FILED
NOT FOR PUBLICATION FEB 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HICHAM ALDARWICH, No. 13-55455
Plaintiff - Appellant, D.C. No. 8:12-cv-01463-CJC-
RNB
v.
MARK HAZUDA, Director of the MEMORANDUM*
Citizenship and Immigration Services,
Nebraska Service Center,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted February 9, 2015**
Pasadena, California
Before: KOZINSKI, CHRISTEN, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. Hicham Aldarwich appeals the district court’s dismissal of this action for
want of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and
affirm the dismissal of the complaint.
2. To the extent that Aldarwich’s complaint sought to compel the United States
Citizenship and Immigration Services (“USCIS”) to adjudicate his application for
adjustment of status and to declare that he was not inadmissible, that claim became
moot when the USCIS denied the application during the district court proceedings.
See Mamigonian v. Biggs, 710 F.3d 936, 942 (9th Cir. 2013). Both the district court
and this court lack jurisdiction to review the discretionary denial of the adjustment of
status application. See 8 U.S.C. §§ 1159(b), 1252(a)(2)(B)(ii); Kucana v. Holder, 558
U.S. 233, 248-49 (2010); Mamigonian, 710 F.3d at 943.
3. Aldarwich argues that a live controversy exists because he also sought
review of the USCIS’s underlying non-discretionary determination that he was
inadmissible pursuant to 8 U.S.C. § 1182(a)(3)(B). Mamigonian clarified that 8
U.S.C. § 1252(a)(2)(D) does not strip the district courts of jurisdiction to review non-
discretionary inadmissibility findings outside the context of a petition for review. 710
F.3d at 946. But the district court still lacked jurisdiction because the USCIS had not
yet made a determination regarding Aldarwich’s application when the complaint was
filed. See id. at 942. Jurisdiction is contingent upon a “‘final agency action,’” id. at
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941 (quoting 5 U.S.C. § 704 (2012)), and “‘[s]ubject matter jurisdiction must exist as
of the time the action is commenced,’” id. at 942 (quoting Morongo Band of Mission
Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988)). “‘If
jurisdiction is lacking at the outset,’” as here, “‘the district court has no power to do
anything with the case except dismiss.’” Id. (quoting Orff v. United States, 358 F.3d
1137, 1149 (9th Cir. 2004)).
4. As in Mamigonian, here the “dismissal was, by default, without prejudice.”
Id. at 946. Given the final agency action, Aldarwich is not barred from now asserting
that the USCIS improperly denied his adjustment-of-status application on
nondiscretionary grounds. Id.
AFFIRMED.
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