     Case: 17-40454      Document: 00514220279         Page: 1    Date Filed: 11/01/2017




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

                                    No. 17-40454                                   FILED
                                  Summary Calendar                         November 1, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
JUAN GERARDO SANDOVAL-LOPEZ,

              Petitioner - Appellant

v.

REX W. TILLERSON, SECRETARY, U.S. DEPARTMENT OF STATE;
UNITED STATES OF AMERICA,

              Respondents - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:16-CV-273


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Juan Gerardo Sandoval-Lopez (“Lopez”) 1 appeals the dismissal of his
claim under 8 U.S.C. § 1503(a) relating to the denial of a United States
passport on the grounds that the court lacked subject matter jurisdiction to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 Carlos Sandoval, the father of Lopez, was also a named appellant when this appeal
was filed. He passed away on June 28, 2017, and therefore is no longer an appellant. See
Walker v. Warden, U.S. Penitentiary, 593 F.2d 21 (5th Cir. 1979) (per curiam).
    Case: 17-40454   Document: 00514220279     Page: 2   Date Filed: 11/01/2017


                                No. 17-40454

hear the claim. Further, Lopez appeals the dismissal of his claims for relief
under habeas corpus for a violation of federal due process and under the
Administrative Procedure Act (“APA”) on the grounds that the court lacked
subject matter jurisdiction. For the reasons explained below, we AFFIRM.
                              I. Background
      Lopez, who was born in Mexico, claims derivative United States
citizenship through the United States citizenship of his father, Carlos
Sandoval (“Sandoval”). See 8 U.S.C. § 1401(g). Sandoval’s United States
citizenship was in question at the time of his death and merits a brief
discussion in connection with the removal proceedings previously initiated
against him and Lopez.
      Sandoval was born in May 1940, with one birth certificate indicating he
was born in Linares, Nuevo León, Mexico, and another, delayed certificate of
birth indicating he was born in Rio Hondo, Texas. Sandoval was living in
Mexico when he married and had children, and around 1980, he came to the
United States for work.    Upon receipt of the delayed certificate of birth
indicating Sandoval’s birth in Texas, he received a social security card and
United States passport, among other documents.       Around 1991, Sandoval
retained counsel to apply for immigrant visas and adjustment of status for his
family, including Lopez, who had joined him in the United States. After an
investigation of Sandoval’s citizenship claims, removal proceedings were
initiated, and on May 26, 1995, an immigration judge (“IJ”) in Miami issued
an Order to Show Cause and Notice of Hearing to Sandoval. Ultimately , an
order of removal was issued in absentia against both Sandoval and Lopez.
There is no indication, nor does Lopez argue, that any appeal was made of
these orders.
      In 1998, Lopez presented a false United States birth certificate at the
United States border and the INS ordered him to be removed under an

                                      2
    Case: 17-40454    Document: 00514220279     Page: 3   Date Filed: 11/01/2017


                                 No. 17-40454

Expedited Order of Removal. There is no indication that Lopez appealed this
order, and he subsequently returned to Mexico of his own volition. On March
14, 2016, Lopez applied for a United States passport, claiming derivative
citizenship based upon his father’s United States citizenship. On August 1,
2016, the passport application was denied because there was not sufficient
evidence to prove that Sandoval was a United States citizen.
      On October 21, 2016, Lopez filed a lawsuit in federal district court to,
inter alia, (1) request habeas corpus review under 28 U.S.C. § 2241 of the
decision to deny his passport application, claiming the “arbitrary denial of
[Lopez]’s application for a passport based upon acquired citizenship” was a
violation of due process, (2) institute APA review of Lopez and Sandoval’s
citizenship and declare both United States citizens, and (3) have the court
declare Lopez a United States citizen under the Declaratory Judgment Act,
claiming that denial of a passport deprived Lopez of a right or privilege claimed
as a United States citizen under 8 U.S.C. § 1503(a).          The district court
determined that it lacked subject matter jurisdiction over those claims on the
basis that all appeals of removal orders should be directed through 8 U.S.C. §
1252, which lays out the review procedure for removal orders, and dismissed
the case. Lopez now appeals the district court’s dismissal.
                            II. Standard of Review
      “We review questions of subject matter jurisdiction de novo.” Owner-
Operator Indep. Drivers Ass’n, Inc. v. United States Dep’t of Transp., 858 F.3d
980, 982 (5th Cir. 2017) (quoting Ezike v. Holder, 383 F. App’x. 470, 472 (5th
Cir. 2010) (per curiam)).
                               III. Discussion
      Congress amended the jurisdictional provisions of the Immigration and
Nationality Act by passing the REAL ID Act of 2005, Pub. L. No. 19-13, 119
Stat. 231. The REAL ID Act amended 8 U.S.C. § 1252(a)(5) to provide that

