Case: 18-20341 Document: 00515013200 Page: 1 Date Filed: 06/27/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-20341 FILED June 27, 2019 Lyle W. Cayce OSCAR ERNESTO MELENDEZ, Clerk Plaintiff - Appellant v. KEVIN K. MCALEENAN, ACTING SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY; LEE CISSNA, United States Citizenship and Immigration Services Director; MARK SIEGL, Field Office Director, Defendants - Appellees Appeal from the United States District Court for the Southern District of Texas Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges. LESLIE H. SOUTHWICK, Circuit Judge: Oscar Ernesto Melendez filed suit seeking a declaratory judgment that the Department of Homeland Security had improperly denied his application to adjust his status to that of a legal permanent resident. The district court dismissed his complaint for lack of jurisdiction. The government now concedes there was jurisdiction but urges we deny relief. Though there is jurisdiction, Melendez benefits little because we also conclude he did not state a legally cognizable claim. The district court’s ruling is VACATED, and the complaint is DISMISSED. Case: 18-20341 Document: 00515013200 Page: 2 Date Filed: 06/27/2019 No. 18-20341 FACTS AND PROCEDURAL HISTORY Melendez, a native and citizen of El Salvador, entered the United States in February 2000 on a one-month nonimmigrant visitor visa. Melendez did not leave the United States after one month or at any later time either. In March 2001, the Attorney General designated El Salvador for Temporary Protected Status (“TPS”). As long as El Salvador is so designated, the special status for Melendez continues. See United States v. Orellana, 405 F.3d 360, 366 (5th Cir. 2005). Melendez filed for TPS in August 2001 and had it granted, but the record does not show the date of its grant. From the expiration of his visa in March 2000 to the award of TPS sometime in late 2001, Melendez was an alien unlawfully present in the United States. We do not have the documentation, but Melendez states (and the government does not dispute) that he has an approved I-130 Petition for Alien Relative filed by his United States citizen brother, and that his visa priority date is in 2003. In July 2016, Melendez filed a Form I-485 with the United States Citizenship and Immigration Services (“USCIS”) seeking adjustment of his status to that of a lawful permanent resident and stated that an immigrant visa was immediately available. See 8 U.S.C. § 1255(a). USCIS denied his application in September 2017. It determined he could not adjust his status because from the date his visitor visa expired, March 2000, until his filing for TPS, August 2001, Melendez was not lawfully present in the United States. In November 2017, Melendez filed suit in the United States District Court for the Southern District of Texas against the Secretary of the Department of Homeland Security (“DHS”) and two individuals in their official capacities with USCIS. To be clear, this suit does not concern Melendez’s imminent removal from the United States. He seeks ...
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