“This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” (citations omitted)
How later courts described this case
- “This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” (citations omitted)
- “[S]ince agency decisions . . . frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise.”
- “That is, its effect on [the alien] is to keep in place the status quo for the time being.” (emphasis in original)
- “An alien need not pursue an affirmative asylum process.”
Written by the judges who cited it.
The opinion
Case: 25-20073 Document: 71-1 Page: 1 Date Filed: 01/14/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
January 14, 2026
No. 25-20073
Lyle W. Cayce
____________
Clerk
Maribel Sayegh de Kewayfati,
Plaintiff—Appellant,
versus
Pamela Bondi, U.S. Attorney General; Angelica Alfonso-
Royals, Acting Director of U.S. Citizenship and Immigration Services;
Kristi Noem, Secretary, U.S. Department of Homeland Security;
Houston Asylum Office Director,
Defendants—Appellees,
consolidated with
_____________
No. 25-20101
_____________
Marlen Sayegh Agam de Maari,
Plaintiff—Appellant,
versus
Kristi Noem, Secretary, U.S. Department of Homeland Security;
Houston Asylum Office Director; Pamela Bondi, U.S.
Attorney General; Angelica Alfonso-Royals, Acting Director of U.S.
Citizenship and Immigration Services,
Case: 25-20073 Document: 71-1 Page: 2 Date Filed: 01/14/2026
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 4:24-CV-180, 4:23-CV-4129
______________________________
Before Barksdale, Willett, and Duncan, Circuit Judges. *
Don R. Willett, Circuit Judge:
Two Venezuelan sisters ask us to review nonfinal denials of their
affirmative-asylum applications, contending that their Temporary Protected
Status forecloses any present opportunity to renew those claims in removal
proceedings. Separate district courts dismissed the sisters’ suits for lack of
final agency action under the Administrative Procedure Act (APA). 1 They
were right to do so.
Federal courts are courts of limited jurisdiction—not overseers of
unfinished agency business. The challenged denials neither consummate the
Government’s decisionmaking on the sisters’ asylum eligibility nor
determine legal rights or obligations. Instead, they mark a midstream pause
in an ongoing administrative process—one that remains open to further
agency consideration. Because these nonfinal actions are not yet subject to
judicial review, we cannot intervene prematurely. We therefore AFFIRM
both district courts’ dismissals. And because the absence of final agency
action deprived those courts of subject-matter jurisdiction, we MODIFY
the dismissal entered with prejudice to one without prejudice.
_____________________
*
Judge Barksdale concurs in the judgment only.
1
Both district courts reached the same finality conclusion but relied on different
procedural vehicles for dismissal: one court dismissed without prejudice for lack of
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and the other dismissed with
prejudice for failure to state a claim under Rule 12(b)(6).
2
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I
Federal immigration law often resembles a house of mirrors, with
overlapping statutes and regulations reflecting upon one another. Some brief
scene-setting is therefore in order. We begin with a concise primer on the
relevant statutory and regulatory framework, followed by a recounting of the
challenged agency actions.
A
The Immigration and Nationality Act (INA) provides that an alien
who unlawfully enters or remains in the United States is subject to removal
to her home country. 2 Congress has, however, created several statutory
protections that bar removal in defined circumstances, two of which are
relevant here: asylum and Temporary Protected Status (TPS). 3
1
The first statutory protection, asylum, permits an alien who qualifies
as a refugee to lawfully remain in the United States. 4 An alien may seek
asylum in one of two ways.
First, she may apply affirmatively within one year of arriving in the
United States by filing the appropriate form with U.S. Citizenship and
Immigration Services (USCIS)—a component of the Department of
Homeland Security (DHS)—before the initiation of any removal
proceedings. 5 After an application is filed, a USCIS asylum officer conducts
a nonadversarial interview to gather relevant information bearing on asylum
_____________________
2
8 U.S.C. § 1227(a).
3
Id. §§ 1158, 1254a.
4
Id. § 1158(b)(1)(A); see id. § 1101(a)(42) (defining “refugee”).
5
Id. § 1158(a)(2)(B)–(D); 8 C.F.R. §§ 208.2, 208.3, 208.9.
