FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BELEN CABACCANG; ISIDRO
CABACCANG,
Plaintiffs-Appellants,
v.
UNITED STATES CITIZENSHIP AND No. 09-56089
IMMIGRATION SERVICES; DAVID
D.C. No.
ROARK, Director of CIS Texas
Service Center; ALEJANDRO 2:07-cv-00574-
MAYORKAS, Director of CIS; JANET DDP-E
NAPOLITANO, Secretary of the OPINION
United States Department of
Homeland Security; ERIC H.
HOLDER JR., Attorney General of
the United States,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
November 5, 2010—Pasadena, California
Filed December 29, 2010
Before: Mary M. Schroeder, Richard C. Tallman and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Tallman
20731
CABACCANG v. USCIS 20733
COUNSEL
Daniel P. Hanlon, Hanlon Law Group, Pasadena, California,
for the plaintiffs-appellants.
Gisela A. Westwater, District Court Section, Office of Immi-
gration Litigation, U.S. Department of Justice, Washington,
DC, for the defendants-appellees.
OPINION
TALLMAN, Circuit Judge:
We must decide whether a district court may hear an alien’s
challenge to the government’s denial of an application to
adjust status when removal proceedings are simultaneously
pending against the alien. We hold it may not. Because the
alien plaintiffs here are currently in removal proceedings, we
vacate the district court’s order granting summary judgment
to the defendants and remand with instructions to dismiss the
action for lack of jurisdiction.
20734 CABACCANG v. USCIS
I
Plaintiffs-Appellants Isidro and Belen Cabaccang, husband
and wife and citizens of the Philippines, entered the United
States with B-2 nonimmigrant tourist visas on July 17, 2004.
They were admitted for a period of six months. Five months
later, the Cabaccangs each filed a Form I-485 Application for
Adjustment of Status. The Cabaccangs based their applica-
tions on a Form I-140 Petition for Alien Worker filed by Isi-
dro’s employer, Alhambra Hospital Medical Center, to
classify him as a skilled worker in the position of registered
nurse. Isidro sought status adjustment as the primary benefi-
ciary of the hospital’s I-140 petition, while Belen sought
derivative adjustment as Isidro’s dependent spouse. United
States Citizenship and Immigration Services (USCIS) denied
the Cabaccangs’ applications because Isidro had not provided
certain required documentation.
On January 16, 2005, during the pendency of their applica-
tions to adjust status, the Cabaccangs’ six-month tourist visas
expired. Almost thirteen months after the visas expired, the
Cabaccangs filed a second set of applications for adjustment
of status, which underlie this action. Similar to their first
applications, the Cabaccangs based their second applications
on an I-140 petition filed by Alhambra Hospital, this time on
behalf of Belen, while Isidro sought to adjust his status
derivatively. USCIS denied the Cabaccangs’ second applica-
tions because the Cabaccangs had not provided “substantial
evidence to show legal presence or maintenance of status.”
The Cabaccangs filed motions to reconsider. USCIS
responded that the Cabaccangs’ lawful nonimmigrant status
had expired on January 16, 2005, when their tourist visas ran
out. See 8 C.F.R. §§ 214.1(c)(2), 248.1(b). Accordingly,
USCIS reasoned, the Cabaccangs did not qualify for status
adjustment under two separate subsections of 8 U.S.C.
§ 1255(k). First, the Cabaccangs did not have lawful status at
the time of their second applications. See 8 U.S.C.
CABACCANG v. USCIS 20735
§ 1255(k)(1). Second, they had failed to continuously main-
tain lawful status for a period exceeding 180 days, beginning
January 16, 2005. See id. § 1255(k)(2)(A). USCIS dismissed
their motions to reconsider on January 3, 2007.
Just twenty-one days later, before the Department of
Homeland Security (DHS) initiated removal proceedings, the
Cabaccangs filed this action in Los Angeles district court
seeking declaratory, injunctive, and mandamus relief. The dis-
trict court granted the Cabaccangs’ application for a tempo-
rary restraining order, directing USCIS to reopen and
reconsider their applications for adjustment of status. USCIS
complied, reopening the Cabaccangs’ applications and issuing
temporary work-authorization cards in the meantime. As a
result, the district court dismissed the Cabaccangs’ original
complaint as no longer ripe.
USCIS again denied the Cabaccangs’ reopened applica-
tions. The Notice of Decision stated, “The Service has deter-
mined that the original basis for the denial of your application
is still valid and the denial is reaffirmed.” Four days later, on
May 22, 2008, the DHS initiated removal proceedings against
Belen via a Notice to Appear. This notice turned out to be
defective, forcing the DHS to issue a new notice in April
2009. On June 25, 2008, the DHS also initiated removal pro-
ceedings against Isidro via a Notice to Appear.
