                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 16a0143p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


 MEHRDAD HOSSEINI,                                        ┐
                                   Plaintiff-Appellant,   │
                                                          │
                                                          │
        v.                                                 >      No. 15-6082
                                                          │
                                                          │
 JEH JOHNSON, Secretary of the U.S. Department of         │
 Homeland Security, et al.,                               │
                             Defendants-Appellees.        │
                                                          ┘
                         Appeal from the United States District Court
                       for the Eastern District of Kentucky at Lexington.
                 No. 5:14-cv-00404—Karen K. Caldwell, Chief District Judge..

                                Decided and Filed: June 17, 2016

                    Before: KEITH, COOK, and STRANCH, Circuit Judges.

                                       _________________

                                           COUNSEL

ON BRIEF: Lance Curtright, DE MOTT, MCCHESNEY, CURTRIGHT, ARMENDARIZ,
LLP, San Antonio, Texas, for Appellant.   J. Max Weintraub, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
                                       _________________

                                            OPINION
                                       _________________

       DAMON J. KEITH, Circuit Judge. Appellant Mehrdad Hosseini (“Hosseini”) appeals
the district court’s dismissal of his complaint for failure to state a claim. Hosseini sought review
of the United States Citizenship and Immigration Service’s (“USCIS’s”) denial of his application
to adjust his status from that of an asylee to that of a permanent resident. Defendants Rand




                                                 1
No. 15-6082                                 Hosseini v. Johnson, et al.                                  Page 2


Beers1 and others, moved to dismiss the complaint for lack of subject-matter jurisdiction and,
alternatively, to dismiss the complaint for failure to state a claim. The district court held that it
had subject-matter jurisdiction over Hosseini’s claim pursuant to the federal question statute,
28 U.S.C. § 1331. The district court dismissed the complaint for failure to state a claim,
concluding that the denial of Hosseini’s application was not a “final agency action” within the
meaning of the Administrative Procedure Act (“APA”). Because we hold that the denial of
Hosseini’s application was a final agency action, we REVERSE.

                                               I. BACKGROUND

         In 1999, Hosseini’s wife was granted asylum, and she filed a petition seeking asylum for
Hosseini as her spouse. USCIS approved the petition, and Hosseini lawfully entered the United
States as a derivative asylee in February 2000. Approximately one year later, Hosseini filed a
Form I-485 Application to Register Permanent Residence or Adjust Status, seeking to obtain
permanent resident status. He sought the adjustment pursuant to 8 U.S.C. § 1159. However, no
action was taken on Hosseini’s application for nearly twelve years. In March 2013, Hosseini
filed a pro se complaint in federal district court seeking to compel the USCIS to act on his
application. On April 3, 2014, the district court ordered the USCIS to adjudicate Hosseini’s
application within 60 days.

         Thereafter, the USCIS sent Hosseini a Notice of Intent to Deny his application due to the
agency’s determination that he was inadmissible for having engaged in terrorist activities as
defined by 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).2 Hosseini responded to the Notice, asserting
that he was not, and had never been, a member of a terrorist organization. However, Hosseini
stated on his application to adjust status: “I joint [sic] to a political organization called Fedaeian
         1
           During the district court proceedings, the Secretary of Homeland Security was Rand Beers. See Appellee
Br. at n.1. Jeh Johnson is the current Secretary of Homeland Security, and the parties agreed to substitute him as the
proper defendant on appeal. See id.
         2
             This provision states:
         [T]he term “engage in terrorist activity” means . . . (VI) to commit an act that the actor knows, or
         reasonably should know, affords material support . . . (dd) to a terrorist organization . . . or to any
         member of such an organization, unless the actor can demonstrate by clear and convincing
         evidence that the actor did not know, and should not reasonably have known, that the organization
         was a terrorist organization.
8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).
No. 15-6082                           Hosseini v. Johnson, et al.                      Page 3


