USCIS Denial of Affirmative Asylum to TPS Holders Is Not “Final Agency Action” Reviewable Under the APA; Finality Is Jurisdictional in the Fifth Circuit

Case: Sayegh de Kewayfati v. Bondi Court: United States Court of Appeals for the Fifth Circuit Date: January 14, 2026 Docket: Nos. 25-20073 & 25-20101 (consolidated)

New rule/holding crystallized: A USCIS denial letter on an affirmative-asylum application issued to an applicant who remains in Temporary Protected Status (TPS) is not “final agency action” under 5 U.S.C. § 704 because (1) it does not consummate the executive branch’s asylum decisionmaking (defensive asylum remains available later in removal proceedings), and (2) it does not determine legal rights or obligations or produce concrete legal consequences while TPS maintains the status quo. In the Fifth Circuit, the absence of final agency action is a jurisdictional defect requiring dismissal under Rule 12(b)(1) without prejudice.

Introduction

Two Venezuelan sisters—Maribel Sayegh de Kewayfati and Marlen Sayegh Agam de Maari—filed affirmative-asylum applications with U.S. Citizenship and Immigration Services (USCIS) in 2014. Years later, after interviews in January 2024 and litigation alleging agency delay, USCIS denied both applications on the merits. Each denial letter stated the decision was non-appealable within USCIS and, because each applicant held TPS, USCIS would not refer the case to an Immigration Judge (IJ) at that time.

The sisters pivoted from delay claims to Administrative Procedure Act (APA) merits review, asking federal district courts to vacate the denials as “arbitrary and capricious” and “contrary to law.” Separate district courts dismissed for lack of “final agency action.” The Fifth Circuit consolidated the appeals to resolve a single dispositive question: whether USCIS’s denial letters were reviewable “final agency action” under the APA given the applicants’ TPS posture.

Summary of the Opinion

Judge Willett’s opinion affirms both dismissals, holding that the USCIS denial letters are nonfinal and therefore not reviewable under the APA at this stage. Applying Bennett v. Spear, the court concludes:

No consummation of decisionmaking: the denial is an interim step in a larger asylum adjudicatory scheme that culminates, for judicial-review purposes, after removal proceedings and administrative appellate review by the Board of Immigration Appeals (BIA).
No legal consequences: because TPS preserves lawful presence and prevents immediate referral to removal proceedings, the denials keep the “status quo” and do not impose obligations or fix rights.

The court also resolves a procedural point of Fifth Circuit law: lack of final agency action deprives courts of subject-matter jurisdiction, making Rule 12(b)(1) the correct vehicle and requiring dismissal without prejudice. Accordingly, it modifies the one district-court judgment that dismissed “with prejudice” to a dismissal “without prejudice.”

Analysis

A. Precedents Cited

Finality framework (APA):

Bennett v. Spear: supplies the controlling two-prong test—(1) consummation of decisionmaking; (2) determination of rights/obligations or legal consequences.
Franklin v. Massachusetts and Abbott Labs. v. Gardner: emphasize that nonfinal action includes “tentative” decisions or “the ruling of a subordinate official,” reinforcing that courts review completed positions, not midstream steps.
Texas v. Becerra: Fifth Circuit citation reaffirming reliance on Bennett v. Spear.

Immigration-specific channeling of review and the TPS/asylum intersection:

Dhakal v. Sessions: central persuasive authority; holds that USCIS denial of affirmative asylum is nonfinal where further review may occur in defensive asylum during removal proceedings—even when delay results from lawful status. The Fifth Circuit adopts its logic and framing of the “single administrative process.”
Kashani v. Nelson: quoted (via Dhakal v. Sessions) for the value of the IJ/BIA process in building an “extensive factual record” and enabling error correction before judicial review.
McKart v. United States: classic exhaustion rationale—agencies should first apply expertise and correct errors.
Ramirez-Osorio v. I.N.S.: describes asylum in removal proceedings as a “defense,” supporting the court’s view that defensive asylum is an available future avenue.
Sanchez v. Mayorkas and Duarte v. Mayorkas: explain TPS’s role as a temporary “freeze” conferring lawful status and protection from removal but not creating a path to permanent residence; the court uses this characterization to show that denial letters do not fix rights or foreclose later asylum litigation.
Solorzano v. Mayorkas: addressed “lawful status” vs “lawful admission” for adjustment; the court distinguishes it as irrelevant to APA finality for asylum denials.

