Zevallos et al v. Noem et al

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GERARDO FIDEL ZEVALLOS and §
MARIBEL ZEVALLOS, §
§
Plaintiffs, §
§
v. § Civil Action No. 3:26-CV-839-X
§
MARKWAYNE MULLIN, Secretary, §
U.S. Department of Homeland Security, §
et al., §
§
Defendants. §
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Gerardo and Maribel Zevallos (the Zevalloses) filed a pro se complaint against
officials in the U.S. Department of Homeland Security as well as the Attorney
General. The complaint sought a writ of mandamus, declaratory, and injunctive
relief. The Government moved to dismiss the case for lack of subject matter
jurisdiction. The United States Magistrate Judge made findings, conclusions, and
recommendations (FCR) in this case. The Zevalloses filed objections.
The Court reviewed de novo those portions of the FCR to which the Zevalloses
objected,1 OVERRULES each of the Zevalloses’ objections, and ACCEPTS the
relevant portions of the FCR. The Court reviewed the remaining portions of the FCR
for plain error and found none. Accordingly, the Court ACCEPTS and ADOPTS the
unobjected-to portions of the FCR.
1 28 U.S.C. § 636(b)(1).
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The Zevalloses’ first two objections argue the Magistrate Judge conflated the
Zevalloses’ requested relief with a request to direct an outcome on Gerardo’s
adjustment-of-status application.2 The Immigration and Naturalization Act “bars
judicial review of adjustment-of-status applications.”3 The Zevalloses concede that
section 1252 bars judicial review of adjustment-of-status applications.4 They instead
contend that section 1252’s jurisdictional bar does not apply because they are not
requesting the Court to direct an outcome to Gerardo’s adjustment-of-status
application.5 They want the Court to speed up disposition of that application so that,
in their view, section 1252’s judicial review bar will be lifted.6
Fifth Circuit precedent forecloses this argument. “Section 1255(a) expressly
leaves not only the ultimate decision to adjust an applicant’s immigration status but
also actions taken in the course of the decision-making process—including the pace
at which that process is undertaken—to the discretion of the Attorney General . . . .”7
Section 1252 thus divests the Court of jurisdiction to review “the antecedent
procedural circumstances” that the Zevalloses seek to challenge.8 Lacking
jurisdiction, this Court cannot order a “voluntary administrative consultation” that
2 See Doc. 21 at 5–10.
3 Edem v. Bondi, 2025 WL 2642207, at *5 (N.D. Tex. Sept. 15, 2025) (citing Patel v. Garland,
596 U.S. 328, 340 (2022), Momin v. Jaddou, 113 F.4th 552, 558 (5th Cir. 2024), and 8 U.S.C.
§ 1252(a)(2)(B)(i)).
4 See Doc. 21 at 6.
5 See id.
6 Id. at 7–8.
7 Cheejati v. Blinken, 106 F.4th 388, 394 (5th Cir. 2024).
8 Doc. 21 at 6.
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the Zevalloses’ second, third, and fifth objections suggest would resolve their claims.9
Accordingly, the Court OVERRULES the Zevalloses’ first, second, third, and fifth
objections10 and ACCEPTS the relevant portion of the FCR.11
The Zevalloses’ fourth and sixth objections seek leave to amend their
complaint’s Fifth Amendment Due Process Clause claim and request the Court’s
dismissal be without prejudice “to the maximum extent permitted by law.”12 The
FCR recommended dismissing the Zevalloses’ Due Process claim sua sponte with
prejudice.13 The FCR recommended dismissing the remaining claims without
prejudice.14
The Fifth Circuit “has repeatedly held that discretionary relief from removal,
including an application for an adjustment of status, is not a liberty or property right
that requires due process protection.”15 This principle extends to any interest related
to adjustment-of-status proceedings.16 The Zevalloses claim that the federal
government’s “prolonged failure to adjudicate Plaintiff’s immigration application”
has violated Gerardo’s “fundamental liberty interests protected by the Fifth
9 Doc. 21 at 9, 12; see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (“Jurisdiction
is power to declare the law, and when it ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause.” (quoting Ex parte McCardle, 7 Wall. 506, 514,
19 L.Ed. 264 (1868))).
10 See Doc. 21 at 5–12, 14–17.
11 See Doc. 20 at 2–3.
12 Doc. 21 at 12–14, 17–19.
13 See Doc. 20 at 3.
14 See id. at 4–5.
15 Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006).
16 See Edem, 2025 WL 2642207, at *5.
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Amendment.”17 The Fifth Circuit’s holding in Ahmed forecloses such a claim.18
Therefore, the Zevalloses do not have a valid claim under the Due Process Clause,
and the Court must DISMISS WITH PREJUDICE for failure to state a claim.19
The FCR recommends dismissing the remaining non-constitutional claims
without prejudice.20 The Court agrees that dismissal without prejudice is proper for
claims where the Court lacks jurisdiction.21 Accordingly, the Court OVERRULES
the Zevalloses’ fourth and sixth objections22 and ACCEPTS the relevant portion of
the FCR.23
* * *
The Court GRANTS the Government’s Motion to Dismiss (Doc. 17). The Court
DISMISSES WITH PREJUDICE the Zevalloses’ Fifth Amendment Due Process
claim. And the Court DISMISSES WITHOUT PREJUDICE the Zevalloses’
remaining non-constitutional claims. The Court GRANTS the Zevalloses leave to
amend their complaint to cure the jurisdictional defects identified in this Order
within 28 days of its issuance. This amendment is limited to the claims which the
Court dismissed without prejudice. They may not add new parties or claims.
17 Doc. 3 at 14.
18 See Ahmed, 447 F.3d at 440.
19 See id. (holding the plaintiff’s “Due Process claim therefore must be dismissed with
prejudice”).
20 See Doc. 20 at 4–5.
21 See Kewayfati v. Bondi, 165 F.4th 342, 355 (5th Cir. 2026) (holding that “jurisdictional
dismissals must be without prejudice”).
22 See Doc. 21 at 12–14, 17–19.
23 Doc. 20 at 3–4.
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SO ORDERED this 14th day of October, 2026.
_______________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
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