3
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eligibility. 6 At all times, the alien bears the burden of establishing her refugee
status. 7
After reviewing an alien’s application, 8 the “asylum officer . . . may
grant . . . asylum.” 9 That decision is discretionary. 10 If the officer does not
grant asylum, the officer may either deny the application on the merits or
dismiss it for procedural reasons, including abandonment or failure to
appear. 11 What follows depends on the alien’s immigration status. 12 For
inadmissible or deportable aliens, USCIS refers the case to the Immigration
Court—comprised of an Immigration Judge (IJ) and the Board of
Immigration Appeals (BIA), both housed within the Department of Justice
(DOJ)—for removal proceedings. 13 But for aliens with lawful status, the
_____________________
6
8 C.F.R. §§ 208.9(b), (f).
7
Id. § 208.13(a); see also 8 U.S.C. § 1101(a)(42).
8
8 C.F.R. § 208.9(f).
9
Id. § 208.14(b); 8 U.S.C. § 1158(b)(1)(A) (“[T]he Secretary of Homeland
Security or the Attorney General may grant asylum.” (emphasis added)).
10
See Biden v. Texas, 597 U.S. 785, 802 (2022) (recognizing that the term
“‘may’ clearly connotes discretion” (emphasis in original) (citation omitted)). The APA
precludes judicial review of “agency action . . . committed to agency discretion by law.” 5
U.S.C. § 701(a)(2). And “this court has long recognized that 8 U.S.C. § 1[2]52(g) is
designed to protect the discretionary decisions of immigration authorities in matters related
to removal and deportation.” Duarte v. Mayorkas, 27 F.4th 1044, 1055 (5th Cir. 2022); see
also Alvidres-Reyes v. Reno, 180 F.3d 199, 201 (5th Cir. 1999) (“The Congressional aim of
§ 1252(g) is to protect from judicial intervention the Attorney General’s long-established
discretion to decide whether and when to prosecute or adjudicate removal proceedings or
to execute removal orders.”).
11
8 C.F.R. § 208.14(c).
12
See id. § 208.14(c)(1)–(4).
13
Id. § 208.14(c)(1).
4
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officer denies the application without commencing removal proceedings.14
Importantly, no regulation or statute precludes the Government from
commencing removal proceedings later if and when that lawful status ends.
Second, an alien may seek asylum defensively during removal
proceedings. 15 The regulations do not require an alien to first pursue
affirmative asylum, permitting her to choose when to press her claim. Once
removal proceedings begin, the IJ considers the asylum application de novo, 16
and that decision is appealable to the BIA. 17 Only after exhausting these
administrative remedies may the alien petition the appropriate federal court
of appeals for review of the asylum denial. 18
2
TPS, the second statutory protection, shields nationals of designated
countries from involuntary removal when safe return is not possible because
of extraordinary conditions—such as ongoing armed conflict, a natural
disaster, or an epidemic. 19 DHS 20 determines which foreign countries
_____________________
14
Id. § 208.14(c)(2); see also USCIS, Affirmative Asylum Procedures Manual, at 213
(2016), https://www.uscis.gov/sites/default/files/document/guides/AAPM.pdf.
15
See 8 C.F.R. § 208.2(b); Ramirez-Osorio v. I.N.S., 745 F.2d 937, 945 (5th Cir.
1984) (“In deportation proceedings, the alien’s right to petition for asylum is in the nature
of a defense assertable by an alien.”).
16
8 C.F.R. § 208.14(a).
17
Id. §§ 1003.1(b), 1003.38(a).
18
8 U.S.C. § 1252(a)(5).
19
Id. § 1254a(b); Sanchez v. Mayorkas, 593 U.S. 409, 412 (2021); Duarte, 27 F.4th
at 1049.
20
The Homeland Security Act of 2002 transferred many functions vested in the
Attorney General to the Secretary of Homeland Security. Pub. L. No. 107–296, 116 Stat.
2135 (2002). As a result, any statutory references concerning the transferred functions
“shall be deemed to refer to [DHS]” rather than the Attorney General. 6 U.S.C. § 557.
5
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receive TPS designation. 21 An initial designation typically lasts between six
and eighteen months and may be extended in successive six- to eighteen-
month increments. 22 Designated countries must be reviewed periodically to
determine whether the conditions preventing safe return continue to exist. 23
Once a country is designated, eligible nationals may apply for TPS
protection. 24 Those who qualify must remain continuously present in the
United States and periodically reregister to maintain that protection. 25
Along with protection from removal, TPS also confers lawful status,
authorizing an alien to remain and work in the United States. 26 But unlike
asylum, TPS “is not itself a ‘pathway to family reunification, permanent
residency, or citizenship.’” 27 Instead, TPS “freezes an alien’s position
within the immigration system.” 28 Because an alien with active TPS is
lawfully present and not removable, USCIS does not immediately refer a
denied asylum application to an IJ. 29
Despite its significant benefits, TPS may also slow the administrative-
review process because a denied asylum application is not immediately
_____________________
21
8 U.S.C. § 1254a(b).
22
Id. § 1254a(b)(2)–(3).
