Elldakli v. Garland, No. 22-20344 (5th Cir. 2023)
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Plaintiff, his wife, and his three children are Libyan citizens who have resided lawfully in the United States for over a decade. Plaintiff filed an I-140 petition seeking a waiver of the labor-certification requirement of his visa because he is a “professional holding an advanced degree whose work is in the national interest of the United States.” While the petition was pending, Plaintiff and his family filed I-485 applications for status adjustment to legal permanent residents (“LPRs”) under 8 U.S.C. Section 1255(a). Section 1255 grants the Attorney General the discretion to adjust the status of certain aliens to LPR status if they have met certain statutorily specified conditions. The USCIS granted the family’s I-485 petitions prematurely. The district court found that it had no subject matter jurisdiction to review the original denial of the I-140 because Plaintiffs had not exhausted their administrative remedies.
The Fifth Circuit affirmed the order of dismissal. The court held that it does not have subject matter jurisdiction to review a status-adjustment decision by the USCIS under either the APA or the INA because the alien retains the right to de novo review of that decision in his final removal proceedings. Thus, the court found that Plaintiffs have not yet exhausted administrative remedies and the court may not exercise jurisdiction.
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