Selvin Leonardy Solis Meza v. Tracy Renaud , Acting Director , United States Citizenship and Immigration Services

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 29, 2021 Decided August 17, 2021
No. 20-5079
S ELVIN LEONARDY S OLIS M EZA,
APPELLANT
v.
TRACY R ENAUD , ACTING DIRECTOR , UNITED S TATES
C ITIZENSHIP AND IMMIGRATION S ERVICES ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01322)
Geoffrey Forney argued the cause for appellant. With him
on the briefs was Bradley B. Banias.
Mary L. Larakers, Trial Attorney, U.S. Department of
Justice, argued the cause for appellee. With her on the briefs
were Brian M. Boynton, Acting Assistant Attorney General,
and Elianis N. Perez, Assistant Director. R. Craig Lawrence
and Marsha W. Yee, Assistant U.S. Attorneys, entered
appearances.
Before: TATEL, M ILLETT, and KATSAS , Circuit Judges.
Opinion for the Court filed Circuit Judge KATSAS .

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KATSAS , Circuit Judge: Seeking an adjustment of status
from the United States Citizenship and Immigration Services,
Selvin Solis Meza contends that he is an arriving alien—a
question resolved against him in a prior removal proceeding.
This case presents the question whether the Immigration and
Nationality Act barred the district court from considering
Meza’s argument.
I
A
The INA governs the removal of aliens from the United
States. It provides that an alien is inadmissible if he is “present
in the United States without being admitted or paroled” or if he
arrived in the United States “at any time or place other than as
designated by the Attorney General.” 8 U.S.C.
§ 1182(a)(6)(A)(i).1 The INA makes inadmissible aliens
removable. Id. §§ 1227(a)(1)(A), 1229a(e)(2).
To commence removal proceedings, the government must
issue the alien a “notice to appear” at a removal hearing. 8
U.S.C. § 1229(a)(1). This notice must inform the alien of the
charges against him and the time and place of the hearing. Id.
§ 1229(a)(1)(D), (G)(i). If the alien does not attend the
hearing, an immigration judge may order him removed in
absentia upon finding “clear, unequivocal, and convincing
evidence” that the alien had notice of the hearing and is
removable. Id. § 1229a(b)(5)(A).
1 When Meza entered the country, the Attorney General was
responsible for designating times and places of arrival. The
Homeland Security Act of 2002 later transferred this authority to the
Secretary of Homeland Security, though the INA still refers to the
Attorney General. See 6 U.S.C. § 251(2).

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Section 1252 of Title 8 provides for judicial review of final
removal orders. As relevant here, it states that “a petition for
review filed with an appropriate court of appeals in accordance
with this section shall be the sole and exclusive means for
judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5).
Such a petition must be filed within 30 days of the removal
order, in the court of appeals for the judicial circuit where the
removal proceeding was conducted. Id. § 1252(b)(1), (2).
Section 1252 further provides that such a petition is the sole
means for obtaining judicial review of “questions of law and
fact … arising from any action taken or proceeding brought to
remove an alien.” Id. § 1252(b)(9).
B
The Secretary of Homeland Security may adjust the status
of aliens who have been “admitted or paroled” into the United
States to that of a lawful permanent resident. 8 U.S.C.
§ 1255(a) (authority of Attorney General); see 6 U.S.C.
§ 271(b)(1) (transfer of authority to the Secretary). Admission
occurs when an immigration officer inspects the alien and
authorizes him to enter the United States. 8 U.S.C.
§ 1101(a)(13)(A). Parole occurs when an immigration officer
allows an alien into the United States “temporarily … for
urgent humanitarian reasons or significant public benefit.” Id.
§ 1182(d)(5)(A). The Secretary may adjust the status of
admitted or paroled aliens “in his discretion and under such
regulations as he may prescribe.” Id. § 1255(a).
The regulations provide for immigration judges or USCIS
to adjudicate applications for status adjustment. Immigration
judges have exclusive jurisdiction over any application filed by
an alien “who has been placed in ... removal proceedings (other
than as an arriving alien).” 8 C.F.R. § 1245.2(a)(1)(i). USCIS
has jurisdiction over all other applications, including those

