PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SANG Y. LEE,
Plaintiff-Appellant,
v.
No. 08-1659
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:07-cv-00141-CCB)
Argued: October 27, 2009
Decided: January 25, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and
AGEE, Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Niemeyer and Judge Agee joined.
COUNSEL
ARGUED: Ivan Yacub, Falls Church, Virginia, for Appel-
lant. Jason Daniel Medinger, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
2 LEE v. USCIS
ON BRIEF: Rod J. Rosenstein, United States Attorney, Bal-
timore, Maryland, for Appellee.
OPINION
TRAXLER, Chief Judge:
Sang Lee, a Korean national, entered the United States in
July 2000 as a visitor with permission to remain until January
21, 2001. Lee overstayed his visa and remains in the United
States despite his failure to maintain lawful nonimmigrant sta-
tus.
In May 2003, Lee applied under the Immigration and
Nationality Act ("INA") to adjust his status and become a per-
manent resident based on his employment with the Korean
Broadcasting Network ("KBN"). See 8 U.S.C. § 1255(a).
Ordinarily, the failure to maintain continuous lawful status by
overstaying a visa renders a prospective immigrant ineligible
for an adjustment of status. See 8 U.S.C. § 1255(c)(2)
(excluding aliens who were "in unlawful immigration status
on the date of filing the application for adjustment of status
or who . . . failed . . . to maintain continuously a lawful status
since entry into the United States"). Nevertheless, Lee
claimed that he could still apply for adjusted status by virtue
of 8 U.S.C. § 1255(i), a provision that permitted otherwise
ineligible aliens to apply for an adjustment of status. This pro-
vision expired on April 30, 2001, except for "grandfathered
aliens." See 8 C.F.R. § 245.10(b); Ogundipe v. Mukasey, 541
F.3d 257, 259 (4th Cir. 2008).
The District Director for the United States Citizenship &
Immigration Services ("USCIS" or "the Service") denied
Lee’s application, concluding that he did not qualify as a
"grandfathered" alien under 8 C.F.R. § 245.10(j) and thus was
precluded from filing for an adjustment of status. Lee did not
LEE v. USCIS 3
appeal the District Director’s denial to the Board of Immigra-
tion Appeals ("BIA") because, despite Lee’s unlawful immi-
gration status, the Service has yet to place him in removal
proceedings. Instead, after the Director denied his application
to adjust status, Lee filed this action under the Administrative
Procedure Act ("APA") challenging the validity of 8 C.F.R.
§ 245.10(j). The district court determined that it lacked juris-
diction and dismissed Lee’s action. For the reasons discussed
below, we affirm.
I.
A. Grandfathering under Section 1255(i)
To better understand both the procedural history of Lee’s
case and the arguments he raises here, it is helpful to review
briefly the adjustment-of-status process as it relates to
§ 1255(i) and its grandfathering clause.
Prior to 1952, obtaining immigrant status was possible only
through the issuance of an immigrant visa by a United States
consular office abroad. See Choe v. INS, 11 F.3d 925, 928
(9th Cir. 1993); Landin-Molina v. Holder, 580 F.3d 913, 916
(9th Cir. 2009) (explaining that under this practice "an alien
already inside this country could acquire immigrant status
only by temporarily leaving the United States to secure an
appropriate visa"). In 1952, Congress established an
adjustment-of-status process, codified in 8 U.S.C. § 1255(a),
affording aliens who entered as nonimmigrants a means of
becoming permanent residents without having to depart the
United States and apply for an immigrant visa from a consular
office abroad. See 8 U.S.C. § 1255(a); INS v. Bagamasbad,
429 U.S. 24, 25 n.* (1976) (per curiam) (explaining that the
adjustment-of-status provision was enacted so that "aliens
would not inevitably be required to leave the country and
apply to a United States consul in order to obtain permanent-
resident status").
