Case: 19-12254 Date Filed: 03/05/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-12254 Non-Argument Calendar ________________________ D.C. Docket No. 1:18-cv-20557-DPG YADINA RUBI, Plaintiff - Appellant, versus SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY (DHS) YESEIRA DIAZ, Miami Field Office Director, U.S. Citizenship and Immigration Services (USCIS), Defendants - Appellees. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (March 5, 2020) Case: 19-12254 Date Filed: 03/05/2020 Page: 2 of 8 Before JORDAN, JILL PRYOR and NEWSOM, Circuit Judges. PER CURIAM: Yadina Rubi appeals the district court’s dismissal for failure to state a claim of her complaint filed pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701. The district court concluded that, under the plain language of 8 U.S.C. § 1255(c)(2), Rubi was ineligible for an adjustment of immigration status because she failed to continuously maintain lawful status in the United States. See 8 U.S.C. § 1255(c)(2). Rubi disagrees, arguing that adjustment of her immigration status was not foreclosed because she maintained lawful immigration status since her return to the United States under advance parole. After careful consideration, we affirm the district court’s dismissal. Rubi is a native and citizen of Honduras. She initially entered the United States on a B-2 nonimmigrant visa; she remained beyond the end of her authorized stay. More than four years later, Rubi’s employer filed an I-140 visa petition on Rubi’s behalf with the United States Citizenship and Immigration Services (“USCIS”). See id. §§ 1151(d), 1255(a); 8 C.F.R. § 245.2(a)(2). USCIS approved the petition. About 18 months afterward, Rubi left the United States under a grant 2 Case: 19-12254 Date Filed: 03/05/2020 Page: 3 of 8 of pre-approved advance parole,1 returning eight days later. See 8 U.S.C. § 1182(d)(5); 8 C.F.R § 212.5(f) While her parole status was still valid, Rubi filed an I-485 application for adjustment of her immigration status from a nonimmigrant to that of a lawful permanent resident. See 8 U.S.C. § 1255(a). Section 1255(a) provides that an immigrant who “was inspected and admitted or paroled into the United States” may have her status adjusted by the Attorney General, “in his discretion and under such regulations as he may prescribe.” Id. A nonimmigrant must satisfy three requirements before she is eligible for adjustment: she must (1) “make[] an application for such adjustment,” (2) be “eligible to receive an immigrant visa and [] admissible to the United States for permanent residence,” and (3) have an immigrant visa “immediately available” when her application is filed. Id. USCIS conceded that Rubi met all three requirements. But it deemed her ineligible for adjustment of immigration status because she failed to maintain lawful immigration status since her entry into the United States, thus implicating § 1225(c), which provides that adjustment of immigration status is not available to 1 Advance parole is “a mechanism by which a district director can, ...
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