Enforcement discretion and limits on judicial intervention:

Heckler v. Chaney: underscores that non-enforcement/prosecutorial decisions are generally committed to agency discretion; used to answer the “limbo” concern (DHS may delay initiation of removal).
Duarte v. Mayorkas and Alvidres-Reyes v. Reno: cited regarding 8 U.S.C. § 1252(g) shielding discretionary immigration decisions from judicial intervention.

Fifth Circuit law: final agency action as jurisdictional; dismissal mechanics:

Elldakli v. Garland: key Fifth Circuit anchor; holds certain USCIS denials (adjustment-of-status) nonfinal because they can be revisited de novo in removal proceedings; also ties APA finality to jurisdiction in this circuit.
Peoples Nat'l Bank v. Off. of Comptroller of Currency of U.S. and Am. Airlines, Inc. v. Herman: cited for the proposition that APA jurisdiction depends on final agency action.
Cardoso v. Reno: reinforces exhaustion and statutory channeling (8 U.S.C. § 1252(d)) concepts in immigration review.
Abdullah v. Paxton, Warnock v. Pecos Cnty., Campos v. United States, and Carver v. Atwood: collectively support the remedial rule that jurisdictional dismissals must be without prejudice and cannot be “on the merits.”
In re Bonvillian Marine Serv., Inc. and Jacobs v. Nat'l Drug Intel. Ctr.: invoked for the Fifth Circuit “rule of orderliness,” rejecting policy-driven attempts to override precedent.

Separation-of-powers and immigration channeling:

Ardestani v. I.N.S.: notes Congress intended INA procedures to supplant the APA in immigration proceedings.
Dubey v. DHS: reinforces that an alien cannot use the APA to “transfer” asylum review to district court divorced from later removal review.
Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP (mem.) and Steel Co. v. Citizens for Better Environment: cited to emphasize jurisdiction as a “constitutional guardrail.”

B. Legal Reasoning

1. Statutory and regulatory structure: asylum and TPS as interacting tracks

The court begins with “scene-setting,” describing two protections in the Immigration and Nationality Act (INA): asylum (8 U.S.C. § 1158) and TPS (8 U.S.C. § 1254a). Asylum can be pursued:

Affirmatively with USCIS before removal proceedings; if denied, USCIS typically refers removable applicants to Immigration Court (8 C.F.R. § 208.14(c)(1)), but denies without referral for applicants in lawful status (8 C.F.R. § 208.14(c)(2)).
Defensively in removal proceedings before an IJ, with de novo consideration and appeal to the BIA (8 C.F.R. §§ 208.14(a), 1003.1(b), 1003.38(a)), culminating in court-of-appeals review only after that administrative process (8 U.S.C. § 1252(a)(5)).

TPS, by contrast, is a temporary, renewable removal shield for nationals of designated countries and confers lawful status and work authorization. Critically, TPS can delay the point at which an asylum denial is tested in removal proceedings because a TPS holder is not immediately removable.

2. Applying Bennett v. Spear prong one: no “consummation”

The sisters argued that because TPS blocks removal, USCIS’s denials are effectively the end of the line. The Fifth Circuit rejects that framing by re-characterizing the relevant “agency decisionmaking process” as the integrated asylum review scheme Congress created—one that culminates with IJ and BIA adjudication when asylum is raised defensively.

Borrowing heavily from Dhakal v. Sessions, the court treats a USCIS asylum officer’s denial as “a preliminary checkpoint” rather than the endpoint. The key move is to define “finality” in light of the “intended, complete administrative process,” not in light of the applicant’s immediate practical preference for judicial review.

The court’s analogous Fifth Circuit precedent, Elldakli v. Garland, reinforces the point: when an immigration determination can later be revisited de novo in removal proceedings, the earlier USCIS decision is not final.

The court also acknowledges the practical concern: the government may delay starting removal proceedings (creating “limbo”). But the court treats that as a feature of enforcement discretion protected from judicial review (citing Heckler v. Chaney and referencing 8 U.S.C. § 1252(g)).

3. Applying Bennett v. Spear prong two: no legal rights fixed and no legal consequences

Even if prong one were debatable, prong two is independently fatal. The court stresses that the denial letters did not alter the sisters’ legal status: they remained in TPS, with lawful presence and work authorization. Thus, the denials merely maintained the “status quo”—a formulation drawn directly from Dhakal v. Sessions and consistent with the finality concern described in Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City (quoted for requiring “actual, concrete injury”).

The sisters’ asserted harms—loss of derivative asylum benefits (path to permanent residence, family reunification)—were treated as delayed, not foreclosed, because defensive asylum remains available after TPS ends or if they relinquish TPS. Delay, without present legal consequence, is not enough to satisfy Bennett v. Spear’s second prong.