                                       3
    Case: 17-40454     Document: 00514220279      Page: 4    Date Filed: 11/01/2017


                                  No. 17-40454

“[n]otwithstanding any other provision of law (statutory or nonstatutory),
including [28 U.S.C. § 2241] . . . a petition for review filed with an appropriate
court of appeals in accordance with this section shall be the sole and exclusive
means for judicial review of an order of removal.” The notes to § 1252 explain
that “[t]he amendments made by subsection (a) . . . shall apply to cases in which
the final administrative order of removal, deportation, or exclusion was issued
before, on, or after the date of the enactment of this division.” REAL ID Act of
2005, Pub. L. No. 19-13, 119 Stat. 231, 311 § 106(b) (emphasis added).
      Section 1503(a) provides:
            If any person who is within the United States claims a
            right or privilege as a national of the United States
            and is denied such right or privilege . . . upon the
            ground that he is not a national of the United States,
            such person may institute an action . . . for a judgment
            declaring him to be a national of the United States.
8 U.S.C. § 1503(a) (emphasis added). Thus, a threshold question in this case
is whether Lopez properly filed his § 1503(a) lawsuit. Section 1503(a) requires
that a person be “within the United States” when filing a claim. Lopez filed
his initial action while standing at the port of entry to the United States in
Brownsville, Texas. At least one district court has determined that being at
the port of entry is not considered “within the United States.” Villafranca v.
Tillerson, No. 1:16-CV-00077, 2017 WL 2735589, at *4 (S.D. Tex. June 26,
2017), appeal dism’d, No. 17-40712 (5th Cir. Sept. 12, 2017). Section 1503(b)
provides rights analogous to § 1503(a) to individuals “not within the United
States.” 8 U.S.C. § 1503(b). Under that section, individuals must apply for a
certificate of identity “for the purpose of traveling to a port of entry in the
United States and applying for admission.”         8 U.S.C. § 1503(b).     Thus, if
standing in a port of entry were enough to satisfy being “within the United
States” for § 1503(a), it would be superfluous to include a requirement to get a
certificate of identity to go to the port of entry under § 1503(b). See Villafranca,
                                         4
     Case: 17-40454       Document: 00514220279         Page: 5     Date Filed: 11/01/2017


                                       No. 17-40454

2017 WL 2735589, at *4.            The logic behind this determination is sound.
Although the district court did not address this argument, “[i]t is well-settled .
. . that we will not reverse a judgment of the district court if it can be affirmed
on any ground, regardless of whether the district court articulated the ground.”
Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 422 (5th Cir. 2017)
(quoting United States v. Real Property, 123 F.3d 312, 313 (5th Cir. 1997)).
Therefore, we conclude that the district court properly dismissed this action
under § 1503(a). 2
       Moving to Lopez’s claims under the APA and habeas, we find that we
lack jurisdiction to consider those claims. As an initial point, the REAL ID Act
applies retroactively, meaning that its provisions are applicable to Lopez’s
citizenship claim. Rosales v. Bureau of Immigration & Customs Enf’t, 426 F.3d
733, 736 (5th Cir. 2005) (per curiam) (quoting REAL ID Act of 2005, Pub. L.
No. 19-13, 119 Stat. 231, 311 § 106(b)). By amending 8 U.S.C. § 1252(b)(9), the
REAL ID Act made clear that “no court shall have jurisdiction[] by habeas
corpus under [§] 2241 . . . or by any other provision of law (statutory or
nonstatutory)” to review claims “arising from any action or proceeding brought
to remove an [individual] from the United States,” and that all review of
removal orders brought “under [§ 1252] shall be available only in judicial
review of a final order under [§ 1252].” 8 U.S.C. § 1259(b)(9). This directs
review of an order of removal through the procedure outlined in § 1252. 3


       2 We are aware that Lopez attempted to rectify this issue by filing a new action while
in the United States to be with Sandoval upon his death in Sandoval-Lopez v. Tillerson, No.
1:17-cv-137 (S.D. Tex. July 4, 2017), which remains pending in the district court. We express
no opinion on the ultimate determination of that case.
       3 Lopez argues that under Omolo v. Gonzales, 452 F.3d 404 (5th Cir. 2006),
§ 1252(b)(9) cannot yet be applied because he claims to be a “citizen” rather than an “alien,”
and therefore, the court must first determine his citizenship before deciding if he must
exhaust the § 1252(b) procedural requirements. Id. at 407. We need not reach that issue
here. The plaintiff in Omolo filed a timely petition for review, and therefore, the court
analyzed § 1252(d), which dictates when a court can review a final order of removal. Id.
                                              5
     Case: 17-40454       Document: 00514220279         Page: 6     Date Filed: 11/01/2017


                                       No. 17-40454

Further, to initiate judicial review, the APA requires a “final agency action for
which there is no other adequate remedy in a court,” and Lopez potentially has
an adequate remedy in court available through § 1252. See Qureshi v. Holder,
663 F.3d 778, 781 (5th Cir. 2011) (quoting 5 U.S.C. § 704). 4
       Accordingly, we AFFIRM the district court’s judgment dismissing
Lopez’s claims for lack of subject matter jurisdiction.




Here, Lopez is not pursuing a petition for review. Therefore, any discussion related to Omolo
is premature.
       4The parties also dispute whether Lopez was “in custody,” as required for habeas
corpus relief. See Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 540 (5th Cir. 2003) (per
curiam). As Lopez cannot currently invoke habeas corpus relief, we do not reach that issue.
                                              6