Shortly thereafter, the district court reopened this action as
again ripe. The Cabaccangs filed an amended complaint on
July 30, 2008, alleging that USCIS’s denial of their second
applications resulted from an arbitrary and capricious inter-
pretation of the terms “lawful admission” and “lawful status”
in § 1255(k), thereby violating the Administrative Procedure
Act (APA).1 See 5 U.S.C. § 706(2)(A). The parties filed cross-
motions for summary judgment on whether USCIS’s interpre-
tation of § 1255(k) was arbitrary and capricious. The defen-
1
The Cabaccangs do not challenge the denial of their first applications.
20736 CABACCANG v. USCIS
dants also filed a motion to dismiss, arguing the district court
lacked subject matter jurisdiction. In relevant part, the defen-
dants claimed the initiation of removal proceedings rendered
USCIS’s denial of status adjustment nonfinal and meant the
Cabaccangs had not exhausted their administrative remedies,
thus precluding review by the district court.
On June 15, 2009, the district court denied the motion to
dismiss, finding it had jurisdiction but noting “mixed jurispru-
dence” on the issue. Meanwhile, the district court granted the
defendants’ cross-motion for summary judgment, concluding
USCIS’s interpretation of § 1255(k) was not arbitrary or
capricious under the APA. The Cabaccangs now appeal that
ruling.
II
Before we may reach the Cabaccangs’ substantive APA
claim, we must determine whether the district court properly
concluded it had jurisdiction over this action. Under the APA,
agency action is subject to judicial review only when it is
either: (1) made reviewable by statute; or (2) a “final” action
“for which there is no other adequate remedy in a court.” 5
U.S.C. § 704. No statute authorizes judicial review over deni-
als of status adjustment, so the sole issue here is whether
USCIS’s denial of the Cabaccangs’ applications was a “final”
agency action for which there was no other adequate remedy.
[1] The imposition of an obligation or the fixing of a legal
relationship is the indicium of finality in the administrative
process. Mount Adams Veneer Co. v. United States, 896 F.2d
339, 343 (9th Cir. 1990). Here, this indicium is lacking. Dur-
ing their pending removal proceedings, the Cabaccangs have
the right to renew their applications to adjust status. See 8
C.F.R. §§ 245.2(a)(5)(ii), (c), 1245.2(a). They will have the
opportunity to fully develop their arguments before the immi-
gration judge (IJ). The IJ then has unfettered authority to
modify or reverse USCIS’s denial of the Cabaccangs’ applica-
CABACCANG v. USCIS 20737
tions, regardless of USCIS’s prior determination. See 8 C.F.R.
§§ 1240.1(a)(1)(ii), 1245.2(a)(1)(i) (granting “exclusive juris-
diction” over the issue to the IJ once removal proceedings are
initiated). Thus, USCIS’s denial of the Cabaccangs’ applica-
tions is not yet a final agency action because of the Cabac-
cangs’ right to renew their applications before the IJ.
Endorsing a similar view, we have previously held that a
motion for reconsideration, an appeal to a superior agency
authority, or an intra-agency appeal to an administrative law
judge (ALJ) all render an agency decision nonfinal. Acura of
Bellevue v. Reich, 90 F.3d 1403, 1407-08 (9th Cir. 1996). The
Cabaccangs attempt to distinguish Acura, arguing their pend-
ing removal proceedings are neither an appeal to a superior
agency authority nor an intra-agency appeal to an ALJ. As the
Cabaccangs correctly note, removal proceedings are handled
by the Executive Office for Immigration Review, a Depart-
ment of Justice agency, whereas their applications to adjust
status were denied by USCIS, a DHS agency. The Cabac-
cangs argue they have no review whatsoever within USCIS or
the DHS itself,2 rendering Acura inapposite.
[2] This argument is unconvincing. We see no reason why
a hypothetical appeal to USCIS (or the DHS) would render
nonfinal the denial of an application to adjust status, while the
immediate pendency of removal proceedings would not. In
Acura, we explained that an intra-agency appeal to an ALJ
makes agency action nonfinal because the ALJ has “de novo
review of the [agency]’s decision.” Id. at 1408. Through this
standard of review, the ALJ may “affirm, deny, reverse, or
modify” the agency action in whole or in part. Id. at 1406
(internal quotation omitted). The situation here is no different.
As described above, the IJ in the Cabaccangs’ ongoing
removal proceedings has de novo review over USCIS’s denial
2
The Cabaccangs are correct to this extent, as denials of status adjust-
ment are not administratively reviewable outside of removal proceedings.
8 C.F.R. § 245.2(a)(5)(ii).
20738 CABACCANG v. USCIS
of their applications. See 8 C.F.R. §§ 1240.1(a)(1)(ii),
1245.2(a)(1)(i). It is immaterial that this further review takes
place in a different agency within a different executive depart-
ment. Like the situations described in Acura, the crucial con-
sideration here is that the IJ may completely wipe away
USCIS’s prior decision. Consequently, USCIS’s denial of
their applications is not yet final, and the district court lacked
jurisdiction under the APA. See 5 U.S.C. § 704.
