USCIS Denial of Affirmative Asylum for TPS Beneficiaries Is Not “Final Agency Action” Under the APA; Review Must Await Removal Proceedings

Case: Maribel Sayegh de Kewayfati v. Pamela Bondi, et al. (consolidated with Marlen Sayegh Agam de Maari v. Kristi Noem, et al.)
Court: United States Court of Appeals for the Fifth Circuit
Date: January 14, 2026
Panel: Barksdale, Willett, Duncan (Willett, J., opinion; Barksdale, J., concurs in judgment only)

1. Introduction

This consolidated appeal arose from two Venezuelan sisters’ attempt to obtain immediate federal-court review of USCIS denials of their long-pending affirmative-asylum applications. The plaintiffs—Maribel Sayegh de Kewayfati and Marlen Sayegh Agam de Maari—filed affirmative-asylum applications in 2014 and later received TPS under Venezuela’s designation. After USCIS delays, they sued federal officials (including the U.S. Attorney General, DHS leadership, USCIS leadership, and the Houston Asylum Office Director) alleging inaction and unlawful delay. USCIS then issued notices of intent to deny and ultimately denial letters concluding the sisters had not shown a reasonable possibility of persecution if returned to Venezuela.

The key problem, procedurally, was that because the sisters had TPS (lawful status with protection from removal), USCIS did not refer their denied asylum applications to removal proceedings at that time. The denial letters also stated there was no administrative appeal of the denials. The sisters amended their lawsuits to seek APA relief—vacatur and declarations that the denials were arbitrary and capricious and contrary to law—arguing they had no adequate alternative remedy because TPS prevented them from “renewing” asylum defensively.

Two district courts dismissed for lack of “final agency action,” though using different procedural rules (one under Rule 12(b)(1) without prejudice; the other under Rule 12(b)(6) with prejudice). The Fifth Circuit affirmed both dismissals and modified the “with prejudice” dismissal to be “without prejudice,” holding that the USCIS denials were nonfinal and thus outside APA review at this stage.

2. Summary of the Opinion

The Fifth Circuit held that USCIS’s denials of the sisters’ affirmative-asylum applications were not “final agency action” under the APA. Applying Bennett v. Spear’s two-part test, the court concluded: (1) the denials did not consummate the Executive Branch’s asylum decisionmaking because asylum can still be pursued defensively in later removal proceedings; and (2) the denials did not determine rights or obligations or trigger legal consequences because TPS preserved the status quo—lawful presence and protection from removal remained intact, and asylum benefits were merely delayed, not definitively foreclosed.

The court further held that, in the Fifth Circuit, the absence of final agency action is jurisdictional, making Rule 12(b)(1) the correct dismissal vehicle and requiring dismissal without prejudice. Accordingly, it affirmed both dismissals and modified the one entered “with prejudice” to “without prejudice.”

3. Analysis

3.1 Precedents Cited (and How They Drove the Result)

A. The APA “final agency action” framework

• Bennett v. Spear: The court used Bennett’s two conditions for finality—(i) consummation of the agency’s decisionmaking process and (ii) determination of rights/obligations or legal consequences. This test was dispositive and structured the opinion.
• Franklin v. Massachusetts and Abbott Labs. v. Gardner: These cases supplied the “subordinate official/tentative” concept. The Fifth Circuit characterized the USCIS denial at the affirmative stage as nonfinal in the broader, integrated asylum scheme—akin to a tentative or subordinate step rather than a definitive governmental position.
• Texas v. Becerra: Cited as recent Fifth Circuit reliance on Bennett, reinforcing that the court treats Bennett as the controlling articulation of finality.
• Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City: Quoted for the proposition that finality turns on a “definitive position” that inflicts “actual, concrete injury.” The court used it to emphasize that “delay of benefits” and maintenance of the status quo under TPS is not the kind of concrete legal injury that makes agency action final.
• Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic (via Bennett): Used to anchor the “legal consequences” inquiry under Bennett’s second prong.

B. The key immigration-law analogue and the Seventh Circuit’s blueprint

• Dhakal v. Sessions: The Fifth Circuit treated Dhakal as squarely on point: an APA suit challenging a USCIS denial of asylum where further review would occur only in later removal proceedings. Dhakal supplied the conceptual frame—affirmative denial is a “preliminary checkpoint,” the “executive branch simply has not completed its review,” and the status quo remains in place until the consolidated administrative process culminates (ultimately with BIA review).
• Elldakli v. Garland: This Fifth Circuit decision (adjustment-of-status context) was the court’s in-circuit analogue: USCIS denials are not final where de novo review remains available in later removal proceedings. Elldakli also supplied the Fifth Circuit’s important doctrinal move: the court treats finality as jurisdictional (not merely merits-based), directly controlling the procedural disposition here.
• Dubey v. DHS (Seventh Circuit): Cited to reinforce the channeling principle: the APA cannot be used to “transfer review” of asylum determinations to district court and separate it from the eventual review scheme tied to a (future) removal order.

