Benjamin Slappendel v. Lorne Miller ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2551
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Benjamin Slappendel; Katherine Amerson
lllllllllllllllllllllPlaintiffs - Appellants
v.
Lorne Miller, Associate Director, Nebraska Service Center; John/Jane Doe,
Adjudicator; Merrick B. Garland, Attorney General; Alejandro Mayorkas, Acting
Secretary of Homeland Security; Tracy Renaud, Director, U.S. Citizenship and
Immigration Services
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 23, 2022
Filed: November 30, 2022
[Unpublished]
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Before LOKEN, MELLOY, and STRAS, Circuit Judges.
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PER CURIAM.
Benjamin Slappendel and his wife appeal the dismissal of their lawsuit
seeking to reverse the denial of his application for an immigrant visa. See Al-
Saadoon v. Barr, 973 F.3d 794, 800 (8th Cir. 2020) (reviewing the grant of a motion
to dismiss de novo). The district court 1 dismissed for lack of subject-matter
jurisdiction because “decision[s] . . . to grant or deny a[n] [immigration] waiver” are
unreviewable in these circumstances. See 8 U.S.C. § 1182(a)(2)(A)(i)(I), (h); see
also 8 U.S.C. § 1252(a)(2)(B)(i) (“[N]o court shall have jurisdiction to review . . .
any judgment regarding the granting of relief under section 1182(h).”). We affirm
the district court’s reasoning but modify the dismissal to be without prejudice. See
County of Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir. 2004) (“A district
court is generally barred from dismissing a case with prejudice if it concludes
subject[-]matter jurisdiction is absent.”).
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1
The Honorable Robert F. Rossiter, Jr., then United States District Judge for
the District of Nebraska, now Chief Judge.
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