Revised August 23, 2000

UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 99-10316 ___________________________

FLORENTINA CARDOSO; AURORA MORAN; ARTURO MARTINEZ

Plaintiffs-Appellants,

VERSUS

JANET RENO, Attorney General of the United States,

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court For the Northern District of Texas ___________________________________________________

July 11, 2000

Before POLITZ, DAVIS, Circuit Judges, and RESTANI, Judge1.

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs-Appellants brought this action for injunctive and

declaratory relief under

and section 301 of the

Immigration Act of 1990. They seek to compel the Attorney General

to adjust their immigration status, permit them to remain in the

United States, and provide them with work authorization. The

1 The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation.

1 district court dismissed the action, finding that

(g) deprived it of jurisdiction to review the action. For the

reasons that follow, we affirm.

I.

Appellants, Florentina Cardoso, Arturo Martinez, and Aurora

Moran are citizens of Mexico. Each Appellant illegally entered the

United States but contends that they are entitled to legal

permanent resident status.

Florentina Cardoso illegally entered the United States in July

1984 in order to join her husband, Cesario, who had been living in

the United States since 1982. Cesario had adjusted his own status

to that of temporary resident, later permanent resident, and sought

to adjust the status of his family pursuant to the Immigration and

Naturalization Service’s (“INS”) “Family Fairness Program.” The

Program, later superseded by Congress’s “Family Unity Program,”

(1990), provided the INS with regulations for suspending

deportation proceedings and issuing temporary work authorization to

the spouse and children of certain legalized aliens.

Cardoso alleges that she and her children received incorrect

information about the Program and that when she went to the INS

District Office to apply for an adjustment in status, the agents

directed her to a Detention and Deportation agent who prepared a

“record of deportable alien” for her and her children. Seven days

2 later, an Immigration Judge entered an “Order of Deportation” in

absentia against Florentina and her two children, Alfredo and Lucila

Cardoso.

Despite the deportation order, Florentina Cardoso again

requested, and this time received, voluntary departure and

employment authorization. The authorization permitted her to

legally work in the United States until September 11, 1999. In late

October 1996, Florentina attempted to adjust her status to that of

permanent resident. The INS denied her request for adjustment of

status and initiated deportation proceedings. According to Mrs.

Cardoso, an Immigration Judge terminated the proceedings upon

learning that the INS had granted her voluntary departure.

Nevertheless, Cardoso contends that she “has reason to believe that

she may be in jeopardy of being arrested and immediately deported

by the INS.” Cardoso bases this fear upon the fact that the INS has

already arrested and deported her son, Alfredo.2

Arturo Martinez, along with his wife, Eva Arroyo Martinez,

illegally entered the United States some time prior to 1979. In

1979, the INS apprehended Mr. Martinez and deported him to Mexico.

Shortly thereafter, Mr. Martinez illegally reentered the United

States, where he has resided ever since.

In 1991, Mrs. Martinez became a permanent resident and five

2 Mrs. Cardoso alleges that the INS deported Alfredo after the Dallas Police had arrested and charged him with driving an automobile with a suspended license.

3 years later, a naturalized citizen. Subsequently, Mrs. Martinez

filed an application for adjustment of status on behalf of her

husband. The INS denied the application on the ground that Martinez

had been deported in 1979 and had illegally reentered the United

States. Martinez contends that the INS erred in denying his

application of adjustment of status because it mistakenly classified

him as an unprotected alien, rather than a beneficiary of the Family

Unity Program. Martinez alleges that as a result of the INS’s

error, he now risks immediate deportation.

Aurora Moran was born in 1975. Her father, Manuel Moran, is

a lawful permanent resident. In February 1992, Moran filed for an

immigrant visa pursuant to

(a)(2)(A), which allots

visas to “qualified immigrants who are the spouses or children of

an alien lawfully admitted for permanent residence.” In 1995, prior

to her twenty-first birthday, a visa became available and Moran

filed for an adjustment of status to that of permanent resident.

In 1998, the INS completed consideration of Ms. Moran’s application,

denying her adjustment of status on the ground that she was no

longer an eligible child. Moran alleges that the INS erred in

denying her adjustment of status and that she now risks deportation

as a result.