4 LEE v. USCIS
Generally speaking, Congress has limited the use of the
adjustment-of-status mechanism to lawfully present aliens in
order "to discourage intending immigrants from moving to the
United States before becoming fully eligible for permanent
residence and to encourage them to follow the orderly con-
sular process for the issuance of immigrant visas." In re
Briones, 24 I. & N. Dec. 355, 359 (BIA 2007); see Landin-
Molina, 580 F.3d at 916 (observing that "this process benefit-
ted only those aliens who were in the United States law-
fully"). For our purposes, these lawful-presence restrictions
are codified in § 1255(c).
In 1994, Congress enacted § 1255(i), temporarily lifting
§ 1255(c)’s restrictions on certain aliens seeking adjustment
of status. Under the version originally enacted by Congress,
an alien who was eligible to receive an immediately
available immigrant visa, but who would be pre-
cluded from adjustment of status under [§ 1255(a)]
for having entered without inspection or for one of
the reasons enumerated in [§ 1255(c)], was permitted
to adjust status upon payment of a surcharge along
with an application for adjustment under [§ 1255(i)].
In re Wang, 23 I. & N. Dec. 924, 927 (BIA 2006). Because
this measure was intended to be temporary, it contained a sun-
set provision requiring that a § 1255(i) application for adjust-
ment of status be filed between October 1, 1994, and October
1, 1997. See 1995 Appropriations Act, Pub. L. No. 103-317,
§ 506(b), (c), 108 Stat. 1724, 1765-66 (effective Oct. 1,
1994); In re Briones, 24 I. & N. Dec. at 360.
After the expiration of § 1255(i) under the 1994 Act, Con-
gress added a grandfather clause to allow the continued use of
§ 1255(i) by aliens who were beneficiaries of either a visa
petition or a labor certification filed on or before January 14,
1998. See In re Wang, 23 I. & N. Dec. at 927 (explaining that
the grandfather provision "shift[ed] the focus of the filing
LEE v. USCIS 5
requirements from the date the application for adjustment of
status was filed to the date on which the underlying visa peti-
tion or application for a labor certification was filed"); 1998
Appropriations Act, Pub. L. No. 105-119, § 111(b), 111 Stat.
2440, 2458 (1997).
In 2000, Congress extended the expiration date for
§ 1255(i) adjustment applications to April 30, 2001, see 2001
Appropriations Act, Pub. L. 106-554, § 1502(a)(1)(B), 114
Stat. 2763,1 the cutoff date incorporated into the current ver-
sion of § 1255(i):
(1) Notwithstanding the provisions of subsections (a)
and (c) of this section, an alien physically present in
the United States—
(A) who—
(i) entered the United States without
inspection; or
(ii) is within one of the classes enumer-
ated in subsection (c) of this section;
(B) who is the beneficiary . . . of—
(i) [an immigrant visa petition] that was
filed with the Attorney General on or
before April 30, 2001; or
1
Congress also added a physical presence requirement—if the visa peti-
tion or labor certification was filed after January 14, 1998, the alien must
have been physically present in the United States on the December 21,
2000, date that the amendments were enacted. See 8 U.S.C.
§ 1255(i)(1)(c). Aliens seeking to apply for adjustment of status under
§ 1255(i) are still required to pay a fine in addition to the standard process-
ing fees associated with a § 1255(a) application. See 8 U.S.C. § 1255(i)(1);
8 C.F.R. § 245.10(c).
6 LEE v. USCIS
(ii) an application for a labor certification
. . . that was filed pursuant to the regula-
tions of the Secretary of Labor on or before
such date;
...
may apply to the Attorney General for the adjust-
ment of his or her status to that of an alien lawfully
admitted for permanent residence.
8 U.S.C. § 1255(i)(1). Thus, after the 2000 amendments,
§ 1255(i) effectively forgives a period of illegal stay for any
alien who is the beneficiary of a labor certification application
or an immigrant visa petition filed on or before April 30,
2001. See Figueras v. Holder, 574 F.3d 434, 436 (7th Cir.
2009) ("[A]djustment under 8 U.S.C. § 1255(i) . . . waives
any period of illegal stay in the United States if a visa petition
was filed on behalf of the petitioner on or before April 30,
2001. . . ."). The term "grandfathered alien" appears in the
implementing regulations, not the statutory text. The regula-
tions use this term as a type of shorthand for an alien who is
the beneficiary of an application for labor certification or a
petition for an immigrant visa that was filed on or before
April 30, 2001. See 8 C.F.R. § 245.10(a)(1)(i).
