The Fifth Circuit’s recent decision in Sayegh v. Bondi, 25-20073 provides a useful illustration of how administrative finality operates under the Administrative Procedure Act (APA), particularly in regulatory schemes that involve multi-stage agency decision-making.  Although the case arises in the immigration context, the court’s analysis centers on familiar administrative law issues: when agency action is “final,” how statutory review schemes shape judicial involvement, and the limits of court oversight while agency processes remain ongoing.

The plaintiffs, two Venezuelan nationals, applied for affirmative asylum through U.S. Citizenship and Immigration Services while holding Temporary Protected Status (TPS).  USCIS denied their asylum applications on the merits and issued letters stating that the denials were not appealable and that, because of TPS, the cases would not be referred to immigration court.  The plaintiffs then sought review in federal district court under the APA, arguing that the denials constituted final agency action because no further administrative review was presently available.

The Fifth Circuit disagreed, grounding its analysis in the Supreme Court’s two-part test for final agency action set out in Bennett v. Spear, 520 U.S. 154 (1997). Under that framework, agency action is final only if it marks the consummation of the agency’s decision-making process and determines rights or obligations or produces legal consequences.  The court concluded that neither requirement was satisfied.

With respect to consummation, the court emphasized that asylum adjudication is structured as a single, integrated administrative process that spans multiple components of the executive branch.  USCIS’s role in affirmative asylum is an initial step rather than the endpoint of that process.  In the court’s view, final executive-branch resolution of asylum eligibility occurs only after review by an immigration judge and the Board of Immigration Appeals in removal proceedings.  The presence of TPS, which temporarily prevents removal, does not alter that structure; it merely delays the point at which later stages of the process are triggered.

The court also concluded that the USCIS denial letters did not determine legal rights or obligations.  The plaintiffs’ legal status remained unchanged: they continued to hold TPS, were lawfully present in the United States, and retained work authorization.  From the court’s perspective, the denials preserved the status quo rather than producing independent legal consequences.   And although asylum would have conferred additional benefits, the court viewed those benefits as deferred rather than definitively denied because defensive asylum remains available once removal proceedings begin.

A significant aspect of the decision is the Fifth Circuit’s treatment of finality as a jurisdictional requirement.  In the Fifth, the absence of final agency action deprives federal courts of subject-matter jurisdiction over APA claims.  As a result, dismissal must be without prejudice, and courts may not reach the merits of the agency’s reasoning.  That is different from the practice in other circuits where finality is treated as a merits issue.  See, e.g., Trudeau v. FTC, 456 F.3d 178, 184–85 (D.C. Cir. 2006) (holding that § 704 does not restrict the jurisdiction of federal courts); Sharkey v. Quarantillo, 541 F.3d 75, 87–91 (2d Cir. 2008) (discussing finality as a merits issue under the APA); Dhakal v. Sessions, 895 F.3d 532, 538–39 (7th Cir. 2018) (holding that lack of final agency action means the plaintiff “fails to state a claim” under the APA, not that the court lacks jurisdiction). Maybe a higher court should give us a final decision on how lower courts are supposed to evaluate final agency decisions?

Damonta D. Morgan is an attorney at Forman Watkins & Krutz LLP in Jackson, MS.