Sayegh de Kewayfati v. Bondi
Split Score
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Case Summary
Disposition
Affirmed
The Fifth Circuit held that USCIS’s denials of two Venezuelan sisters’ affirmative-asylum applications were not "final agency action" under the Administrative Procedure Act because the asylum claims can still be raised defensively in future removal proceedings. Consequently, the court affirmed both district courts’ dismissals for lack of subject-matter jurisdiction and modified one dismissal to be without prejudice.
Circuit Split Identified
Legal Issue
Whether the APA’s “final agency action” requirement is jurisdictional (depriving courts of subject-matter jurisdiction) or instead goes only to the merits of an APA claim.
Circuit Positions
Lack of final agency action is a jurisdictional defect; courts must dismiss under Rule 12(b)(1).
Lack of final agency action goes to the merits, not jurisdiction; dismissal is under Rule 12(b)(6).
Conflict Summary
The Fifth Circuit treats the absence of final agency action as a jurisdictional bar, requiring dismissal under Rule 12(b)(1), whereas the Seventh, Sixth, and D.C. Circuits treat finality as a merits element evaluated under Rule 12(b)(6) and do not regard it as limiting subject-matter jurisdiction.