23
Id. § 1254a(b)(3)(A).
24
Id. § 1254a(c).
25
Id. § 1254a(c)(3)(C).
26
Id. §§ 1254a(a)(1)(A)–(B), 1254a(f)(4); see also Sanchez, 593 U.S. at 412.
27
Duarte, 27 F.4th at 1053 (quoting Dhakal v. Sessions, 895 F.3d 532, 537 (7th Cir.
2018)).
28
Id.
29
Sanchez, 593 U.S. at 412; 8 C.F.R. § 208.14(c)(2).
6
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referred for removal proceedings. 30 For that reason, TPS is voluntary and
places control over its benefits and burdens with the alien, who must apply
for TPS, reregister as required, and maintain continuous presence in the
United States. 31 An alien loses TPS by failing to satisfy these requirements
or upon DHS’s termination of her country’s designation. 32
B
Two sisters, Maribel Sayegh de Kewayfati (Kewayfati) and Marlen
Sayegh Agam de Maari (Maari), are Venezuelan nationals with TPS who
filed affirmative-asylum applications in 2014. Their asylum applications
alleged both past persecution and a fear of future persecution upon return to
their home country. Maari interviewed with a USCIS asylum officer on
January 17, 2024, and Kewayfati interviewed three days later on January 20,
2024. While those applications remained pending, each sister received TPS
under Venezuela’s designation.
After delays in adjudicating their asylum applications, each sister sued
the Attorney General and other Executive Branch officials for inaction and
unlawful delay. USCIS issued notices of intent to deny the asylum
applications shortly thereafter, and the sisters formally responded. After
concluding that the responses were unpersuasive, USCIS issued denial
letters concluding that the sisters had failed to establish a reasonable
possibility of persecution upon return to Venezuela. The letters stated that
_____________________
30
8 C.F.R. § 208.14(c)(2); see also USCIS, Affirmative Asylum Procedures Manual,
at 213 (2016), https://www.uscis.gov/sites/default/files/document/guides/AAPM.pdf.
31
See 8 U.S.C. § 1254a(c) (describing the TPS application process and
reregistration process); id. § 1254a(c)(3)(B)–(C).
32
Id. § 1254a(c)(3)(B) (failure to remain continuously present); id.
§ 1254a(c)(3)(C) (failure to reregister); id. § 1254a(b)(3)(B) (termination of country
status).
7
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the asylum denials could not be appealed and that, due to TPS, there would
be no referral at that time to the IJ for removal proceedings.
After receiving the denial letters, the sisters amended their complaints
to instead ask the district courts to vacate the denials and declare them
arbitrary and capricious and contrary to law under the APA. According to
their amended complaints, the sisters argued that judicial review was
warranted because they had exhausted all available administrative channels
and lacked an adequate remedy otherwise as TPS beneficiaries. The
Government moved to dismiss both suits for lack of subject-matter
jurisdiction under Rule 12(b)(1) and, alternatively, for failure to state a claim
under Rule 12(b)(6).
Both district courts dismissed for lack of final agency action. The
courts, however, relied on different procedural vehicles: Rule 12(b)(1) in
Maari’s case and Rule 12(b)(6) in Kewayfati’s case. We consolidated these
cases on appeal.
II
We have appellate jurisdiction under 28 U.S.C. § 1291. 33 We review
de novo district court orders dismissing a claim for lack of subject-matter
_____________________
33
Although neither district-court docket reflects the entry of a separate final
judgment, each court’s dismissal order “end[ed] the litigation” by dismissing the sisters’
claims. Catlin v. United States, 324 U.S. 229, 233 (1945). Neither lawsuit proceeded below
after the dismissal orders, and no party contends that the dismissal orders are not final
judgments. “Where, as here, the district court clearly intend[ed] to effect a final dismissal
of a claim, we will construe its order accordingly[.]” Picco v. Glob. Marine Drilling Co., 900
F.2d 846, 849 n.4 (5th Cir. 1990) (citation omitted). In any event, more than “150 days
have run from the entry [of the dismissal orders] in the civil docket.” Fed. R. Civ. P.
58(c)(2)(B).
8
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jurisdiction or for failure to state a claim. 34 Resolution of these consolidated
appeals turns on whether the USCIS denial letters qualify as final agency
action. 35 They do not. Accordingly, the district courts correctly dismissed the
sisters’ APA lawsuits.