On May 18, 1998, Plaintiffs Florentina Cardoso, Aurora Moran,

and Arturo Martinez filed this cause of action, originally as a

class action, alleging that the Attorney General violated a number

4 of federal immigration statutes. Plaintiffs seek declaratory and

injunctive relief requiring the Attorney General to “(a) allow them

to remain in the United States, (b) issue work authorization and,

when a visa is available to them (c) allow them to adjust status in

the United States.”

The Attorney General filed a Fed. R. Civ. P. 12(b)(6) motion

to dismiss on the grounds that

(g) had deprived the

court of jurisdiction, that the Plaintiffs had failed to establish

valid legal grounds for their complaint, and that the Plaintiffs had

failed to establish any prerequisite for class certification. The

district court, pursuant to the recommendations of the U.S.

Magistrate Judge, dismissed the complaint on the grounds of lack of

jurisdiction and failure to state a legally cognizable claim. This

appeal followed.

II.

We review a district court’s dismissal for lack of subject

matter jurisdiction de novo. John G. & Marie Stella Kennedy Mem’l

Found. V. Mauro,

(5th Cir. 1994). We will not

affirm the dismissal unless “it appears certain that [plaintiffs]

cannot prove any set of facts in support of [their] claim that would

entitle [them] to relief].”

In October 1996, Congress passed the Illegal Immigration Reform

and Immigration Responsibility Act (“IIRIRA”),

-546

5 (1996), substantially limiting judicial review of the Attorney

General’s immigration decisions. See Reno v. American-Arab Anti-

Discrimination Committee,

(1999)(“many provisions

of the IIRIRA are aimed at protecting the Executive’s discretion

from the courts – indeed, that can fairly be said to be the theme

of the legislation”). Section 1252(g) of the Act, which guided the

district court’s decision in this case, provides that:

Except as provided in this section and notwithstanding any other provisions of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

(g)(1999). This provision became effective on April

1, 1997 and “appl[ies] without limitation to claims arising from all

past, pending, or future exclusion, deportation, or removal3

proceedings.” IIRIRA § 306(c)(1),

-625(1999).

The district court, in adopting the magistrate’s report, held

that the effect of

(g) “is to completely remove from

all courts, jurisdiction or the ability to hear any claim arising

out of the Attorney General’s decision or action to commence

proceedings, adjudicate immigration cases, or execute removal

3 The IIRIRA changed the nomenclature of immigration orders so that orders of deportation and orders of exclusion are both now referred to as “orders of removal.” See IIRIRA § 309(d)(2),

(1996)(“Any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.”). We use the words “removal” and “deportation” interchangeably.

6 orders, except to the extent that judicial review of that decision

or action is provided for in . . .

.” The court

explained that because both Cardoso and Martinez are subject to

pending removal orders, section 1252(g) deprived the court of

jurisdiction to adjudicate their claims. Further, the court held

that the Attorney General enjoys complete discretion in the granting

of benefits under the Family Unity Program, and as such, courts lack

jurisdiction to review such decisions.

Appellants argue that the district court misconstrued section

1252 and committed reversible error by failing to consider the

Supreme Court’s recent decision in Reno v. American-Arab Anti-

Discrimination Committee,

. Appellants contend that

American-Arab strictly limited the jurisdiction-stripping effect of

section 1252(g), and that their claims fall outside of the section’s

limited reach.4

Although neither the magistrate judge nor district court cited

American-Arab, which indeed provides the controlling interpretation

of section 1252(g), this Court has long recognized that “reversal

is inappropriate if the ruling of the district court can be affirmed

on any grounds, regardless of whether those grounds were used by the

4 Appellants also contend that the district court and magistrate erred in characterizing their suit as a petition for habeas corpus. Although the district court did erroneously describe Plaintiffs’ suit, this error was harmless. The district court found that they lacked jurisdiction, not because they believed this action to be a habeas petition, but because of the claims it presented.

7 district court.” Bickford v. International Speedway Corp.,

(5th Cir. 1981). As we will discuss, American-Arab,

section 1252, and this Court’s more recent jurisprudence amply

support the district court’s determination that it lacked

jurisdiction over each of the Plaintiffs’ claims.

In American-Arab, the Supreme Court held that section 1252(g)

does not deprive courts of jurisdiction to review “the universe of

deportation claims” but rather applies only to “three discrete

actions that the Attorney General may take: her ‘decision or action’

to ‘commence proceedings, adjudicate cases, or execute removal

orders.’”

