Thigulla v. Jaddou

94 F.4th 770

Sandeep THIGULLA; Sarvani Thigulla, Plaintiffs - Appellants v. Ur JADDOU, Director, U.S. Citizenship and Immigration Services, Defendant - Appellee

No. 22-3066

United States Court of Appeals, Eighth Circuit

Submitted: November 16, 2023

Filed: March 5, 2024

Appeal from United States District Court for the District of Nebraska - Lincoln

Counsel who presented argument on behalf of the appellants and appeared on the brief was Bradley Banias, of Charleston, SC.

Counsel who presented argument on behalf of the appellee was Alessandra Faso, USDOJ, OIL, of Washington, DC. The following attorney appeared on the appellee brief; Vanessa Molina, USDOJ, OIL, of Washington, DC.

Before COLLOTON, BENTON, and SHEPHERD, Circuit Judges.

BENTON, Circuit Judge.

Sandeep and Sarvani Thigulla—lawful nonimmigrant workers with temporary work authorization—seek to become lawful permanent residents (LPRs) (get a "green card"). As the last step to become LPRs, the Thigullas sought approval of their Form I-485 applications with the U.S. Citizenship and Immigration Services (USCIS). The Department of State signaled that adjudication of their applications was imminent in September 2022. However, in October 2022, the Department of State decreased the number of applications it would adjudicate at that time. The Thigullas sought a temporary restraining order against the Director of USCIS, compelling the prompt adjudication of their applications under the Administrative Procedure Act. The Government moved to dismiss for a lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The district court¹ denied a temporary restraining order—finding a lack of irreparable harm and a low likelihood of success on the merits. (It also denied the Government's motion to dismiss, opting to address the Government's subject-matter jurisdictional concerns "in due time.") The Thigullas appeal the denial of the temporary restraining order. This court dismisses the case for a lack of subject-matter jurisdiction.

I.

The Thigullas are citizens and nationals of India. Sandeep Thigulla has been in the United States since 2010. They applied for adjustment of status, trying to change their status from lawful nonimmigrant workers on a series of short-term work authorizations, to LPRs with green cards. Foreign nationals seeking an LPR visa must generally follow a three-step process: by obtaining (1) a labor certification by the Department of Labor; (2) an approved I-140 immigrant petition from USCIS; and (3) an approved Form I-485, Application to Register Permanent Residence or Adjust Status from USCIS. See Mantena v. Johnson, 809 F.3d 721, 724-25 (2d Cir. 2015) (describing the three-step process); 8 U.S.C. § 1255(a); 8 C.F.R. §§ 204.5(n)(1), 245.2(a)(2)(i), 245.2(a)(5)(ii). This case involves the final step of the process: the adjudication of the application to adjust status.

The final step, due to the limited number of available LPR visas, cannot take place until the proper category of visa is available for the applicant. See 8 U.S.C. § 1255(a). "Because there are limits on the number of such visas in each category and from each country, immigrants must often wait many years for a permanent residency visa, especially if they are from a country, like India, that sends a large number of immigrants to the United States." Mantena, 809 F.3d at 725. An applicant's priority date—the spot in the visa queue—determines when an applicant has access to available visas. To receive a visa, an applicant must have both a priority date that is "current" or "immediately available" and an approved status adjustment application. The Government does not approve (or deny) pending status adjustment applications until an immigrant visa number has been allocated, which occurs when an applicant's priority date is current or immediately available. The Thigullas call this the Adjudication Hold Policy. See 8 C.F.R. § 245.2(a)(5)(ii) (describing the Adjudication Hold Policy).

The Thigullas' priority date is January 17, 2014. In September 2022, the Department of State, in its monthly visa bulletin, listed the Thigullas' desired class of visa (chargeable to India) as current or immediately available for applicants with a priority date before December 1, 2014. See Department of State, The Visa Bulletin for September 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-september-2022.html (last visited Feb. 21, 2024). However, in the October 2022 bulletin, the Department of State "retrogressed" that priority date to April 1, 2012. See Department of State, The Visa Bulletin for October 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2023/visa-bulletin-for-october-2022.html (last visited Feb. 21, 2024).² By changing the priority date, USCIS delayed adjudicating the Thigullas' status adjustment applications.