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filed by aliens placed in removal proceedings as arriving aliens.
Id. § 245.2(a)(1). As relevant here, an arriving alien is “an
applicant for admission coming or attempting to come into the
United States at a port-of-entry.” Id. § 1.2.
C
In 2002, the Immigration and Naturalization Service
served on Meza a notice to appear at a removal hearing in
Atlanta, Georgia. The notice charged that Meza is not a United
States citizen, that he entered the country “at or near
Brownsville, Texas,” and that he was “not then admitted or
paroled after inspection by an Immigration Officer.” App. 34.
In a supporting document, the INS stated that Meza had been
apprehended by an agent who observed him “wading the Rio
Grande River into the United States,” thus entering the country
“illegally at a point not designated by the U.S. Attorney
General.” Id. at 28–29; see also id. at 29 (agent recounting that
Meza “crossed into the U.S. by using a tire tube”).
An immigration judge ordered Meza removed in absentia.
The judge found that Meza was removable “as charged”
because documentary evidence “established the truth of the
factual allegations in the Notice to Appear.” App. 33. Meza
neither appeared at his removal hearing nor filed a timely
petition for review in the Eleventh Circuit. But he did remain
in the United States.
In 2017, Meza applied to USCIS for an adjustment of his
status. USCIS denied the application for lack of jurisdiction.
In its view, because Meza had been placed in a removal
proceeding and was not an arriving alien, the immigration
courts had exclusive jurisdiction over the application.
Meza challenged this decision in federal district court. He
argued that USCIS was required to review his application

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because he was an arriving alien. To support that claim, he
pointed to a checkbox on his notice to appear that labeled him
as such. He further alleged that immigration officers had
paroled him into the United States.
The district court held that it lacked jurisdiction to review
USCIS’s decision because Meza had not exhausted his
administrative remedies. Meza v. Cuccinelli, 438 F. Supp. 3d
25, 34–35 (D.D.C. 2020). We have jurisdiction over Meza’s
appeal under 28 U.S.C. § 1291.
II
We review de novo the legal question whether the district
court had jurisdiction. See Am. Hosp. Ass’n v. Azar, 895 F.3d
822, 825 (D.C. Cir. 2018). On de novo review, we generally
may affirm on any ground supported by the record. See, e.g.,
Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009). And
although we must decide jurisdictional questions before merits
ones, we may consider jurisdictional questions in any order that
we deem prudent. Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 584–85 (1999). The district court held that it lacked
jurisdiction because Meza had failed to exhaust administrative
remedies. We affirm on the alternative ground that section
1252 divested the court of jurisdiction.
Section 1252 establishes the scheme for judicial review of
final removal orders. Section 1252(a)(5) provides that a
petition for review, timely filed in the appropriate court of
appeals, is the “sole and exclusive means for judicial review of
an order of removal.” There is one exception, for certain
system-wide challenges to written rules governing expedited
removal, see 8 U.S.C. § 1252(e)(3), but it does not apply here.
Section 1252(b)(9) extends the exclusivity rule to questions
arising from any removal proceeding, then makes it a
jurisdictional bar. First, section 1252(b)(9) provides that

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“[j]udicial review of all questions of law and fact … arising
from any action taken or proceeding brought to remove an alien
from the United States under this subchapter shall be available
only in judicial review of a final order under this section.”
Then, it states that, except as provided in section 1252 itself,
“no court shall have jurisdiction … to review such an order or
such questions of law or fact.” The dispositive question here
is whether Meza seeks judicial review of a question “arising
from” his removal proceeding. We conclude that he does.
In our view, section 1252(b)(9) prevents an alien from re-
litigating, outside the context of a petition for review, a
question decided against him in the removal proceeding. In
ordinary usage, an issue decided in a proceeding arises from
the proceeding. See Arise, Black’s Law Dictionary (7th ed.
1999) (“To originate; stem (from)”). Moreover, section
1252(a)(5) covers “review of an order of removal,” while
section 1252(b)(9) separately covers review of “questions of
law and fact … arising from” removal proceedings. Given that
statutory structure, we must construe the latter phrase to extend
beyond the former. Meza’s only contention about the scope of
section 1252(b)(9)—that it applies only where an alien seeks to
set aside the removal order itself—is thus mistaken.
In the district court, Meza sought review of USCIS’s
decision refusing to consider his application for adjustment of
status. That decision was correct if Meza was placed in
removal proceedings and was not an arriving alien. See 8
C.F.R. §§ 245.2(a)(1), 1245.2(a)(1)(i). It is undisputed that
Meza was placed in removal proceedings in 2002, though he
was never removed. So the dispositive issue below was
whether Meza was an arriving alien. USCIS concluded that he
was not. And Meza, to obtain relief in the district court, had to
show that he was.