The court also rejects reliance on the USCIS “Affirmative Asylum Procedures Manual.” Even if it uses the phrase “Final Denial letter,” the manual cannot expand jurisdiction or displace the APA’s finality requirement, and it is nonbinding guidance lacking the force of law (citing Apter v. DHHS and Walmart Inc. v. DOJ).

4. Jurisdictional consequence in the Fifth Circuit: Rule 12(b)(1), not 12(b)(6)

After finding no final agency action, the court addresses the procedural split below: one district court dismissed under Rule 12(b)(1) (without prejudice), the other under Rule 12(b)(6) (with prejudice). The Fifth Circuit holds that, in this circuit, final agency action is a jurisdictional prerequisite for APA claims (citing Elldakli v. Garland, Peoples Nat'l Bank v. Off. of Comptroller of Currency of U.S., and Am. Airlines, Inc. v. Herman), even if other circuits treat finality as merits-based (citing Dhakal v. Sessions, Jama v. DHS, and Trudeau v. FTC).

Because jurisdiction was lacking, the “with prejudice” dismissal was improper. The court modifies it to “without prejudice,” relying on Fifth Circuit authority that a court without jurisdiction cannot enter a merits judgment (citing Campos v. United States and related cases).

C. Impact

Closes a district-court APA pathway for TPS holders challenging affirmative-asylum denials. Applicants with lawful status (especially TPS) cannot treat USCIS denials as immediately reviewable final agency action simply because USCIS does not issue a Notice to Appear.
Reinforces “channeling” of asylum review into the removal system. The opinion aligns with the INA’s structure: IJ first, then BIA, then court of appeals—not district court merits review midstream (echoing Ardestani v. I.N.S. and Dubey v. DHS).
Entrenches Fifth Circuit doctrine that finality is jurisdictional in APA cases. Litigants must anticipate Rule 12(b)(1) treatment and the remedy of dismissal without prejudice, even where other circuits might approach finality as a Rule 12(b)(6) element.
Practical consequence: prolonged “limbo” is not judicially fixable under the APA. The court acknowledges the possibility of delayed removal initiation, but treats it as unreviewable enforcement discretion; any policy correction is positioned as legislative.
Strategic effect for applicants: TPS holders seeking a faster adjudicatory endpoint may face a hard choice—wait for TPS to end (or for DHS to initiate proceedings) or relinquish TPS to trigger removal proceedings and raise asylum defensively.

Complex Concepts Simplified

“Final agency action” (APA): Courts can generally review only agency actions that are (1) the agency’s last word on the matter and (2) have real legal effects now (change status, impose duties, take away rights). Here, the court says USCIS’s letter is not the government’s last word because asylum can be litigated later in removal proceedings, and the letter changes nothing while TPS continues.
Affirmative vs. defensive asylum: “Affirmative” is filed with USCIS when you are not in removal proceedings. “Defensive” is raised before an Immigration Judge as a defense when the government is trying to remove you; it is considered de novo and can be appealed to the BIA.
TPS “freezes” status: TPS is a temporary shield from removal and grants lawful presence and work authorization, but it does not itself provide a route to permanent residence. It can also delay when an applicant gets to present asylum defensively in Immigration Court.
Jurisdiction vs merits: If a court lacks “jurisdiction,” it lacks power to decide the case at all. The Fifth Circuit treats APA finality as jurisdictional, so the only proper outcome is dismissal without prejudice (allowing refiling later if/when finality exists).
Enforcement discretion: The government often has wide latitude to decide whether and when to start removal proceedings. Courts usually cannot force that timing, and the opinion treats the “limbo” problem as a product of that discretion.

Conclusion

Sayegh de Kewayfati v. Bondi cements a clear Fifth Circuit rule for TPS recipients (and, more broadly, lawful-status applicants) confronting USCIS denials of affirmative asylum: such denials are not final agency action under 5 U.S.C. § 704 because they neither complete the executive branch’s asylum decisionmaking nor impose present legal consequences while TPS preserves lawful status. The decision also reinforces circuit doctrine that finality is jurisdictional, requiring Rule 12(b)(1) dismissal without prejudice.

The broader significance is structural: the court prioritizes Congress’s channeling of asylum adjudication into the removal system (IJ → BIA → court of appeals), resisting attempts to convert district courts into early-review forums for interim immigration determinations—especially where the operative “harm” is delay rather than a present legal change.