May 22, 2018
from the United States District Court for the Western
District of Wisconsin. No. 3:17-cv-00010-jdp - James D.
Peterson, Chief Judge.
Flaum and Ripple, Circuit Judges, and Gettleman, District
Ripple, Circuit Judge.
Dhakal, a native and citizen of Nepal, brought this action
against the Attorney General and other executive branch
defendants under the Administrative Procedures Act
("APA"), 5 U.S.C. § 701 et seq., and
the Declaratory Judgment Act, 28 U.S.C. §§
2201-2202. He asked the district court to review the decision
of the Director of the Chicago Asylum Office, denying his
application for asylum. The defendants moved to dismiss for
lack of jurisdiction. They contended that Mr. Dhakal had not
exhausted his administrative remedies and that the agency
action is not final because the immigration courts have not
yet passed upon his claim in removal proceedings. Mr. Dhakal
remains in lawful status in the United States; he has not
been placed in removal proceedings and is therefore unable to
access the ordinary channel for further intra-agency review
of his asylum application. In his view, because he has
exhausted all administrative remedies presently available to
him, his claim is ripe, and he can seek review in the
district court concluded that it lacked jurisdiction over his
claim. Although we conclude that there is no jurisdictional
bar, we agree with the Government that the decision Mr.
Dha-kal challenges is not a final agency action and,
therefore, he is not entitled to relief under the APA. The
statutory scheme for adjudication of asylum claims by the
agency must be allowed to take its course. We therefore
affirm the district court's judgment dismissing the case,
but modify it to reflect that it is on the merits.
to his asylum application, Mr. Dhakal and his family were
members of the Nepali Congress, a political party that he
describes as supporting nationalism, democracy, socialism,
and nonviolence. From the mid-1990s through late 2006, the
Maoist party emerged and began targeting its opposition,
including the Nepali Congress. In 2006, the parties signed a
Comprehensive Peace Accord, but, without a mechanism for
enforcement, the accord did not deter the Maoists. They
created a Young Communist League and began to take more
aggressive actions. Mr. Dhakal continued his opposition work,
including working with the United States Agency for
International Development and other international
organizations for peace.
2012, he received a letter from the Maoists on official
letterhead. The letter instructed him to cease his
activities. A few weeks later, four men stopped him as he was
riding home on his motorbike. They verbally abused him and
told him that the Maoist party had sent them to break his
leg. They hit him with a bamboo cane and smashed his
motorbike; they also told him that if he did not cease his
opposition work, "next time, he will be
finished." A forest ranger discovered Mr. Dhakal and
transported him to the hospital. A local newspaper reported
the attack. Despite this incident, Mr. Dhakal continued his
activities, and in April 2013, he received another letter
threatening him and his family.
2013, the University of Rhode Island invited Mr. Dhakal to
participate in a course in nonviolent conflict resolution
because of his "impressive record of accomplishments and
activism." He accepted the invitation, which included
a scholarship and travel expenses, and traveled to the United
States in June 2013.
he left Nepal, Maoists went to his home and threatened his
wife, who subsequently fled to her parents' home with
their children. Mr. Dhakal determined that he could not
return to Nepal and therefore applied for asylum in the
United States in August 2013, two months after his entry.
April 2015, while Mr. Dhakal's asylum application
remained pending, Nepal suffered a 7.8 magnitude earthquake.
Based on the resulting conditions, the Secretary of Homeland
Security designated Nepal for Temporary Protected Status
("TPS") for eighteen months. Under that
designation, eligible nationals of Nepal residing in the
United States as of that date would not be removed from the
United States and could receive employment authorization for
the duration of the TPS designation. Mr. Dhakal applied for,
and received, TPS. The Department of Homeland Security twice
extended the designation, and Mr. Dhakal has remained in
lawful status since his original application for TPS was
granted. He eventually moved to Brookfield, Wisconsin, where
he now manages a gas station.
2016, after Mr. Dhakal received TPS, the asylum office of
United States Citizenship and Immigration Services
interviewed him in connection with his application for
asylum. In August, the Director of the Chicago Asylum Office
issued a Notice of Intent to Deny the
application. Principally, the asylum officer found that
Mr. Dhakal was not credible based on internal inconsistencies
and a lack of detail in his responses. The officer also
concluded that the two threatening letters and one beating
did not rise to the level of past persecution and that Mr.
Dhakal had not shown a reasonable possibility of future
persecution. Mr. Dhakal submitted a rebuttal, but DHS was not
persuaded. In September 2016, the Director issued a final
denial. The final denial letter informed Mr. Dhakal that
"[b]ecause you are maintaining valid … temporary
protected (TPS) status, your asylum application will not be
referred to an immigration judge for adjudication in removal
proceedings before the U.S. Department of Justice, Executive
Office for Immigration Review."
January 2017, Mr. Dhakal brought this action in the United
States District Court for the Western District of Wisconsin,
seeking a declaratory judgment that the Director's denial
of his asylum claim was contrary to law. The Government moved
to dismiss for lack of subject matter jurisdiction and for
failure to state a claim, contending that Mr. Dhakal could
not proceed in federal court without first exhausting his
administrative remedies. After briefing by the parties, the
district court granted the Government's motion.
brief opinion, the court held that Mr. Dhakal's suit was
barred by Kashani v. Nelson, 793 F.2d 818 (7th Cir.
1986). There, we dismissed a claim brought by an alien who
also challenged an initial denial of his asylum application.
We held that he was required to pursue administrative
remedies. The district court acknowledged that Mr. Dhakal had
no further remedies available to him at the time of his
action because the Department of Homeland Security had not
placed him in removal proceedings and those proceedings were
the sole means within the executive branch for review of an
adverse asylum decision. The court was sympathetic to Mr.
Dhakal's circumstances and further noted that a later
case, Iddir v. INS, 301 F.3d 492, 498 (7th Cir.
2002), could be read to undermine Kashani's
holding. It nevertheless concluded that Kashani
still appeared to govern. Mr. Dhakal unsuccessfully moved for
reconsideration and now appeals.
to the filing of briefs in the appeal, the current Secretary
of Homeland Security announced the end of TPS for ...