B. Adjustment of Status under Section 1255(i)
The fact that an alien is grandfathered for § 1255(i) pur-
poses does not mean he is a fortiori eligible for an adjustment
of status; it means only that he is "entitled to apply for adjust-
ment of status." Ahmed v. Gonzales, 465 F.3d 806, 808 (7th
Cir. 2006) (emphasis omitted). Under § 1255(i), a grandfa-
thered alien must make essentially the same eligibility show-
ing required in any application under § 1255(a) for adjustment
of status: (1) that "the alien is eligible to receive an immigrant
visa and is admissible to the United States for permanent resi-
dence," and (2) that "an immigrant visa is immediately avail-
LEE v. USCIS 7
able to the alien at the time the [§ 1255(i)] application is
filed." 8 U.S.C. § 1255(i)(2); see Ahmed v. Gonzales, 447
F.3d 433, 438 (5th Cir. 2006) ("Section 1255(i) does not . . .
create an automatic or a mandatory exception to § 1255(c)" in
view of the fact that "the entire application for adjustment of
status must meet with the discretionary approval of the Attor-
ney General or his designee.").
Aliens who seek to adjust their status based on employ-
ment, as Lee does, are thus required to demonstrate that they
are eligible for an employment-based visa and that an
employment-based visa is immediately available. See Lendo
v. Gonzales, 493 F.3d 439, 442 (4th Cir. 2007). To do so
requires the prospective immigrant to find a job with an
employer willing to sponsor him through the time-consuming
application process for labor certification and issuance of an
immigrant visa. The prospective employer first must apply on
behalf of the alien to the Department of Labor ("DOL") for a
Labor Certification. See 8 U.S.C. § 1153(b)(3)(C); see also
United States v. Ryan-Webster, 353 F.3d 353, 355 (4th Cir.
2003). The DOL’s issuance of a Labor Certification indicates
that the DOL is satisfied that "(1) sufficient United States
workers are not able, willing, qualified, and available for a
particular job; and (2) employment of a particular alien will
not adversely effect the wages and working conditions of
United States workers similarly employed." Ryan–Webster,
353 F.3d at 356; see 8 U.S.C. § 1182(a)(5)(A)(i). With a valid
Labor Certification in hand, the prospective employer then
submits a petition (technically speaking, a Form I-140 Immi-
grant Visa Petition for Alien Worker) to the USCIS for an
immigrant work visa. See Lendo, 493 F.3d at 441; see 8
U.S.C. § 1153(b). At that point, the alien, assuming he quali-
fies for grandfathered status, can apply to adjust his status by
filing a Form I-485. See 8 U.S.C. § 1255(i); 8 C.F.R.
§ 204.5(n).2
2
If the Service grants the application to adjust status, then the alien is
issued a "Green Card" reflecting his right to live and work in the United
States permanently (assuming he does nothing to cause his removal). See
Lendo, 493 F.3d at 442; Ryan–Webster, 353 F.3d at 356.
8 LEE v. USCIS
Finally, even after a grandfathered alien has established eli-
gibility for adjustment of status, the decision is ultimately a
discretionary one for the Attorney General, acting through his
designee. See 8 U.S.C. § 1255(i)(2) ("[T]he Attorney General
may adjust the status of the alien to that of an alien lawfully
admitted for permanent residence if [the statutory eligibility
requirements are satisfied]." (emphasis added)); Higuit v.