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 thereof.” 36 But this
grant of judicial review is limited to challenges “made reviewable by statute”
or, if not made reviewable, involving “final agency action for which there is
no other adequate remedy in a court.” 37 Only the second category applies
here. The Supreme Court held in Bennett v. Spear that agency action is final
if it satisfies two conditions: (1) the action “mark[s] the consummation of the
agency’s decisionmaking process” and (2) is one “by which rights or
obligations have been determined, or from which legal consequences will
_____________________
34
McDonnel Grp., L.L.C. v. Great Lakes Ins. SE, UK Branch, 923 F.3d 427, 430
(5th Cir. 2019).
35
The sisters’ amended complaints also asserted that subject-matter jurisdiction
exists under the Declaratory Judgment Act and 28 U.S.C. § 1331 as a federal question. But
the Declaratory Judgment Act does not provide an independent basis for subject-matter
jurisdiction. In re B-727 Aircraft Serial No. 21010, 272 F.3d 264, 270 (5th Cir. 2001). “And
§ 1331 alone does not provide jurisdiction for agency actions” absent a statutory waiver of
sovereign immunity. Elldakli v. Garland, 64 F.4th 666, 670 (5th Cir. 2023). Jurisdiction
thus “hinges” on the APA’s waiver. Id.; see also Stockman v. FEC, 138 F.3d 144, 151 n.13
(5th Cir. 1998) (citations omitted) (“[T]he APA does not create an independent grant of
jurisdiction to bring suit. . . . If . . . the APA creates a cause of action . . . jurisdiction exists
under the general federal question statute, not the APA. . . . The APA then serves as the
waiver of sovereign immunity that allows a private party to sue the government.”).
36
5 U.S.C. § 702.
37
Id. § 704.
9
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flow.” 38 In other words, “[t]he core question is whether the agency has
completed its decisionmaking process, and whether the result of that process
is one that will directly affect the parties.” 39 We apply those requirements
here.
A
We begin with the first Bennett prong: whether a USCIS denial letter
reflects the consummation of the agency’s decisionmaking process for an
affirmative-asylum application. The sisters contend that it does. Because
TPS prevents removal, they argue, no further administrative review is
available. We disagree. “An agency action is not final if it is only ‘the ruling
of a subordinate official,’ or ‘tentative.’” 40 That is precisely the case here.
Although we have yet to consider whether USCIS’s denial of
affirmative asylum to a TPS beneficiary constitutes final agency action, our
sister circuit has squarely addressed this exact scenario. In Dhakal v. Sessions,
the Seventh Circuit rejected an alien’s APA challenge based on USCIS’s
denial of his asylum application. 41 In doing so, the court persuasively
explained that such a denial—“when viewed in light of the intended,
complete administrative process”—is nonfinal because “the executive
branch simply has not completed its review of [asylum] claims” at the
USCIS stage. 42
_____________________
38
520 U.S. 154, 177–78 (1997) (citation omitted); see also Texas v. Becerra, 89 F.4th
529, 538 (5th Cir. 2024) (citing Bennett’s two conditions).
39
Franklin v. Massachusetts, 505 U.S. 788, 797 (1992).
40
Id. at 797 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 151 (1967)).
41
895 F.3d at 540.
42
Id.
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This USCIS stage is only one—and a preliminary one—in a broader
administrative process. 43 Once an alien is referred to the Immigration Court,
the IJ “‘develops the more extensive factual record,’” applies its specialized
expertise, and renders a decision subject to review by the BIA, 44 which
affords a greater “chance to discover and correct . . . errors” before any
judicial intervention. 45 That structure reflects Congress’s considered
judgment that the IJ and the BIA should have the first opportunity to
adjudicate asylum claims before federal courts weigh in. 46
Viewed against this statutory backdrop, a USCIS officer’s denial
does not mark the end of the review process. Rather, it is an early step in a
larger, integrated administrative process that culminates with a BIA decision
that “speaks with final authority for the executive branch” on asylum
eligibility. 47 Until that point, the executive branch has not completed its
decisionmaking on the alien’s asylum claims. The USCIS officer’s denial,
in this respect, is better understood as “‘a tentative recommendation than a
final and binding determination,’ or ‘the ruling of a subordinate official,’”
rather than a final resolution. 48
The Seventh Circuit emphasized that Congress designed the asylum
framework to consolidate and channel review through a “single
_____________________
43
See id. at 539 (“An alien need not pursue an affirmative asylum process.”).
44
Id. (quoting Kashani v. Nelson, 793 F.2d 818, 826 (7th Cir. 1986)).
