellants challenge the district court’s dismissal of their FOIA
claims. The district court found that appellants’ untimeliness claims were
mooted by DHS’s belated response in producing the requested information. 7
This holding is correct. Voinche v. F.B.I., 999 F.2d 962, 963 (5th Cir. 2005).



       6 Appellants also argue that the district court erred by denying their motion to amend
their complaint. Because the proposed amended complaint failed to cure any of the defects
that we have discussed above, we agree with the district court that amending the complaint
was futile, and thus the court did not err by denying appellants’ motion to amend.
       7 The appellants seem to suggest at several points in their briefs that the district court

dismissed their FOIA untimeliness claims based on a failure to exhaust administrative
remedies. This view is incorrect. The district court was clear that it dismissed the
untimeliness claims because they were mooted by the government’s release of the documents.
However, the district court did dismiss appellants’ incompleteness claims based on lack of
exhaustion. Appellants did not contest this latter ruling on appeal, and so we do not consider
it.
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                                 No. 18-40140
      Appellants suggest, however, that they remain entitled to some
unspecified form of declaratory relief. Given that there is no active controversy
regarding this claim, we hold that the district court was correct in finding that
appellant, at best, is asking us simply to give an impermissible advisory
opinion.
                                      III.
      In sum, we hold, for the reasons above, that the district court correctly
determined that it lacked jurisdiction to review the decision of the USCIS
denying appellants’ waiver application or to compel the USCIS to initiate
removal proceedings against Jose Velasquez. We further conclude that the
district court correctly found that appellants’ FOIA untimeliness claims are
moot. Finally, we hold that the district court did not err in denying appellants’
motion to amend their complaint. Therefore, the judgment of the district court
is AFFIRMED.




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