C. The structure of asylum/TPS, enforcement discretion, and channeling review

• Ramirez-Osorio v. I.N.S.: Used to underscore that asylum in removal proceedings is a “defense” and can be asserted without first pursuing affirmative asylum—supporting the court’s view that defensive asylum remains the intended mechanism for full adjudication when removal is at issue.
• Kashani v. Nelson and McKart v. United States: Invoked for exhaustion rationales—agencies should have the first chance to develop facts, apply expertise, and correct errors before judicial review.
• Heckler v. Chaney: Supported the court’s refusal to treat the government’s discretionary timing of removal proceedings as judicially reviewable; the “limbo” concern is a byproduct of nonenforcement discretion typically committed to the agency.
• Duarte v. Mayorkas and Sanchez v. Mayorkas: These cases supplied the description of TPS as a temporary protection that “freezes an alien’s position within the immigration system” and is not a pathway to permanent status, reinforcing the court’s view that TPS delays (but does not eliminate) the normal review channel.
• Biden v. Texas, Duarte v. Mayorkas, and Alvidres-Reyes v. Reno: Used to emphasize immigration enforcement discretion and the protective scope of 8 U.S.C. § 1252(g) over decisions about whether/when to commence proceedings.
• Ardestani v. I.N.S.: Cited for the principle that the INA is designed to supplant the APA in immigration proceedings; the court used this to reinforce the “constitutional guardrail” notion and the idea that APA review must respect the INA’s channeling structure.
• Moosa v. I.N.S. and Bright v. Parra: Supported judicial restraint in the face of policy objections to Congress’s immigration design (the court repeatedly stressed: policy fixes belong to Congress, not courts).

D. The court’s handling of “TPS adjustment” cases and nonbinding guidance

• Solorzano v. Mayorkas and Sanchez v. Mayorkas: The sisters invoked these to suggest TPS confers certain “lawful” effects relevant to remedies; the Fifth Circuit distinguished them as dealing with adjustment-of-status questions (and “distinct concepts”), not asylum finality or APA review.
• Apter v. DHHS and Walmart Inc. v. DOJ: Cited to reject the plaintiffs’ reliance on the USCIS Affirmative Asylum Procedures Manual. Internal guidance “lacks the force of law,” cannot create enforceable rights, and cannot expand federal jurisdiction or override the APA’s finality requirement.

E. Jurisdiction, exhaustion, and the dismissal posture

• Am. Airlines, Inc. v. Herman and Peoples Nat'l Bank v. Off. of Comptroller of Currency of U.S.: Reinforced the Fifth Circuit’s line that APA review depends on final agency action (supporting the jurisdictional framing).
• Cardoso v. Reno and Petrenko-Gunter v. Upchurch: Used to connect the exhaustion/channeling principle in immigration to the unavailability of premature judicial review.
• Jama v. DHS and Trudeau v. FTC: Cited as contrary approaches in other circuits (treating finality as merits), which the Fifth Circuit acknowledged but declined to follow due to its own precedent.
• Abdullah v. Paxton and Warnock v. Pecos Cnty., plus Carver v. Atwood and Campos v. United States: These cases supported the remedial point that jurisdictional dismissals must be without prejudice; a court lacking jurisdiction cannot render a merits-preclusive judgment.
• In re Bonvillian Marine Serv., Inc. and Jacobs v. Nat'l Drug Intel. Ctr.: Cited for the Fifth Circuit “rule of orderliness,” used to reject invitations to revisit circuit doctrine based on policy critiques.

F. Appellate-jurisdiction housekeeping and affirm-on-any-ground principles

• Catlin v. United States and Picco v. Glob. Marine Drilling Co.: Used to confirm finality of the district court orders for appellate jurisdiction under 28 U.S.C. § 1291 despite the absence of separate judgments.
• Hammervold v. Blank and Bender v. Williamsport Area Sch. Dist.: Supported the court’s ability/obligation to address jurisdiction and to affirm on any ground supported by the record.
• Morrison v. Nat'l Austl. Bank Ltd.: Used to justify modifying the judgment label (with/without prejudice) without remand where nothing substantive turns on the labeling error.
• Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP (Thomas, J., dissent from denial), and Steel Co. v. Citizens for Better Environment: Cited to underscore that statutory-jurisdiction limits implicate separation-of-powers concerns, framing finality as a “constitutional guardrail.”

3.2 Legal Reasoning

The court’s reasoning proceeded in three linked moves: (1) defining the integrated asylum review scheme Congress created, (2) applying Bennett’s finality prongs to that scheme for TPS beneficiaries, and (3) translating the finality conclusion into the correct procedural disposition (jurisdictional dismissal without prejudice).