[3] Similarly, the pendency of removal proceedings means
the Cabaccangs have not exhausted their administrative reme-
dies. See Reiter v. Cooper, 507 U.S. 258, 269 (1993). “Where
relief is available from an administrative agency, the plaintiff
is ordinarily required to pursue that avenue of redress before
proceeding to the courts; and until that recourse is exhausted,
suit is premature and must be dismissed.” Id. This rule allows
agencies to develop a complete factual record and apply their
expertise before judicial review occurs. White Mountain
Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988).
Only in “exceptional circumstances” is administrative exhaus-
tion not required. Id. The Cabaccangs presently have the abil-
ity to reopen their applications to adjust status during their
pending removal proceedings. Undoubtedly they will do so.
Until they have exhausted this available administrative rem-
edy, the district court cannot hear their claim.
We distinguish this case from our prior cases exercising
jurisdiction over denials of status adjustment. See Chan v.
Reno, 113 F.3d 1068 (9th Cir. 1997); Tang v. Reno, 77 F.3d
1194 (9th Cir. 1996); Jaa v. INS, 779 F.2d 569 (9th Cir.
1986). The district court relied on those cases in denying the
defendants’ motion to dismiss. Nevertheless, the court noted
“mixed jurisprudence” on the issue and recognized that defen-
dants’ arguments against jurisdiction carried “persuasive
force.” Further, the court cautioned that Chan, Tang, and Jaa
might be “distinguishable or inapplicable in a situation such
as this one” but declined to further address that argument
because defendants had not raised it.
CABACCANG v. USCIS 20739
Indeed, the cases are distinguishable. Unlike here, those
cases did not involve removal proceedings that were pending
during the federal action. In Chan and Tang, removal pro-
ceedings had never been initiated. See Chan, 113 F.3d at
1070; Tang, 77 F.3d at 1196. Further, the jurisdictional issue
was never raised in Tang. See 77 F.3d at 1196. In Jaa,
removal proceedings were already complete and a deportation
order had issued. 779 F.2d at 570-71. As the Third Circuit has
explained, this distinction is crucial. See Pinho v. Gonzalez,
432 F.3d 193, 201-02 (3d Cir. 2005). Without a pending
removal proceeding, a denial of status adjustment is final
because there is no appeal to a superior administrative author-
ity. Id.; see also supra n.2. On the other hand, when removal
proceedings are pending, further administrative relief is avail-
able. Pinho, 432 F.3d at 201-02. Accordingly, we join our sis-
ter circuits in holding that district courts lack jurisdiction to
review denials of status adjustment if removal proceedings are
simultaneously pending. Howell v. INS, 72 F.3d 288, 292-93
& n.5 (2d Cir. 1995); Randall v. Meese, 854 F.2d 472, 481-82
(D.C. Cir. 1988).
Finally, we reject the Cabaccangs’ argument that jurisdic-
tion vested with the filing of their original complaint in Janu-
ary 2007, notwithstanding the subsequent initiation of
removal proceedings. This argument fails for at least two rea-
sons. First, the operative complaint in this case is the Cabac-
cangs’ first amended complaint filed on July 30, 2008. This
filing occurred after both Cabaccangs were issued Notices to
Appear, thereby initiating removal proceedings (although
Belen’s notice was later reissued to cure a defect). Second,
although jurisdiction is usually determined from the filing of
the relevant complaint, after-arising events can defeat juris-
diction by negating the ripeness of a claim. See Hose v. INS,
180 F.3d 992, 996 (9th Cir. 1999). Such is the case here.
Regardless of whether the Cabaccangs’ removal proceedings
began before this action, the pendency of removal proceed-
ings now means their claims are not ripe for judicial review.
See Wolfson v. Brammer, 616 F.3d 1045, 1057 (9th Cir. 2010)
20740 CABACCANG v. USCIS
(holding that claims are not ripe when the injury “may never
occur” (internal quotation omitted)). To hold otherwise would
allow plaintiffs to confer jurisdiction on the federal courts
simply by racing to the courthouse before the government ini-
tiates removal proceedings.
Because the district court lacked jurisdiction, we do not
reach the Cabaccangs’ APA claim on the merits.
III
[4] The district court lacked jurisdiction over this action.
USCIS’s denial of the Cabaccangs’ applications to adjust sta-
tus is nonfinal, and the Cabaccangs have not exhausted their
administrative remedies. Thus, we vacate the district court’s
order of June 15, 2009, and remand with instructions to dis-
miss the action for lack of jurisdiction.
VACATED and REMANDED with instructions.