Flores v. Garland, No. 22-20419 (5th Cir. 2023)
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In 2019, Appellant filed a Form I-140 petition for a work visa under 8 USC Sec. 1153(b)(2) and Form I-485 applications for himself and his spouse to adjust their immigration statuses. Appellant's I-140 petition asserted that he satisfied the requirements to obtain a national-interest waiver under Sec. 1153(b)(2)(B)(i). USCIS declined to grant Appellant's request and denied his request for reconsideration.
Appellant sued the US government, challenging the denials of his I-140 petition, his motion for reopening or reconsideration, and his I-485 applications. The Government moved to dismiss Appellant's complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the jurisdictional bar in 8 USC § 1252(a)(2)(B)(ii) applies to national-interest waiver denials. The district court dismissed Appellant's case, citing a lack of subject-matter jurisdiction.
On appeal to the Fifth Circuit, Appellant claimed the district court erred in concluding that Sec. 1252(a)(2)(B)(ii) bars jurisdiction over the denial of an I140 petition. Joining the Ninth, Eleventh, Third and D.C. Circuits, the court affirmed, finding Sec. 1153(b)(2)(B)(i) “expressly and specifically vest discretion in the Attorney General” to deny national-interest waivers. Thus, the jurisdiction bar in Sec. 1252(a)(2)(B) applies.
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