A. The asylum/TPS architecture matters to “finality”

The opinion emphasized that affirmative asylum through USCIS is only one entry point. Congress and the regulations also permit defensive asylum in removal proceedings, where an Immigration Judge considers the claim de novo with appeal to the BIA, and only then can a federal court of appeals review. This channeling arrangement is the backdrop for finality: “final” does not mean “nonappealable at the current step,” but rather “the end of the intended administrative process.”

B. Bennett prong one: no consummation of the Executive’s asylum decisionmaking

The sisters argued that because TPS blocks referral to removal proceedings, the USCIS denial functionally ends the process. The court rejected that framing: the executive branch has not “completed its review” because defensive asylum remains available once removal proceedings occur. TPS “freezes” posture; it does not reengineer the system into a one-step, district-court-reviewable final determination.

The court identified practical routes to reach the ordinary channel: the applicant may withdraw from TPS (removing the barrier to removal proceedings) or wait for TPS designation/eligibility to end (given the statutory requirement of periodic review). The court treated any resulting delay as a feature of enforcement discretion and statutory design, not a basis to reclassify a preliminary determination as final.

C. Bennett prong two: no rights/obligations determined and no legal consequences

The denial letters did not change the sisters’ legal status: they remained in TPS, authorized to stay and work and protected from removal. The court treated the lost immediacy of asylum’s derivative benefits (permanent residence pathway, derivative family benefits, certainty) as a postponement rather than a fixed deprivation. Because the denial did not impose obligations, remove legal protections, or foreclose future assertion of asylum, the court found no “actual, concrete injury” and thus no finality.

D. The procedural holding: finality as jurisdiction in the Fifth Circuit

The court acknowledged that some circuits treat finality as a merits element (citing Dhakal v. Sessions, Jama v. DHS, and Trudeau v. FTC), but reaffirmed that Fifth Circuit precedent treats absence of final agency action as a jurisdictional bar. That doctrinal choice drove the remedy: dismissal must be under Rule 12(b)(1) and without prejudice, and any dismissal “with prejudice” must be modified.

3.3 Impact

A. Practical impact on TPS holders who sought affirmative asylum

The decision effectively closes district-court APA suits challenging USCIS affirmative-asylum denials where the applicant remains in TPS and therefore has not yet entered removal proceedings. TPS recipients must ordinarily await the removal-proceeding posture to obtain full administrative adjudication (IJ/BIA) and judicial review through the INA’s channeling scheme.

B. Reinforcement of channeling and “anti-interlocutory” review in immigration

The opinion strengthens the principle that immigration adjudication is designed as a unified pipeline culminating in BIA review and then a petition for review—discouraging “midstream” federal-court litigation that would segment asylum issues from future removal review. It aligns the Fifth Circuit with the Seventh Circuit’s functional approach in Dhakal v. Sessions, even while preserving the Fifth Circuit’s distinct jurisdictional framing.

C. Litigation strategy effects

• APA posture: Plaintiffs will face dismissal unless they can identify a truly final agency action (or a statute making the action reviewable) rather than an interim USCIS step.
• Record-building: The decision pushes claim development toward removal proceedings, where factual records are more extensive and adjudicators have specialized expertise.
• Procedural clarity: Within the Fifth Circuit, defendants will likely press Rule 12(b)(1) (not 12(b)(6)) when final agency action is lacking; plaintiffs should anticipate “without prejudice” outcomes.

4. Complex Concepts Simplified

• Affirmative vs. defensive asylum: “Affirmative” asylum is filed with USCIS when the applicant is not in removal proceedings. “Defensive” asylum is raised as a defense once the government places the person in removal proceedings before an Immigration Judge.
• Temporary Protected Status (TPS): A temporary, renewable protection for nationals of designated countries. TPS generally prevents removal and authorizes work, but it is not (by itself) a direct route to permanent residence or citizenship.
• Final agency action (APA): Courts can typically review only agency actions that (1) finish the agency’s decisionmaking and (2) impose legal consequences (change legal status, create obligations, or otherwise concretely affect rights).
• “Nonappealable” does not mean “final”: Even if there is no internal appeal from a USCIS step, the overall immigration system may still provide later review (here, de novo review in removal proceedings).
• Jurisdiction vs. merits: In the Fifth Circuit, if there is no final agency action, the federal court lacks subject-matter jurisdiction—so the case must be dismissed without prejudice (not a merits loss).

5. Conclusion

The Fifth Circuit held that USCIS denials of affirmative asylum to TPS beneficiaries are interlocutory within an integrated immigration adjudication system, not “final agency action” under the APA. Because the denials neither consummate the Executive’s asylum decisionmaking nor impose concrete legal consequences while TPS maintains lawful status, federal district courts cannot review them midstream. The decision reinforces Congress’s channeling of asylum review through removal proceedings (IJ/BIA) and confirms that, in the Fifth Circuit, lack of final agency action is jurisdictional—requiring dismissal without prejudice.