Nolasco v. Crockett, No. 19-30646 (5th Cir. 2020)Annotate this Case
The Fifth Circuit granted the petition for panel rehearing. The court withdrew its prior opinion on May 6, 2020 and substituted the following opinion.
Since the prior opinion issued, the Supreme Court decided Nasrallah v. Barr, 140 S. Ct. 1683 (2020), which clarified the meaning of the statutory term "final order of removal." Without expressing an opinion as to whether Nasrallah may have partially abrogated portions of Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000), the court applied Melendez v. McAleenan, 928 F.3d 425 (5th Cir.), cert. denied, 140 S. Ct. 561 (2019), to this case.
Plaintiff filed suit seeking review of USCIS's legal determination declaring him ineligible for adjustment to permanent status. Although plaintiff had been granted Temporary Protected Status (TPS), he had entered the United States illegally, which would ordinarily bar the adjustment of status. The court dismissed plaintiff's complaint with prejudice; reversed the district court's holding that it lacked jurisdiction; and asserted the court's own jurisdiction over plaintiff's claim. The court followed Melendez in holding that plaintiff sought review of the government's legal interpretation of statutory provisions that govern TPS and adjustment of status. The court explained that, because this is a "pure legal task," it is a nondiscretionary decision that is not barred by the jurisdiction-stripping statute, and thus the district court erred in concluding that it did not have jurisdiction to hear plaintiff's claims. The court also held that plaintiff has failed to state a legally cognizable claim under Melendez. The court explained that those with TPS who first entered the United States unlawfully are foreclosed from applying for adjustment of status as a matter of law.
This opinion or order relates to an opinion or order originally issued on May 6, 2020.