Gonzales, 433 F.3d 417, 419 (4th Cir. 2006). Thus, even after
an alien establishes grandfathered status under § 1255(i), he
faces "a two-step process, involving, first, proof of [his] statu-
tory eligibility for the adjustment, and second, an exercise of
discretion by the Attorney General as to whether to grant such
relief." Singh v. Gonzales, 468 F.3d 135, 138 (2d Cir. 2006)
(internal quotation marks omitted).
II.
In 2003, Lee found a willing sponsor in KBN, which
offered him employment as a graphic designer. Before offer-
ing the job to Lee, KBN had already obtained an approved
Labor Certification on behalf of another individual. Origi-
nally, KBN had planned for Eun Kun Lee, who is unrelated
to Sang Lee, to fill the graphic design position. In January
2001, KBN filed an application on behalf of Eun Kun Lee for
a Labor Certification on the graphic design position. Soon
thereafter, the DOL issued the Labor Certification as
requested, but Eun Kun ended up not working for KBN as
anticipated.
When KBN offered the position to Sang Lee in 2003, it
requested permission from the DOL to use the previously-
approved Labor Certification for Sang Lee even though he
was not the named beneficiary. Under the labor regulations
then in effect, a sponsoring employer was permitted to substi-
tute a different prospective worker than the one originally
named on the Labor Certification. See 20 C.F.R.
§ 656.30(c)(2) (2003). In accordance with this practice, the
LEE v. USCIS 9
DOL permitted KBN to use the existing Labor Certification
for the benefit of Sang Lee.3
Based on this substituted Labor Certification, KBN peti-
tioned the USCIS on behalf of Sang Lee for a work visa. Lee
simultaneously petitioned for adjustment of status under
§ 1255(i), claiming eligibility under the grandfathering provi-
sion as "the beneficiary of an application for labor certifica-
tion filed on or after January 15, 1998, and on or before April
30, 2001." J.A. 61. In November 2003, the USCIS granted
KBN’s visa petition on behalf of Lee.
In early 2004, however, while Lee’s petition for adjustment
of status was still pending, Lee left KBN and began working
as a graphic designer for a different Korean news outlet in
Washington, D.C. In response, KBN withdrew the visa peti-
tion it had filed on Lee’s behalf, resulting in the automatic
revocation of USCIS’s approval of KBN’s immigrant visa
petition. See 8 C.F.R. § 205.1(a)(3)(iii)(c). The revocation
then resulted in the USCIS’s denial of Lee’s application for
adjustment of status because a visa was no longer immedi-
ately available for Sang Lee. See 8 C.F.R. § 245.2(a)(2)(i); 8
U.S.C. § 1255(i)(2)(B). Thus, the USCIS ruled that, "[a]bsent
evidence that [Lee is] entitled to any other immigrant classifi-
cation, [Lee’s] application must be, and hereby is denied."
J.A. 86.
Through new legal counsel, Lee filed a motion for recon-
sideration, arguing that he was still eligible for adjustment of
status under the portability provisions of the American Com-
petitiveness in the Twenty First Century Act of 2002, Pub. L.
106-313. Under the Act,
3
The Secretary of Labor stopped the practice of Labor Certification sub-
stitution in 2007. See 72 Fed. Reg. 27904, 27944 (May 17, 2007); 20
C.F.R. § 656.11(a) (2009). The new rule, however, does not affect substi-
tutions approved by the DOL before the effective date of July 16, 2007.
10 LEE v. USCIS
an approved immigration petition will remain valid
for the purpose of an application for adjustment of
status when the alien changes jobs if two conditions
are met: (1) the adjustment of status application has
remained unadjudicated for more than 180 days; and
(2) the alien’s new employment is the same or simi-
lar to the job for which the visa petition was
approved.
Sung v. Keisler, 505 F.3d 372, 374 (5th Cir. 2007); see 8
U.S.C. § 1154(j).4 Because Lee’s application had been pend-
ing for at least 180 days and his current employment was
identical to his job at KBN, Lee contended that the visa peti-
tion filed on his behalf should not have been revoked and that
he was eligible for adjustment of status based on his current
employment.
