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.

In a 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.

Subsequent to the filing of briefs in the appeal, the current Secretary of Homeland Security announced the end of TPS for citizens of Nepal, effective June 24, 2019.