. As the Court explained:

There are of course many other decisions or actions that may be a part of the deportation process – such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order. It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.

.

Appellants contend that they are not challenging the Attorney

General’s decision to ‘commence proceedings,’ ‘adjudicate cases,’

or ‘execute removal orders.’ They characterize their claims as

challenges to the Attorney General’s denial of their requests for

adjustment of status. Because each of Plaintiffs’ claims is founded

on different factual backgrounds, we will analyze each separately.

8 A. Florentina Cardoso

Regardless of how she describes her claim, Florentina Cardoso

undeniably seeks to prevent the Attorney General from executing a

removal order. Cardoso is currently subject to a removal order

entered in absentia and seeks an adjustment in status so that she

may avoid that order. Indeed, in her complaint Cardoso, like the

other Plaintiffs, explains that she seeks to compel the Attorney

General to “allow [her] to remain in the United States.”

In Alvidres-Reyes v. Reno,

(5th Cir. 1999), this

Court declined to find jurisdiction under similar circumstances.

In that case, fifty illegal aliens residing in the United States,

only one of whom was currently in deportation proceedings, brought

a suit for mandamus, injunctive, and declaratory relief seeking to

compel the Attorney General to consider their applications for

suspension of deportation under a now-repealed provision of the

Immigration and Naturalization Act.

. This Court held

that section 1252(g) deprived the district court of jurisdiction to

hear the case. We explained that although the plaintiffs did “not

explicitly pray for the court to order the Attorney General to

initiate proceedings or adjudicate their deportability,” if

successful, plaintiffs’ suit would nevertheless “compel the Attorney

General to do so in order to consider their applications for

suspension of deportation.”

.

9 Similarly, if Cardoso prevails in the instant action, her suit

would preclude the Attorney General from executing an outstanding

removal order against her. Moreover, Cardoso and the other

Plaintiffs in this action, unlike the plaintiffs in Alvidres-Reyes,

explicitly seek to enjoin the Attorney General from removing them

from the United States. Although the Supreme Court’s decision in

American-Arab narrowly construed the reach of section 1252(g),

nothing in that decision permits aliens to make an end-run around

the terms of the statute by simply characterizing their complaint

as a challenge to a denial of adjustment of status, rather than a

challenge to the execution of a removal order. Cf. Ray v. Reno,

(D. Utah 1998)(holding that section 1252(g)

deprived the court of jurisdiction to enjoin the Attorney General

from executing a removal order so that defendant could seek an

adjustment of status). To permit such challenges would “lead to the

deconstruction, fragmentation, and hence prolongation of removal

proceedings at which the Supreme Court concluded that § 1252(g) is

directed.” Alvidres-Reyes,

.

This is not to say that section 1252(g) insulates the Attorney

General from any challenge that may prevent her from ultimately

executing removal orders. As the Supreme Court noted in American-

Arab, section 1252(g) does not prevent plaintiffs from challenging

“other decisions or actions that may be a part of the deportation

process - such as the decisions to open an investigation, surveil

10 the suspected violator . . ., or refuse reconsideration of a

[removal] order.” American-Arab,

. Similarly, this

Court has recognized that section 1252(g) does not bar courts from

reviewing an alien detention order, because such an order, “while

intimately related to efforts to deport, is not itself a decision

to ‘execute removal orders’ and thus does not implicate section

1252(g).” Zadvydas v. Underdown,

(5th Cir. 1999).

See also Requena-Rodriguez v. Pasquarell,

(5th

Cir. 1999)(holding that 1252(g) does not preclude challenge to final

deportation order); Paunescu v. INS,

(N.D.

Ill. 1999)(holding that 1252(g) does not apply where plaintiffs’

claims do not “involve any of the ‘specific steps in the deportation

process’”). In this case, however, Cardoso does not simply

challenge the Attorney General’s ability to take steps toward

removal, such as opening an investigation or surveilling a suspect.