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The immigration judge decided this issue adversely to
Meza in his removal proceeding. As relevant here, an “arriving
alien” is “an applicant for admission coming or attempting to
come into the United States at a port-of-entry.” 8 C.F.R. § 1.2.
The immigration judge ordered Meza removed “on the charge
contained in the Notice to Appear,” App. 33, namely that Meza
was subject to removal under section 212(a)(6)(A)(i) of the
INA, App. 34. That provision applies to aliens who are
“present in the United States without being admitted or paroled,
or who arrive[] in the United States at any time or place other
than as designated by the Attorney General.” 8 U.S.C.
§ 1182(a)(6)(A)(i). An arriving alien is not “present in the
United States,” because, under longstanding principles of
immigration law, an alien arriving at a port of entry is “to be
regarded as stopped at the boundary line and kept there unless
and until h[is] right to enter should be declared.” Kaplan v.
Tod, 267 U.S. 228, 230 (1925); see also DHS v. Thuraissigiam,
140 S. Ct. 1959, 1982 (2020). Likewise, an arriving alien has
not arrived at an undesignated “time or place,” because ports
of entry are places designated for lawful entry. 8 C.F.R.
§ 235.1(a). Thus, by ordering Meza removed under section
1182(a)(6)(A)(i), the immigration judge necessarily decided
that Meza was not an arriving alien.
The factual allegations in the notice, and the evidence
supporting them, confirm this conclusion. The immigration
judge concluded that “documentary evidence … established
the truth of the factual allegations contained in the Notice to
Appear.” App. 33. The notice alleged that Meza “arrived in
the United States at or near Brownsville, Texas,” id. at 34,
rather than at a specific point of entry. And a supporting
document recounted that a border patrol officer had caught
Meza coming into the United States by using a tire tube to wade
across the Rio Grande—which, of course, is not a place
designated for lawful entry.

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Meza makes two arguments for why he is an arriving alien.
Both challenge the immigration judge’s determination that
Meza was not an arriving alien and was removable.
First, Meza argues that he was paroled into the United
States, and he invokes decisions holding that paroled aliens are
arriving aliens. See, e.g., Zheng v. Gonzales, 422 F.3d 98, 110–
11 (3d Cir. 2005). But the immigration judge ordered Meza
removed based on the charge and factual allegations in the
notice to appear, which repeatedly stated that Meza was neither
admitted nor paroled into the United States.
Second, Meza points to a checkbox on the notice to appear,
which labels him an arriving alien. But in ordering Meza
removed, the immigration judge necessarily concluded
otherwise, based on other portions of the notice and the
evidence before him. As to the notice itself, in the blank space
for factual allegations, the issuing officer wrote out that Meza
“arrived in the United States at or near Brownsville, Texas, on
or about April 23, 2002” and was “not then admitted or paroled
after inspection by an Immigration Officer.” App. 34.
Likewise, in the blank space for the formal charge, the officer
wrote out that Meza was subject to removal under section
“212(a)(6)(A)(i) of the Immigration and Nationality Act, as
amended,” because he was “an alien present in the United
States without being admitted or paroled, or who arrived in the
United States at any time or place other than as designated by
the Attorney General.” Id. To be sure, the officer also checked
the box next to the pre-written statement “[y]ou are an arriving
alien.” Id. To decide the removal question, the immigration
judge had to consider the elements of section 212(a)(6)(A)(i),
the entirety of the notice to appear, and the evidence about the
Rio Grande crossing. In doing so, and in finding Meza
removable despite the box-check, the immigration judge
necessarily treated it as a mistake.

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To succeed in this case, Meza must show that he was an
arriving alien, even though the immigration judge concluded
otherwise. Meza thus seeks to contest a question of fact arising
from his removal proceeding, which he could have done only
by filing a timely petition for review of his removal order in the
Eleventh Circuit. Under section 1252(b)(9), the district court
lacked jurisdiction to consider what is in effect a collateral
attack on findings made in his final removal order.2
Affirmed.
2 Given our disposition under section 1252(b)(9), we need not
address whether other provisions in section 1252 independently
barred judicial review in this case. We also need not address whether
the district court was correct to conclude that review in this case was
barred because Meza had failed to exhaust available administrative
remedies.

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