45
Kashani, 793 F.2d at 826 (citation omitted); see also McKart v. United States, 395
U.S. 185, 195 (1969) (“[S]ince agency decisions . . . frequently require expertise, the agency
should be given the first chance to exercise that discretion or to apply that expertise.”).
46
Dhakal, 895 F.3d at 539; see also McKart, 395 U.S. at 195.
47
Dhakal, 895 F.3d at 540.
48
Id. (quoting Franklin, 505 U.S. at 798).
11
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administrative process,” even though that process spans multiple agencies. 49
Finality attaches only when that process runs its full course. Where, as here,
a TPS beneficiary remains protected from removal and has not yet
proceeded through defensive-asylum adjudication, the executive branch has
not consummated its decisionmaking. We therefore agree with our sister
circuit that the denial of affirmative asylum is only a preliminary checkpoint
and does not preclude further administrative review.
As additional support for this conclusion, we recently held in an
analogous context that USCIS’s adjustment-of-status denials are not final
because the applicants may still seek review of those interim decisions in
future removal proceedings. 50 The same logic applies here. A TPS
beneficiary who is denied affirmative asylum at an early administrative
juncture may later pursue asylum defensively in removal proceedings. After
all, as the sisters themselves recognize, TPS merely “freezes an alien’s
position within the immigration system” without transforming status. 51 This
temporary freeze does not preclude an alien from seeking asylum at some
later point, particularly when the applicable regulations expressly
contemplate defensive asylum. 52 A TPS beneficiary may seek defensive
asylum in one of two ways: either withdraw from TPS prior to its expiration
to eliminate the block on removal or wait until Venezuela’s TPS designation
expires. These options may not be ideal to the sisters, but either one provides
_____________________
49
Id. at 540 n.10.
50
Elldakli, 64 F.4th at 670–71 (holding that a status adjustment is not final agency
action because “the alien retains the right to de novo review of that decision in h[er] final
removal proceedings”).
51
Duarte, 27 F.4th at 1053.
52
See 8 C.F.R. § 208.2(b); Ramirez-Osorio, 745 F.2d at 945 (“In deportation
proceedings, the alien’s right to petition for asylum is in the nature of a defense assertable
by an alien.”).
12
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eventual review. It is thus inaccurate for the sisters to contend that they “now
seek review in the only available avenue.” Other avenues exist, just not in the
manner the sisters prefer.
To be sure, the Government retains discretion over the initiation of
removal proceedings. 53 And while this reality could result in a period of
inaction that places a TPS beneficiary in a “limbo state,” such a state is
nevertheless the result of enforcement discretion not subject to judicial
review. 54 As the Seventh Circuit recognized, respecting this discretion
“promotes efficiency” by preventing the agency from “expend[ing] its
resources on initiating and prosecuting its case to obtain what might be an
inconsequential removal order” should the sisters’ TPS be extended or
should they obtain another form of lawful status. 55 It also allows the agency
to “prioritize[] the cases for removal where aliens . . . must assert asylum as
a defense to otherwise imminent removal.” 56 The sisters may dislike how the
asylum statute balances these competing interests. But that disagreement
does not authorize a judicial override of Congress’s legislative judgment. 57
Any unfortunate consequences or incentives are for Congress to fix—not us.
_____________________
53
See 8 U.S.C. § 1252(g); see also Dhakal, 895 F.3d at 541 n.11.
54
See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“This Court has recognized on
several occasions over many years that an agency’s decision not to prosecute or enforce,
whether through civil or criminal process, is a decision generally committed to an agency’s
absolute discretion.” (citations omitted)). The sisters do not challenge the applicable
regulation or the discretion it authorizes to open removal proceedings against an
unsuccessful asylum applicant previously under TPS. See 8 C.F.R. § 208.14(c)(2); see also
8 U.S.C. § 1252(g).
55
Dhakal, 895 F.3d at 541.
56
Id. at 540 (footnote omitted).
57
See Moosa v. I.N.S., 171 F.3d 994, 1009 (5th Cir. 1999) (declining to
“second-guess . . . policy choices properly made by the legislative branch); Bright v. Parra,
919 F.2d 31, 33 (5th Cir. 1990) (recognizing that immigration “policy questions [are]
13
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With further administrative process available in the future, “the
executive branch simply has not completed its review of [the sisters’] claims
and consequently has not made a final decision regarding [their] . . . eligibility
for asylum.” 58 Even if the sisters elect not to relinquish TPS, there is little
reason to believe that this additional process in removal proceedings will not
eventually occur given the statutory requirement for periodic review of a
country’s TPS designation. 59 USCIS’s denial letters thus do not
consummate the Government’s decisionmaking process as to the sisters’
asylum eligibility.
