                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-10283         ELEVENTH CIRCUIT
                                        Non-Argument Calendar      AUGUST 31, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                            D.C. Docket No. 6:10-cv-00861-MSS-KRS

ANESH GUPTA,

llllllllllllllllllllllllllllllllllllllll                        Plaintiff - Appellant

                                                versus

U.S. ATTORNEY GENERAL,
SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY,
DIRECTOR OF THE U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
FIELD OFFICE DIRECTOR ORLANDO FIELD OFFICE,
U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
(USCIS)

llllllllllllllllllllllllllllllllllllllll                        Defendants - Appellees.

                                     ________________________

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

                                           (August 31, 2011)
Before CARNES, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Anesh Gupta, an alien in removal proceedings acting pro se, challenges the

district court’s dismissal of his complaint, filed under the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701 et. seq.; the Mandamus Act, 28 U.S.C.

§ 1361; the Federal Question Statute, 28 U.S.C. § 1331; and the Declaratory

Judgment Act, 28 U.S.C. §§ 2201 and 2202. After thorough review, we affirm.

                                          I.

      Gupta, a citizen of India, lawfully entered the United States on a B-2 visa.

On June 19, 2002, Gupta submitted an application to the Immigration and

Naturalization Service (“INS”) for adjustment of status to lawful permanent

resident based on his marriage to a U.S. citizen. At the same time, Gupta’s wife

filed a petition for alien relative, which sought a visa for him. According to the

allegations in Gupta’s complaint, the U.S. Citizenship and Immigration Service

(“USCIS”) approved both applications “in and about 2005-2006.” Without going

through recission proceedings, the USCIS issued a second decision dated July 23,

2009 denying Gupta’s application for adjustment of status on the ground that his

marriage was a sham.




                                          2
      On August 6, 2009, the INS issued Gupta a notice to appear charging that

Gupta was subject to removal because his B-2 visa had expired. On May 28,

2010, Gupta filed a complaint in district court seeking a declaratory judgment that

the 2009 denial of his application for adjustment of status was arbitrary,

capricious, and unlawful because his application had already been approved.

Gupta also sought an order compelling the USCIS to record his status as a lawful

permanent resident. The district court dismissed Gupta’s complaint for lack of

subject matter jurisdiction, and he now appeals.

                                          II.

      “We review the district court’s dismissal for lack of subject matter

jurisdiction de novo.” Arris Grp., Inc. v. British Telecomms. PLC, 639 F.3d 1368,

1373 (11th Cir. 2011). Pro se pleadings are liberally construed. Tannenbaum v.

United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, we may not “serve

as de facto counsel for a party, or . . . rewrite an otherwise deficient pleading in

order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d

1359, 1369 (11th Cir. 1998) (citations omitted), overruled on other grounds by

Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009).

      The APA provides judicial review of “final agency action for which there is

no other adequate remedy in a court.” 5 U.S.C. § 704. An adjustment of status

                                           3
decision is a final agency action when “there are no deportation proceedings

pending in which the decision might be reopened or challenged.” Ibarra v.

Swacina, 628 F.3d 1269, 1270 (11th Cir. 2010) (quotation marks omitted); see id.

(holding that a district court lacks subject matter jurisdiction under the APA to

review the denial of an alien’s application for adjustment of status where the alien

is in removal proceedings).

      Under the Mandamus Act, 28 U.S.C. § 1361, a district court has original

jurisdiction over a mandamus action “to compel an officer or employee of the

United States or any agency thereof to perform a duty owed to the plaintiff.” “The

test for jurisdiction is whether mandamus would be an appropriate means of

relief.” Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (quotation marks

omitted). A writ of mandamus is only appropriate when: “(1) the plaintiff has a

clear right to the relief requested; (2) the defendant has a clear duty to act; and (3)

no other adequate remedy [is] available.” Id. (quotation marks omitted).

      The Declaratory Judgment Act “does not, of itself, confer jurisdiction upon

federal courts.” Stewart Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d

859, 861–62 (11th Cir. 2008). It is “an enabling Act, which confers a discretion

on the courts rather than an absolute right upon the litigant.” Wilton v. Seven

Falls Co., 515 U.S. 277, 287, 115 S. Ct. 2137, 2143 (1995) (quotation marks

                                           4
omitted). “[T]he Act permits a party to apply to a federal court for a declaration of

an underlying right or relation . . . .” Christ v. Beneficial Corp., 547 F.3d 1292,

1299 (11th Cir. 2008).

      The district court did not err in dismissing Gupta’s complaint for lack of

subject matter jurisdiction. No jurisdiction lies under the APA or the Mandamus

Act because Gupta is in removal proceedings. Thus, “[t]he decision on [his]

adjustment of status is not yet final,” Ibarra, 628 F.3d at 1270, and he still has

remedies available to him, see Cash, 327 F.3d at 1258. Moreover, because Gupta

is in removal proceedings, the USCIS no longer has jurisdiction to consider his

claims for relief, and therefore, the district court could not grant relief even if it

had jurisdiction over the complaint. 8 C.F.R. § 1245.2(a)(1); see also Nyaga v.

Ashcroft, 323 F.3d 906, 916 (11th Cir. 2003) (holding that where an agency is

unable to act on requested relief, the district court should dismiss a mandamus

action as moot). Gupta’s claim that his due process rights were violated by the

USCIS’s failure to record the approval of his application “in and about 2005-

2006" also does not create jurisdiction in the district court. See Estrada v. Holder,

604 F.3d 402, 407–08 (2d Cir. 2010) (holding that the district court lacked

jurisdiction under the APA and the Due Process Clause over an alien’s procedural

challenge to the recission of his permanent resident status because the issue was

                                            5
reviewable in his pending removal proceedings). Finally, the Declaratory

Judgment Act does not provide an independent basis of jurisdiction. See Stewart

Weitzman, 542 F.3d at 861–62. For these reasons, we affirm.

      AFFIRMED.




                                        6