Khalgh [sic] from 1979 to 1982 in Iran.” Hosseini also stated that he had distributed literature
for Fadayeen Khalq (“FeK”) and Mujahedin-e Khalq (“MeK”) until sometime in 1985. He
provided copying and telefax services to facilitate the distribution of Mek political leaflets and
articles. The USCIS denied his application on July 18, 2014, after determining that Hosseini had
engaged in activities for Fek and MeK during a time when both groups fell within the definition
of an undesignated terrorist organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III). The USCIS
concluded that Hosseini, therefore, was “inadmissible.”            Accordingly, he did not meet the
eligibility requirements for adjustment of status—one of which is to be “admissible.” Despite
this inadmissibility determination, Hosseini’s asylum status was not revoked, and no removal
proceedings were instituted.

          On October 28, 2014, Hosseini, acting pro se, filed another complaint in federal district
court—this time—challenging the USCIS’s decision pursuant to the Administrative Procedure
Act (“APA”)3 and the Declaratory Judgment Act.4 This second complaint is the subject of the
current appeal. Hosseini argued that the USCIS’s conclusion that he is “inadmissible” was
erroneous, arbitrary, and capricious. In support, he stated that he could not be “inadmissible”
because he was admitted as a derivative asylee in 2000. He asserted, among other things, that
the USCIS erroneously considered his “minimal occasional non-violence [sic] indirect activities
of providing literatures” as “engaging in terrorist activities.”

          Defendants moved to dismiss the complaint for lack of subject-matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1), and, alternatively, for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argued that the APA and
8 U.S.C. § 1252(a)(2)(B)(ii) preclude judicial review of the USCIS’s denial of Hosseini’s
application for adjustment of status because the decision was discretionary. Defendants also
argued that, notwithstanding the jurisdictional bar, Hosseini’s claim lacked merit. The district
court rejected Defendants’ jurisdictional arguments, determining that it had subject-matter
jurisdiction over Hosseini’s claim pursuant to 28 U.S.C. § 1331 federal-question jurisdiction.
The district court then dismissed the complaint for failure to state a claim, holding that the

   3
       5 U.S.C. § 701, et seq.
   4
       28 U.S.C. § 2201.
No. 15-6082                          Hosseini v. Johnson, et al.                        Page 4


USCIS’s denial of Hosseini’s adjustment of status application was not a “final agency action”
under the APA. Hosseini, now appearing through counsel, timely appealed.

                                        II. DISCUSSION

       A. Subject-Matter Jurisdiction

               (i) Standard of Review

       “We review a district court’s findings as to whether it had subject matter jurisdiction de
novo.” Mehanna v. U.S. Citizenship and Immigration Servs., 677 F.3d 312, 314 (6th Cir. 2012)
(citing Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th Cir. 2011)).

               (ii) Analysis

       The district court determined that it had jurisdiction over Hosseini’s APA claim pursuant
to federal-question jurisdiction, relying on our opinion in Jama v. Dep’t of Homeland Sec.,
760 F.3d 490 (6th Cir. 2014).       In Jama, we noted that although the APA is not itself a
jurisdiction-conferring statute, our jurisdiction over APA claims derives from the general
federal-question statute, 28 U.S.C. § 1331. 760 F.3d at 494. However, the APA does not apply
where “statutes preclude judicial review” or where “agency action is committed to agency
discretion by law.” Id. at 495; accord 5 U.S.C. § 701(a). Accordingly, we must determine
whether a statute precludes judicial review of Hosseini’s claim or if the agency decision he
challenges is committed to agency discretion by law. See Jean v. Gonzales, 435 F.3d 475, 480
(4th Cir. 2006) (concluding that “it is critical for us to determine whether . . . the petition seeks
review of a discretionary determination”).