B
We turn next to the second Bennett prong, which proves even more
problematic for the sisters—and alternatively reveals the absence of finality.
The sisters contend that the denial letters determined their legal rights,
depriving them of the opportunity to obtain asylum’s derivative benefits,
such as a path to lawful permanent residence. Again, we disagree.
The denial letters did not alter the sisters’ legal status. Both sisters
remain in TPS, which protects them from removal and authorizes their
continued lawful presence and ability to work in the United States. 60 The
sisters view this as “an amorphous place holder.” But keeping the “status
quo [in place] for the time being”—even if for a prolonged period—is not a
_____________________
entrusted exclusively to the political branches of our government” such that there is “no
judicial authority to substitute our political judgment for that of the Congress” (citation
omitted)).
58
Dhakal, 895 F.3d at 540 (footnote and citation omitted).
59
8 U.S.C. § 1254a(b)(3)(A) (mandating periodic TPS review to ensure that the
conditions preventing safe return still exist); see Duarte, 27 F.4th at 1053 (discussing this
statutory requirement).
60
8 U.S.C. § 1254a(a)(1)(A)–(B).
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decision from which actual “legal consequences . . . flow.” 61 That is because
“the finality requirement is concerned with whether the initial
decisionmaker has arrived at a definitive position on the issue that inflicts an
actual, concrete injury.” 62 There is no such injury here.
Nor do the denial letters bar the sisters from reasserting their asylum
claims once TPS ends. Although the denial letters are nonappealable at this
time, additional review will be available once the Government initiates
removal proceedings. No doubt, the sisters would each obtain certain
benefits if granted asylum, including certainty about their immigration status,
a path toward lawful permanent residence and citizenship, and the ability for
their family members to join them in the United States. 63 But those benefits
are merely delayed—not definitely foreclosed—since TPS “freezes [their]
position.” 64 All the while, the sisters may lawfully remain in the United
States and use the “additional time . . . to build a stronger asylum claim”
(since an asylum officer found their previous attempts lacking) and “to
develop any other potential avenues for immigration relief as defenses to
removal.” 65 Consequently, this interim deferral period carries no concrete
legal effect: the sisters remain lawfully present and may reassert asylum at a
later point.
_____________________
61
See Dhakal, 895 F.3d at 540 (“That is, its effect on [the alien] is to keep in place
the status quo for the time being.” (emphasis in original)); see also Bennett, 520 U.S. at 178
(citing Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62,
71 (1970)).
62
Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473
U.S. 172, 193 (1985) (emphasis added).
63
Duarte, 27 F.4th at 1053.
64
Id.
65
Dhakal, 895 F.3d at 540–41.
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Cases decided after the Seventh Circuit’s Dhakal decision do not
bolster the sisters’ arguments in favor of judicial review. Specifically,
Solorzano v. Mayorkas 66 and Sanchez v. Mayorkas 67 addressed whether a TPS
recipient is lawfully admitted for purposes of adjustment of status—“distinct
concepts in immigration law.” 68 But this distinction is irrelevant to the
question before us and is not disputed by the Government. Neither case
addressed asylum, administrative finality, or the availability of APA review.
And neither case undermined the settled principle that TPS functions as a
temporary shield that delays removal proceedings while simultaneously
conferring lawful status.
The sisters’ reliance on internal agency guidance fares no better.
Invoking USCIS’s Affirmative Asylum Procedures Manual, the sisters
argue that a nonfinality determination in their circumstances contradicts the
manual’s language that “[a]n applicant [deemed ineligible for asylum] who
is in [lawful] status receives a Final Denial letter without an accompanying
[Notice to Appear]” in removal proceedings. 69 The sisters overread this
language. Although the language references a “final” denial, it refers only to
USCIS’s final action at that stage of the process, not to the consummation
of the entire administrative-review scheme. In any event, the USCIS manual
is not law: it creates no rights, imposes no obligations, and cannot expand
federal jurisdiction where Congress has not. At most, internal manuals are
nonbinding guidance for agency personnel rather than a source of judicially
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66
987 F.3d 392, 399 (5th Cir. 2021).
67
593 U.S. at 414–15.
68
Id. at 415.
69
USCIS, Affirmative Asylum Procedures Manual, at 213 (2016),
https://www.uscis.gov/sites/default/files/document/guides/AAPM.pdf.