After initially denying the motion to reconsider as
untimely, the Director reopened Lee’s case because the
USCIS failed to issue the Notice of Intent to Deny required
"in cases involving revoked employment-based visa petitions"
where the "application for adjustment of status was pending
for 180 days or more." J.A. 104. Since the Service did not
issue the Notice of Intent to Deny, Lee was not afforded the
opportunity to submit proof of his similar employment under
the portability provision. Thus, the Director concluded the
original denial of Lee’s application under § 1255(i) was erro-
neous.
4
An alien may lose his eligibility for § 1255 status adjustment
while awaiting the adjustment if, inter alia, the alien is no longer
employed by the employer who submitted the approved visa peti-
tion. However, noting the substantial time necessary for process-
ing adjustment of status applications, Congress enacted § 204(j)
of the Immigration and Naturalization Act, 8 U.S.C.A. § 1154(j)-
the portability statute.
Sung v. Keisler, 505 F.3d 372, 374 (5th Cir. 2007).
LEE v. USCIS 11
Despite reopening the case, the Director nevertheless con-
cluded that Lee failed to qualify for grandfathered status
under § 1255(i) because he was not the beneficiary originally
named in the Labor Certification. The Director noted that
although the Labor Certification was filed before the April 30,
2001, cutoff date, it "was not filed on [Lee’s] behalf," but "on
behalf of another individual, Eun Kun Lee," J.A. 107, a dis-
qualifying fact under the regulations:
Only the alien who was the beneficiary of the
application for the labor certification on or before
April 30, 2001, will be considered to have been
grandfathered for purposes of filing an application
for adjustment of status under [§ 1255(i)]. An alien
who was previously the beneficiary of the applica-
tion for the labor certification but was subsequently
replaced by another alien on or before April 30,
2001, will not be considered to be a grandfathered
alien. An alien who was substituted for the previous
beneficiary of the application for the labor certifica-
tion after April 30, 2001, will not be considered to
be a grandfathered alien.
8 C.F.R. § 245.10(j) (emphasis added).
Lee sought no further administrative review. The regula-
tions do not provide for an internal appeal from a USCIS
decision denying an application for adjustment of status; the
alien can obtain further review only by renewing the applica-
tion during removal proceedings, whereupon the Immigration
Judge and the Board of Immigration Appeals will consider it.
See 8 C.F.R. § 245.2(a)(5)(ii).
Having not yet been placed in removal proceedings, Lee
filed this action in federal district court under the APA, see 5
U.S.C. §§ 701-706, challenging the USCIS’s denial of his
application for adjustment of status. Lee argued that the pro-
mulgation of 8 C.F.R. § 245.10(j) was an ultra vires exercise
12 LEE v. USCIS
of USCIS’s authority to implement § 1255(i) because the reg-
ulation improperly narrowed the scope of "beneficiary" within
the meaning of the statute.
The district court granted USCIS’s motion to dismiss for
lack of jurisdiction. Pursuant to the judicial review provisions
of the Immigration and Nationality Act ("INA"), see 8 U.S.C.
§ 1252(a)(2)(B) and (D), the district court concluded that any
legal challenge to a USCIS denial of adjustment of status
must be brought via petition for review in the court of
appeals, not in district court. The district court found it lacked
jurisdiction because Lee did not follow this procedural course:
"Lee’s proper recourse, therefore, is to exhaust the applicable
administrative review mechanism by proceeding from USCIS
to the BIA and then directly to the circuit court of appeals."
J.A. 160.
III.
Lee argues that the district court had jurisdiction to con-
sider his claim under the APA, which provides that "[a] per-
son suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof." 5 U.S.C. § 702. The APA "is not a jurisdiction-
conferring statute." Trudeau v. FTC, 456 F.3d 178, 183 (D.C.
Cir. 2006). Rather, the jurisdictional source for an action
under the APA is the "federal question" statute, which grants
the district court "original jurisdiction of all civil actions aris-
ing under the Constitution, laws, or treaties of the United
States," see 28 U.S.C. § 1331, and thereby "confer[s] jurisdic-
tion on federal courts to review agency action." Califano v.