       Defendants argued before the district court that subject-matter jurisdiction was lacking
because a statute precludes review of Hosseini’s claims and because the denial of a status-
adjustment application is committed to agency discretion by law. The district court rejected this
argument. While Defendants did not challenge the district court’s jurisdiction determination in a
cross-appeal, we must be independently satisfied that subject-matter jurisdiction is met before
adjudicating a case on the merits. Siding and Insulation Co., Inc. v Acuity Mut. Ins. Co.,
754 F.3d 367, 368–69 (6th Cir. 2014) (noting that “[s]ubject-matter [jurisdiction] delineations
No. 15-6082                             Hosseini v. Johnson, et al.                            Page 5


must be policed by the courts on their own initiative”) (second alteration in original) (quoting
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)).

        At the outset, some types of agency determinations are entirely precluded from judicial
review by statute.        See, e.g., 8 U.S.C. 1252(a)(2)(B)(i)–(ii).            For example, 8 U.S.C.
§ 1252(a)(2)(B) states in relevant part:

        Notwithstanding any other provision of law (statutory or nonstatutory) . . . and
        regardless of whether the judgment, decision or action is made in removal
        proceedings, no court shall have jurisdiction to review-- (i) any judgment
        regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or
        1255 of this title, or (ii) any [] decision or action of the Attorney General or the
        Secretary of Homeland Security the authority for which is specified under this
        subchapter5 to be in the discretion of the Attorney General or the Secretary of
        Homeland Security . . . .

8 U.S.C. § 1252(a)(2)(B) (emphasis added).

        In the present case, Hosseini sought an adjustment of status under 8 U.S.C. § 1159.
Section 1159 specifies that the Secretary of Homeland Security or the Attorney General in their
“discretion . . . may adjust” the status of an alien granted asylum to the status of a permanent
resident, but only if certain prerequisites for eligibility are met. See 8 U.S.C. § 1159 (emphasis
added). Because the ultimate decision of whether to adjust status is committed to the agency’s
discretion, “section 1252(a)(2)(B) appears, [at first blush], to create an unqualified bar to judicial
review” of all things related to the denial of adjustment of status, but it does not. See Jean,
435 F.3d at 480; Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004). Courts may
review “non-discretionary decisions that underlie determinations that are ultimately
discretionary.” Billeke-Tolosa, 385 F.3d at 711 (citing Valenzuela-Alcantar v. INS, 309 F.3d
946, 949 (6th Cir. 2002)). Satisfaction of the eligibility “requirements is a condition precedent to
any exercise of [] discretion.” See Sagastume v. Holder, 490 F. App’x 712, 715 (6th Cir. 2012)
(citing Billeke-Tolosa, 385 F.3d at 711). So eligibility determinations underlying the agency’s
decision are non-discretionary determinations that are subject to judicial review. See id.; see also
Lepe-Paz v. Holder, 531 F. App’x 645, 646 (6th Cir. 2013); Mejia Rodriguez v. U.S. Dep’t of

        5
          “[T]his subchapter” refers to 8 U.S.C. §§ 1151–1381. Kucana v. Holder, 558 U.S. 233, 239 n.3 (2010);
see also Mehanna, 677 F.3d at 314. The provision at issue here, 8 U.S.C. § 1159, falls within this subchapter.
No. 15-6082                                Hosseini v. Johnson, et al.                                 Page 6


Homeland Sec., 562 F.3d 1137, 1144 (11th Cir. 2009); Addo v. Mukasey, 267 F. App’x 442, 447
(6th Cir. 2008); Jean, 435 F.3d at 480 (observing that many courts had held that “non-
discretionary legal determinations regarding an [applicant’s] eligibility for such relief f[a]ll
outside of the jurisdiction stripping language of section 1252(a)(2)(b)” (emphasis added)
(internal quotation marks omitted)).6

         Hosseini alleges that that USCIS’s ineligibility finding was “erroneous.”                         While he
admits to having been involved with FeK and Mek by, among other things, distributing flyers
and literature for the organizations, he argues that he never engaged in terrorist activities and did
not provide “material” to the organizations. Hosseini argues that his distribution of flyers
constituted free speech.         Whether Hosseini’s conduct amounted to engagement in terrorist
activities is not a matter of discretion; it is a matter determined by statute. See 8 U.S.C. § 1182
(a)(3)(B)(iv) (“‘Engage in terrorist activity’ defined”). Accordingly, we have subject-matter
jurisdiction over Hosseini’s challenge to the USCIS’s ineligibility determination. See, e.g.,
Lepe-Paz, 531 F. App’x at 646; see also Jama, 760 F.3d at 494.