Nor does Cardoso merely challenge a decision that, although

intimately related to the execution of a removal order, does not

implicate the actual execution of such an order. Instead, Cardoso

seeks an injunction commanding the Attorney General to adjust her

immigration status and precluding the Attorney General from

executing pending removal orders. Section 1252(g) precludes us from

considering such a claim. Cf. Sabhari v. Reno,

, 942

(8th Cir. 1999)(holding that where plaintiff’s petition for

adjustment of status was “separate and distinct from any matter

11 related to an order of deportation,” 1252(g) did not preclude

jurisdiction). As we explained in Alvidres-Reyes, “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.” Id. at 201.

Accordingly, the district court did not err in declining to exercise

jurisdiction over Cardoso’s complaint.

B. Arturo Martinez

Arturo Martinez illegally reentered the United States in 1979

and is therefore currently subject to summary removal. See

(a)(5)(1999)(“If the Attorney General finds that an alien has

reentered the United States illegally after having been removed or

having departed voluntarily, under an order of removal, the prior

order of removal is reinstated from its original date and is not

subject to being reopened or reviewed, the alien is not eligible and

may not apply for any relief under this chapter, and the alien shall

be removed under the prior order at any time after the reentry.”).

Although Martinez, like Cardoso, couches his claim as a challenge

to the immigration judge’s denial of his adjustment of status, he

admittedly seeks review of this decision in order to stave-off

deportation. Indeed, like Cardoso, Moran explicitly seeks to compel

the Attorney General to “allow [him] to remain in the United

12 States.” Because this challenge is tantamount to a challenge to the

execution of a removal order, section 1252(g) bars courts from

exercising jurisdiction. Cf. Lopez-Herrera v. INS,

(10th Cir. 2000)(unpublished disposition)(holding that 1252(g) bars

review of a request for stay of deportation where removal order was

based upon petitioner’s illegal reentry); Zsimopoulos v. Reno,

, *1 (E.D. Pa. Jul 15, 1998)(holding that section 1252(g)

bars courts from reviewing challenges to removal orders where

removal order was based upon petitioner’s illegal reentry because

such challenges constitute “review of a decision of the Attorney

General executing a removal order”); Mendez-Tapia v. Sonchik,

(D. Ariz. 1998)(same); Ayala v. Reno,

(W.D. Tex. 1998)(same). Accordingly, the district court

did not err in finding that it lacked jurisdiction to review

Martinez’s claim.

C. Aurora Moran

Unlike Martinez and Cardoso, Aurora Moran has never faced a

removal order. Although Moran contends that she fears deportation

because the INS denied her request for an adjustment of status, she

does not allege that the Attorney General has initiated removal

proceedings. Moran seeks nothing more than review of the

immigration judge’s denial of her request for adjustment of status.

As a matter of jurisdiction, courts may not review the

13 administrative decisions of the INS unless the appellant has first

exhausted “all administrative remedies.” I.N.A. 242(d), 8 U.S.C.

1252(d)(1999). In this case, although Moran may not directly appeal

the immigration judge’s denial of her request for adjustment of

status, she may, nevertheless, renew her request upon the

commencement of removal proceedings. See

(a)(5)(ii)(1999)(“No appeal lies from the denial of an

application by the director, but the applicant, if not an arriving

alien, retains the right to renew his or her application in

[removal] proceedings.”); Austin T. Fragomen, Jr. et al.,

Immigration Procedures Handbook 13-91 (1999)(“There is no direct

appeal from [an adjustment of status] denial. . . . If the alien

believes that the adjustment application was wrongly denied, he or

she has the right to reapply for adjustment of status as a part of

deportation proceedings brought against him or her by the INS. The

alien has a right to appeal the denial of an adjustment application

when ... made during a removal proceeding.”) As such, Moran has not

yet exhausted her administrative remedies and this Court may not

exercise jurisdiction. Accord McBrearty v. Perryman,

(7th Cir. May 11, 2000)(holding that plaintiff had failed

to exhaust remedies on adjustment of status claim where “they could

obtain review of the district director’s decision by the Board of

Immigration Appeals if and when the immigration service institutes

removal . . . proceedings against them”); Randall v. Meese,

(D.C. Cir. 1988)(declining to review denial of adjustment

of status where deportation proceedings had not commenced); Chan v.

Reno,

(S.D. N.Y. 1996)(holding that

exhaustion of administrative remedies doctrine precludes plaintiffs

from seeking judicial review where they have not been subjected to

deportation proceedings).

III.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

15