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enforceable standards. 70 Whatever the USCIS manual says about the
handling of asylum applications, it cannot override the APA’s finality
requirement or displace the statutory structure Congress enacted for asylum
adjudication. 71
Finally, the sisters argue that declining to treat the denial letters as
final agency action encourages an alien to break the law by falling out of lawful
status just to gain additional agency review. But this policy argument does
not authorize us to ignore the comprehensive review scheme Congress
created—even if that process is flawed or suboptimal. 72 In support of this
contention, the sisters point to a concurrence in a different immigration case
that advances a similar policy concern. 73 Notably, that concurrence expressly
recognized that our precedent foreclosed this policy view, 74 and we reiterate
the same today. Whether such policy concerns have merit may be an
important conversation, but it is one that warrants legislative—not judicial—
attention. If nothing else, concern about a problematic incentive certainly
does not license us to revise prior circuit precedent. 75
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70
See Apter v. DHHS, 80 F.4th 579, 590 (5th Cir. 2023) (recognizing that non-
substantive agency rules not produced via the notice-and-comment process “lack the force
of law” (quoting Walmart Inc. v. DOJ, 21 F.4th 300, 308 (5th Cir. 2021)).
71
See id.
72
See Moosa, 171 F.3d at 1009–10; Parra, 919 F.2d at 33.
73
See Elldakli, 64 F.4th at 671–74 (Higginbotham, J., concurring in the
judgment).
74
Id. at 671 (recognizing that our precedent is controlling but criticizing it as “a
misstep”).
75
See In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021) (“It is a
well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn
another panel’s decision, absent an intervening change in the law, such as by a statutory
amendment, or by the Supreme Court, or our en banc court.” (quoting Jacobs v. Nat’l Drug
Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008)).
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The review the sisters seek is deferred—not denied. That
postponement underscores what is dispositive here: the denial letters do not
concretely alter any legal rights or trigger legal consequences. Without those,
there is no final agency action.
* * *
Applying Bennett’s two-part test, we conclude that the denial letters
are not final agency action. With respect to the first prong, the denial letters
function as interim determinations that do not consummate the
Government’s decisionmaking on the sisters’ asylum eligibility. The
Government’s ultimate decision on asylum will occur once the sisters have
exhausted the administrative-review process by defensively raising asylum in
removal proceedings. With respect to the second prong, the denial letters
carry no independent legal effect and simply postpone final adjudication
without concretely injuring the sisters. Accordingly, we AFFIRM the
district courts’ dismissals because the lack of finality is dispositive of the
sisters’ claims.
III
Having determined that the denial letters are not final agency action,
we next consider how this finality determination bears on the appropriate
disposition. The district courts deployed two different procedural vehicles:
dismissal for lack of jurisdiction under Rule 12(b)(1) in Maari’s case and
dismissal for failure to state a claim under Rule 12(b)(6) in Kewayfati’s case.
We conclude that dismissal for lack of jurisdiction is the proper disposition.
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In our circuit, jurisdiction over APA claims depends on the presence
of final agency action. 76 No final agency action exists here because the sisters
did not let the administrative process run its course. Because “courts may
not review the administrative decisions . . . unless the appellant has first
exhausted ‘all administrative remedies,’” 77 the district courts lacked
jurisdiction to review the sisters’ claims. 78
To be sure, the line between jurisdictional and merits inquiries in
APA cases can blur. It is for that reason that other circuits treat finality as
bearing on the merits rather than jurisdiction. 79 But our circuit views the lack
of final agency action as a jurisdictional defect that bars judicial review,
making Rule 12(b)(1) the proper vehicle for dismissal. 80
Importantly, jurisdictional dismissals must be without prejudice. 81 We
have emphasized that “a jurisdictional dismissal must be without prejudice to
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76
E.g., Am. Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999); Peoples Nat’l
Bank v. Off. of Comptroller of Currency of U.S., 362 F.3d 333, 336 (5th Cir. 2004); Elldakli,
64 F.4th at 670.
77
Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000) (citing 8 U.S.C. § 1252(d)).
78
See id.; Elldakli, 64 F.4th at 670–71.
79
See, e.g., Dhakal, 895 F.3d at 538–39 (concluding that lack of finality is not
jurisdictional but instead is a required element that informs whether a party states a claim
on the merits); Jama v. DHS, 760 F.3d 490, 494–95 (6th Cir. 2014) (same); Trudeau v.
FTC, 456 F.3d 178, 184 (D.C. Cir. 2006) (same).