         6
           The notion that courts can review non-discretionary decisions in this context has been viewed as an
“implied exception” to § 1252’s judicial review bar. See Reyes v. Holder, 410 F. App’x 935, 939 n.7 (6th Cir. 2011)
(citing Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010)). With the enactment of the REAL ID Act in 2005,
Congress amended § 1252 to contain an “explicit exception to the jurisdictional bar.” See id. That explicit
exception states: “Nothing in [§ 1252(a)(2)(B)] . . . 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 . . . .” 8 U.S.C. § 1252(a)(2)(D) (emphasis added). Some litigants have argued that the
explicit exception strips the district courts of jurisdiction over even nondiscretionary claims, citing the emphasized
language above regarding the court of appeals. Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137,
1145 n.15 (11th Cir. 2009). We left the door to this question open in Reyes. See 410 F. App’x at 939 n.7 (“After the
adoption of the REAL ID Act of 2005 and the inclusion of § 1252(a)(2)(D), the propriety of this implied exception
is unclear.”). However, Jama effectively closed that door when it concluded, albeit with little analysis, that district
courts retain jurisdiction over non-discretionary claims through the federal question statute. See Jama, 760 F.3d at
494. We are bound by Jama, but we nonetheless find its conclusion on this point to be sound. After all, if Congress
had intended to limit district court jurisdiction over non-discretionary determinations, it could have done so with
unambiguous language to that effect in § 1252(a)(2)(D). See Lindahl v. OPM, 470 U.S. 768, 779–80 (1985)
(“[W]hen Congress intends to bar judicial review altogether, it typically employs language far more unambiguous
and comprehensive.”). It did not. See generally 8 U.S.C. § 1252. A more compelling reading of the explicit
exception is that it “does not withdraw district court jurisdiction that derives from other sources,” but rather it
merely “clarifies that review of legal and constitutional questions are possible on a petition for review.” Mejia
Rodriguez, 562 F.3d at 1145 n.15.
No. 15-6082                         Hosseini v. Johnson, et al.                      Page 7


        B. The Merits of the APA Claim

               (i) Standard of Review

        We review the district court’s dismissal of a complaint for failure to state a claim de
novo. See Lambert v. Hartman, 517 F.3d 433, 438–39 (6th Cir. 2008).

               (ii) Analysis

        Under the APA, “[a] person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review” of that agency action. 5 U.S.C. § 702. The agency action must also be “final.”
See id. at § 704. Two conditions must be met in order for an agency action to be considered
final: (1) “the action must mark the ‘consummation’ of the agency’s decisionmaking process,”
and (2) “the action must be one by which ‘rights or obligations have been determined,’ or from
which ‘legal consequences flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations
omitted). “The finality inquiry . . . is a ‘flexible’ and ‘pragmatic’ one.” Air Brake Sys., Inc. v.
Mineta, 357 F.3d 632, 638 (6th Cir. 2004) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149–
50 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)).

               1. Consummation of the Agency’s Decision-making Process

        In order to mark the consummation of the administrative process, the decision must not
be “of a merely tentative or interlocutory nature.” Bennett, 520 U.S. at 177. In Jama, we
concluded that the agency’s denial of an application for adjustment of status was not the
consummation of the agency’s decision-making process because “removal proceedings [were]
ongoing” at the time of the action.      760 F.3d at 496.     We also recognized that removal
proceedings were a necessary occurrence because Jama’s refugee status had been terminated. Id.
(noting that removal proceedings “necessarily follow[] a decision to terminate an alien’s refugee
status”).