Sanders, 430 U.S. 99, 105 (1977). The judicial review provi-
sions of the APA, see 5 U.S.C. §§ 701-706, simply provide "a
limited cause of action for parties adversely affected by
agency action." Trudeau, 456 F.3d at 185; see Bowen v. Mas-
sachusetts, 487 U.S. 879, 891 n.16 (1988) ("[I]t is common
ground that if review is proper under the APA, the District
LEE v. USCIS 13
Court ha[s] jurisdiction under 28 U.S.C. § 1331."). In his
APA action, Lee claims that he was adversely affected by the
District Director’s application of 8 C.F.R. § 245.10(j), an
invalid regulation, to deny him adjustment of status under
§ 1255(i).
Although the APA embodies a "basic presumption of judi-
cial review" of final agency action, Lincoln v. Vigil, 508 U.S.
182, 190 (1993) (internal quotation marks omitted), its judi-
cial review provisions do not apply where "statutes preclude
judicial review." 5 U.S.C. § 701(a)(1); see Wade v. Blue, 369
F.3d 407, 411 n.2 (4th Cir. 2004) ("[A] specific limitation of
federal court jurisdiction . . . overrides the general grant of
federal jurisdiction in § 1331.") Thus, the first issue we must
address is whether the INA precludes review of Lee’s claim
under the APA.
The INA specifically closes the door to judicial review of
certain discretionary agency decisions, including the denial of
an application for adjustment of status:
Notwithstanding any other provision of law (statu-
tory or nonstatutory), . . . except as provided in sub-
paragraph (D), and regardless of whether the
judgment, decision, or action is made in removal
proceedings, no court shall have jurisdiction to
review—
(i) any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or
1255 of this title, or
(ii) any other decision . . . specified under this
subchapter to be in the discretion of the Attorney
General or the Secretary of Homeland Security,
other than the granting of relief under section
1158(a) of this title.
14 LEE v. USCIS
8 U.S.C. § 1252(a)(2)(B) (emphasis added).
Congress expressly included decisions to deny relief under
§ 1255 within this jurisdiction-limiting provision; therefore,
the denial of an application for adjustment of status under
§ 1255(i) is not amenable to judicial review. See 8 U.S.C.
§ 1252(a)(2)(B); see also Higuit, 433 F.3d at 419. And,
although § 1252 generally addresses judicial review with
regard to final orders of removal, the language "regardless of
whether the judgment, decision, or action is made in removal
proceedings" makes clear that the jurisdictional limitations
imposed by § 1252(a)(2)(B) also apply to review of agency
decisions made outside of the removal context. See, e.g.,
Mejia Rodriguez v. United States Dep’t of Homeland Sec.,
562 F.3d 1137, 1142 n.13 (11th Cir. 2009) (per curiam); Jilin
Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196, 199 n.5
(3d Cir. 2006). Thus, the fact that Lee is not and has never
been in removal proceedings does not render § 1252(a)(2)(B)
inapplicable.
The claim raised in Lee’s APA action falls squarely within
the scope of § 1252(a)(2)(B)(i). Although Lee’s claim in his
amended complaint is carefully worded to avoid expressly
challenging the denial of his application for adjustment of sta-
tus, that is clearly what Lee seeks to do. Lee’s complaint is
that the District Director made a faulty eligibility determina-
tion under § 1255(i); that determination was the sole basis for
the denial of Lee’s application and cannot be divorced from
the denial itself.
We also find Lee’s argument unavailing to the extent he
characterizes his claim as raising a pure question of law sub-
ject to review under § 1252(a)(2)(D). This provision, which
was added through the REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231, provides:
Nothing in subparagraph (B) or (C), or in any other
provision of this Act (other than this section) which
LEE v. USCIS 15
limits or eliminates judicial review, shall be con-
strued as precluding review of constitutional claims
or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accor-
dance with this section.