The Thigullas sued to compel USCIS to promptly adjudicate their status adjustment applications, arguing that the decision to delay adjudicating them, pursuant to the Adjudication Hold Policy, violates congressional intent. The Thigullas moved for a temporary restraining order, claiming irreparable harm without USCIS's approval. The Government moved to dismiss for a lack of subject-matter jurisdiction. The district court denied a temporary restraining order citing the lack of evidence of irreparable harm and a low likelihood of success on the merits. The district court also denied the Government's motion to dismiss as moot without addressing the court's subject-matter jurisdiction. The Thigullas appeal the denial of a temporary restraining order.

II.

This court first addresses the issue of subject-matter jurisdiction. "[A] federal court always has jurisdiction to determine its own jurisdiction." United States v. Harcevic, 999 F.3d 1172, 1178 (8th Cir. 2021), quoting United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002).³

"In this context, the term 'jurisdiction' refers to" this court's subject-matter jurisdiction—"the courts' statutory or constitutional power to adjudicate the case." Harcevic, 999 F.3d at 1178, quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (emphasis in original). Subject-matter jurisdiction, because "it involves a court's power to hear a case, can never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court." Cotton, 535 U.S. at 630, 122 S.Ct. 1781, citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). "Unlike most arguments, challenges to subject-matter jurisdiction may be raised by the defendant 'at any point in the litigation,' and courts must consider them sua sponte." Fort Bend County v. Davis, — U.S. —, 139 S. Ct. 1843, 1849, 204 L.Ed.2d 116 (2019), quoting Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012).

The requirement that jurisdiction be established as a threshold matter " 'spring[s] from the nature and limits of the judicial power of the United States' and is 'inflexible and without exception.' " Patchak v. Zinke, 583 U.S. 244, 254, 138 S.Ct. 897, 200 L.Ed.2d 92 (2018) (plurality opinion), quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884). See Patchak, 583 U.S. at 254, 138 S.Ct. 897 (plurality opinion), quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514-15, 19 L.Ed. 264 (1869) ("Because jurisdiction is the "power to declare the law" in the first place, 'judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.' ").

Congress, in 8 U.S.C. § 1252(a)(2)(B)(ii), enacted a jurisdictional bar on review of discretionary decisions of the Attorney General under § 1255(a):

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 other 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, other than the granting of relief under section 1158(a) of this title.

8 U.S.C. § 1252(a)(2)(B) (emphasis added). Two elements trigger § 1252(a)(2)(B)(ii)'s jurisdictional bar: (1) a decision or action by the Attorney General or the Secretary of Homeland Security and (2) statutorily specified discretion under Subchapter II of Chapter 12 of Title 8 (8 U.S.C. §§ 1151-1381) (Subchapter II). See Kucana v. Holder, 558 U.S. 233, 253, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (Alito, J., concurring) ("The phrase 'under this subchapter' refers to Subchapter II of Chapter 12 of Title 8, 8 U.S.C. §§ 1151-1381 . . . .").

Unlike some arguments that must be raised by the parties at certain times, "[j]urisdictional bars, however, 'may be raised at any time' and courts have a duty to consider them sua sponte." Wilkins v. United States, 598 U.S. 152, 157, 143 S.Ct. 870, 215 L.Ed.2d 116 (2023), citing Henderson v. Shinseki, 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). See Patel v. Garland, 596 U.S. 328, 338-46, 142 S.Ct. 1614, 212 L.Ed.2d 685 (2022) (repeatedly categorizing § 1252(a)(2)(B) as a "jurisdictional bar"). Cf. Irshad v. Johnson, 754 F.3d 604, 607 (8th Cir. 2014), citing Steel Co., 523 U.S. at 97 n. 2, 118 S.Ct. 1003 (holding this court may raise the issue of "statutory jurisdiction" sua sponte). This court now considers the jurisdictional bar sua sponte.

III.

The Thigullas seek review under the Administrative Procedure Act, as a "person suffering legal wrong because of agency action, or adversely affected or...