        The district court in the present case relied on Jama to conclude that the agency’s denial
of Hosseini’s application for adjustment of status was not the consummation of the agency’s
decision-making process. But there is one critical distinction between Jama and the present
No. 15-6082                          Hosseini v. Johnson, et al.                       Page 8


case—here, no removal proceedings are ongoing and no removal proceedings will necessarily
follow because Hosseini’s asylee status has not been terminated.           See Cabaccang v. U.S.
Citizenship & Immigration Servs., 627 F.3d 1313, 1317 (9th Cir. 2010) (noting that for the
purposes of adjudicating immigration claims in the APA context, the distinction between cases
where removal proceedings are pending and cases where removal proceedings are not pending is
“crucial”). The applicant in Jama was certain to have the opportunity to seek judicial review of
the non-discretionary decisions underlying the denial of his application to adjust status during his
removal proceedings.     See Jama, 760 F.3d at 496.         An applicant who is not in removal
proceedings, and who may never have removal proceedings, has no opportunity to receive that
judicial review. Therein lies the difference between Jama and the present case. Thus, we must
decide whether the denial of an application to adjust status is a final agency action within the
meaning of the APA when no removal proceedings are pending. This court has not previously
addressed this question, but some of our sister circuits have. See Cabaccang, 627 F.3d at 1317;
Pinho v. Gonzales, 432 F.3d 193, 202 (3d Cir. 2005); but see Ibarra v. Swacina, 628 F.3d 1269,
1270 n.2 (11th Cir. 2010) (saving the question for another day).

       The Third Circuit’s opinion in Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005), is
particularly instructive. In that case, the court held that the agency’s denial of an application for
adjustment of status was final within the meaning of the APA, because no removal proceedings
were pending. Id. at 200–01. Pinho had applied for adjustment of his immigration status to
“permanent resident” under 8 U.S.C. § 1255. Id. at 197. The Immigration and Naturalization
Service (“INS”) denied adjustment after finding that Pinho was inadmissible for having pled
guilty to a crime relating to a controlled substance. Id. However, no removal proceedings were
instituted against Pinho. See id. at 201. Thereafter, Pinho filed a complaint in federal district
court seeking a declaratory judgment that the denial of his adjustment of status was arbitrary,
capricious, and unlawful. Id. at 198. The district court denied Pinho’s request on the merits, and
he appealed. Id. at 198–99.

       On appeal, the Third Circuit pointed out the unique posture of the case—there had been
“no hearing before an Immigration Judge” and “no appeal to the [Board of Immigration
Appeals].” Id. at 200. And “[i]f the agency institutes removal proceedings against” Pinho at
No. 15-6082                            Hosseini v. Johnson, et al.                           Page 9


some future time, he could renew his application during those proceedings. See id. at 200–01.
However, the court found the hypothetical possibility of future removal proceedings insufficient
to render the agency’s determination tentative or interlocutory. Id. The court reasoned that “if
the agency does not seek to deport [Pinho], there can never be an appeal within the agency by
which any higher level of administrative authority can be invoked to review the legal
determination made by the” agency. Id. at 201. Additionally, because Pinho had no other
avenue for administrative appeal,7 “Pinho had no further opportunity to challenge the legality of
the decision within the agency.” Id. An applicant should not be “forced to await deportation
proceedings that the agency may or may not choose to institute.” Id.

        To make matters worse, “[t]he decision of whether or not to institute deportation
proceedings is entirely within the discretion of the agency.” Id. at 202. Namely, “[t]here are no
steps that Pinho can take to force the question in order to have his claim resolved.”                    Id.
Foreclosing review of Pinho’s claim would mean that “the agency retains sole control over
whether an individual’s purely legal claim—one which has not been made non-reviewable by
statute—may ever be brought before the courts.” See id. “Such a result would be plainly at odds
not only with the APA, but also with broader principles of separation of powers.” Id. Therefore,
the Third Circuit held that the agency’s decision denying Pinho’s adjustment of status
application was deemed final because there were “no deportation proceedings pending in which
the decision might be reopened or challenged.” Id.