8 U.S.C. § 1252(a)(2)(D) (emphasis added). Congress made
explicit that despite the jurisdiction-stripping language of
§ 1252(a)(2)(B), "courts of appeal [retain] a narrowly circum-
scribed jurisdiction to resolve constitutional claims or ques-
tions of law raised by aliens seeking discretionary relief."
Higuit, 433 F.3d at 419.
Even if we assume Lee’s challenge raises a reviewable
question of law, § 1252(a)(2)(D) does not give Lee a jurisdic-
tional bootstrap into district court. The express language of
the statute requires Lee to raise any constitutional or legal
questions "upon a petition for review filed with an appropriate
court of appeals." 8 U.S.C. § 1252(a)(2)(D). To the extent
Congress decided to permit judicial review of a constitutional
or legal issue bearing upon the denial of adjustment of status,
it intended for the issue to be raised to the court of appeals
during removal proceedings. See Hassan v. Chertoff, 543
F.3d 564, 566 (9th Cir. 2008) (per curiam) ("Although 8
U.S.C. § 1252(a)(2)(D) preserves jurisdiction over ‘constitu-
tional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accor-
dance with this section,’ that provision is inapplicable here.
Hassan’s challenge to the denial of adjustment was not raised
upon a petition for review filed with this court; his case comes
to us on direct appeal from the district court."). Unlike sub-
section (B), § 1252(a)(2)(D), by its express terms, applies
only in the context of removal proceedings. See e.g., Abdelw-
ahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009) ("First,
§ 1252(a)(2)(D) applies only to questions of law ‘raised upon
a petition for review filed with an appropriate court of
appeals.’ Thus, it does not grant jurisdiction to review ques-
tions of law in district court cases."); Hamilton v. Gonzales,
16 LEE v. USCIS
485 F.3d 564, 567 n.5 (10th Cir. 2007); Jilin Pharmaceutical,
447 F.3d at 206 n.16; El-Khader v. Monica, 366 F.3d 562,
567-68 (7th Cir. 2004). We agree with the Tenth Circuit that
this provision "is naturally read as a limitation on the broad
jurisdiction stripping provisions found in §§ 1252(a)(2)(B)
and (C)." Hamilton, 485 F.3d at 567. It does not purport to
"confer an expanded grant of jurisdiction but merely confir-
m[s] our authority to review ‘constitutional claims and ques-
tions of law,’ but only after a final order of removal has been
entered." Id. at 567.5
Like a number of our sister circuits, we therefore conclude
that the district court did not have jurisdiction to entertain
Lee’s challenge to the District Director’s eligibility determi-
nation and subsequent denial of adjustment of status. See
Abdelwahab, 578 F.3d at 820-21; Hassan, 543 F.3d at 566;
McBrearty v. Perryman, 212 F.3d 985, 987 (7th Cir. 2000);
cf. Hamilton, 485 F.3d at 567. But see Pinho v. Gonzales, 432
F.3d 193, 200-04 (3d Cir. 2005). The statute specifically pro-
vides that the exclusive means of judicial review of a legal
issue related to the denial of an adjustment of status is by a
petition for review to the court of appeals.
IV.
For the foregoing reasons, we affirm the decision of the
district court.6
AFFIRMED
5
Lee claims that, in cases like his, our interpretation leads to unjust
results. Because the Agency controls when or even if Lee will be placed
in removal proceedings, Lee argues that he is effectively in a state of
"limbo" and cannot seek judicial review. Our task, however, is only to
determine the meaning of the statute as passed by Congress, not to ques-
tion the wisdom of the provision enacted. See Sigmon Coal Co. v. Apfel,
226 F.3d 291, 308 (4th Cir. 2000), aff’d sub nom., Barnhart v. Sigmon
Coal Co., 534 U.S. 438 (2002).
6
In view of our conclusion that § 1252(a)(2)(B)(i) precludes the district
court’s jurisdiction, we need not address the USCIS’s exhaustion argu-
ment. See El-Khader v. Monica, 366 F.3d 562, 569 n.9 (7th Cir. 2004).