80
Elldakli, 64 F.4th at 669–70; Peoples Nat’l Bank, 362 F.3d at 336; Cardoso, 216
F.3d at 518; see also Petrenko-Gunter v. Upchurch, No. 05-11249, 2006 WL 2852359, at *1
(5th Cir. Oct. 2, 2006) (per curiam) (“Because an individual denied an adjustment of status
can renew that request for adjustment of status upon the commencement of removal
proceedings, [the applicant] has not yet exhausted her administrative remedies.”).
81
See Abdullah v. Paxton, 65 F.4th 204, 208 n.3 (5th Cir. 2023) (per curiam)
(recognizing that “dismissals based on jurisdictional issues must, by their very nature, be
without prejudice” (quoting Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996)).
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refiling in a forum of competent jurisdiction.” 82 And we have further
explained that a court without jurisdiction is “without authority to dismiss
. . . claims with prejudice because a dismissal with prejudice is a final
judgment on the merits of a case.” 83 Accordingly, we AFFIRM both
dismissals. Specifically, we AFFIRM in full the district court’s dismissal
without prejudice in Maari’s case. However, the district court in Kewayfati’s
case dismissed with prejudice, so we AFFIRM the judgment insofar as it
dismisses the action 84 but MODIFY that judgment 85 to a dismissal without
prejudice, as is required when a court lacks jurisdiction. 86
IV
Federal courts are not a fallback forum for disappointed applicants
midstream in the administrative process. Nor does the APA license advisory
opinions or premature refereeing of unfinished agency business. The APA
authorizes judicial review only of final agency actions. That limitation is a
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82
Carver v. Atwood, 18 F.4th 494, 498 (5th Cir. 2021).
83
Campos v. United States, 888 F.3d 724, 738 (5th Cir. 2018) (emphasis added)
(cleaned up).
84
“We may affirm on any ground supported by the record, including one not
reached by the district court.” Hammervold v. Blank, 3 F.4th 803, 813 (5th Cir. 2021)
(citation omitted). This is especially true where there is a purely legal question like
jurisdiction. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 540–41 (1986)
(reviewing a jurisdictional question not analyzed by the lower courts). A jurisdictional
dismissal is also appropriate here because federal courts have a continuing obligation to
evaluate their own jurisdiction as a threshold question. See Elldakli, 64 F.4th at 669
(citations omitted).
85
Remand is unnecessary for this error. See Morrison v. Nat’l Austl. Bank Ltd., 561
U.S. 247, 254 (2010) (“Since nothing in the analysis of the court[] below turned on the
mistake, a remand would only require a new . . . label for the same . . . conclusion.”).
86
See Abdullah, 65 F.4th at 208 n.3.
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critical constitutional guardrail 87—not a mere technicality—that prevents an
end-run around the INA. 88
The USCIS letters denying the sisters’ affirmative-asylum
applications did not mark the end of the road. While TPS remains in effect
for the sisters, the administrative-review process is not complete because
defensive asylum remains available in future removal proceedings. The
agency also has not concretely altered the sisters’ legal rights. They retain
lawful status, and the pause on their removal proceedings due to TPS merely
preserves the status quo. In other words, the USCIS denials at that
preliminary juncture changed nothing for the sisters: no rights were fixed, no
obligations were imposed, and no concrete legal consequences flowed.
Without such consequences, no final agency action occurred to establish
jurisdiction.
To be sure, the agency’s denial of asylum to an alien is reviewable in
federal court at some stage prior to removal. But that does not mean judicial
review is available at any time or in any forum the applicant chooses. Only
after the agency has made a final decision—after completion of removal
proceedings before the IJ and following appeal to the BIA—does judicial
review of an asylum denial become appropriate. Because the sisters have not
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87
See Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP, 143 S. Ct. 2027,
2027–28 (2023) (mem.) (Thomas, J., joined by Gorsuch and Barrett, JJ.,
dissenting from the denial of certiorari) (recognizing that questions of statutory jurisdiction
still implicate important separation-of-powers considerations (citing Steel Co. v. Citizens for
Better Environment, 523 U.S. 83, 101, 118 (1998)).
88 Ardestani v. I.N.S., 502 U.S. 129, 133 (1991) (“Congress intended the provisions
of the . . . INA . . . to supplant the APA in immigration proceedings.”); Dubey v. DHS,
154 F.4th 534, 537 (7th Cir. 2025) (“An alien cannot use the APA to transfer review of an
asylum determination to a district court, separating that issue from review of the [future]
order of removal.”).
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gone as far as they could in obtaining administrative adjudication, there is no
final agency action.
We therefore AFFIRM both dismissals but MODIFY the judgment
in Kewayfati’s case to a dismissal without prejudice for lack of subject-matter
jurisdiction.
22