        Like the applicant in Pinho, Hosseini filed an application for adjustment of status which
was ultimately denied. Hosseini also sought review of the decision in the district court, and no
removal proceedings were instituted against him. The government on appeal argues that because
the agency can elect to institute removal proceedings against Hosseini at some future time, the
agency’s denial of his application is tentative, not final. Like the Third Circuit, we find this
argument unavailing. Here, removal proceedings are not even possible at this time because
Hosseini’s asylum status has not been terminated. See 8 U.S.C. § 1158(c)(1)(A) (stating that an
alien granted asylum “shall not” be removed). Accepting the government’s argument would lead


    7
    Applicants are not permitted to appeal the denial of an adjustment of status application to the Board of
Immigration Appeals. See 8 C.F.R. § 245.2(a)(5)(ii).
No. 15-6082                              Hosseini v. Johnson, et al.                              Page 10


to the perverse result rejected in Pinho: The agency would retain “sole control over whether
[Hosseini’s] purely legal claim—one which has not been made non-reviewable by statute—may
ever be brought before the courts.” See Pinho, 432 F.3d at 202 (emphasis added).

        We are also not persuaded by the government’s argument that Hosseini can merely re-
apply for admission as often as he wants; this approach suffers from the same flaw—“there can
never be an appeal within the agency by which any higher level of administrative authority can
be invoked to review the legal determination.” See id. at 201. In other words, the government’s
argument that Hosseini can simply “try again” fails to appreciate that even if Hosseini receives
four or five denials, he would never receive meaningful review of any of them. And given that
the agency took over twelve years to adjudicate Hosseini’s first application, and even then only
after forced to do so by court order, the strength of the government’s “try again” argument is all
the more diminished.

        For these reasons, we hold that where no removal proceedings are pending, the agency’s
denial of an application for status adjustment under § 1159 marks the consummation of the
agency’s decision-making process. See Pinho, 432 F.3d at 202; see also Cabaccang, 627 F.3d at
1317 (“Without a pending removal proceeding, a denial of status adjustment is final because
there is no appeal to a superior administrative authority.”); but cf. Lee v. U.S. Citizenship &
Immigration Servs., 592 F.3d 612, 621 (4th Cir. 2010) (disagreeing with Pinho on jurisdictional
grounds regarding an application for adjustment of status under § 1255, a statutory provision not
applicable here).8

                 2. Rights or Obligations Have Been Determined

        Next, we must decide whether the agency’s action determined Hosseini’s rights or
obligations. See Bennett, 520 U.S. at 177–78. In this case, the government itself cited various
rights that Hosseini is deprived of as a result of the denial of an application for adjustment of
status—he is denied the right to live permanently in the United States; he is denied the right to

    8
      While Pinho dealt with an application for adjustment of status under § 1255, here, Hosseini sought an
adjustment of status under § 1159. Both statutes give the Attorney General and Secretary of Homeland Security
discretion to grant or deny an adjustment of status application. Compare 8 U.S.C. § 1255 with 8 U.S.C. § 1159.
However, § 1255 is expressly listed in § 1252(a)(2)(B)(i)’s judicial review bar, while § 1159 is not. See 8 U.S.C.
§ 1252(a)(2)(B)(i). Our decision is limited to the facts before us, which deal exclusively with § 1159.
No. 15-6082                          Hosseini v. Johnson, et al.                         Page 11


apply for and be granted naturalization, and he is denied a “green card,” which would reflect his
right to live and work in the United States permanently.             See Appellee Br. at 10 n.5.
Accordingly, we hold that rights or obligations have been determined. See Pinho, 432 F.3d at
203 (holding that the ineligibility determination itself had “clear adverse effects”).

                                       III. CONCLUSION

       For the foregoing reasons, we REVERSE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion.
