FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NADEEM HASSAN,
Plaintiff-Appellant,
No. 06-17252
v.
D.C. No.
MICHAEL CHERTOFF, Secretary of CV-04-02251-PHX-
Department of Homeland Security; FJM
AL GALLMANN, Acting District
ORDER AND
Director, Phoenix District Office,
AMENDED
Citizenship and Immigration
OPINION
Service,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted
June 13, 2008—San Francisco, California
Filed September 11, 2008
Amended January 19, 2010
Before: Mary M. Schroeder, John M. Walker, Jr.,* and
N. Randy Smith, Circuit Judges.
Per Curiam Opinion
*The Honorable John M. Walker, Jr., Senior U.S. Circuit Judge for the
Second Circuit, sitting by designation.
1199
HASSAN v. CHERTOFF 1201
COUNSEL
Eric G. Bjotvedt, Esq., Phoenix, Arizona, for plaintiff/
appellant, Nadeem Hassan.
Thomas H. Dupree, Jr., Esq. USDOJ, Washington, D.C., for
defendants/appellees, Michael Chertoff, Secretary of Home-
land Security et al.
1202 HASSAN v. CHERTOFF
ORDER
The Opinion filed September 11, 2008, slip op. 12719, and
appearing at 543 F.3d 564 (9th Cir 2008), is amended as fol-
lows:
1. At slip op. 12723, following the “Analysis” heading,
substitute the first two paragraphs with:
“Hassan argues that the government inappropriately denied
his application for adjustment of status. The government,
however, denied Hassan’s application as a matter of discre-
tion. The government concluded that Hassan posed a threat to
national security. As the district court correctly noted, judicial
review of the denial of an adjustment of status application —
a decision governed by 8 U.S.C. § 1255 — is expressly pre-
cluded by 8 U.S.C. § 1252(a)(2)(B)(i). Moreover, judicial
review of a discretionary determination is also expressly pre-
cluded by 8 U.S.C. § 1252(a)(2)(B)(ii). The denial of Has-
san’s adjustment of status application on the basis that he
poses a threat to national security is a determination commit-
ted to the discretion of the Attorney General or the Secretary
of Homeland Security. 8 U.S.C. § 1252(a)(2)(B)(ii); cf.
Hosseini v. Gonzales, 464 F.3d 1018, 1021 (9th Cir. 2006)
(“We lack jurisdiction to review the BIA’s denial of
Hosseini’s adjustment of status claim because the BIA alter-
natively denied relief as a matter of discretion.”). Therefore,
this court lacks the authority to review Hassan’s claim under
8 U.S.C. § 1252(a)(2)(B)(ii).
However, “[w]e retain jurisdiction to review constitutional
claims, even when those claims address a discretionary deci-
sion.” Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th
Cir. 2003). Hassan asserts that his due process rights were
violated because the government failed to follow its own reg-
ulations during the decision-making process. Specifically,
Hassan contends that the government deprived him of the
opportunity to rebut evidence against him in violation of its
HASSAN v. CHERTOFF 1203
regulations. See 8 C.F.R. § 103.2(b)(16)(i). This regulation
provides that, if a decision
will be adverse to the applicant or petitioner and is
based on derogatory information considered by the
Service and of which the applicant or petitioner is
unaware, he/she shall be advised of this fact and
offered an opportunity to rebut the information and
present information in his/her own behalf before the
decision is rendered.
Id.
Hassan’s argument fails. Hassan was aware of the informa-
tion against him. He was questioned about his involvement in
the terrorist organization. He was given the opportunity to
explain his association during the course of that questioning.
The regulation that Hassan cites requires no more of the gov-
ernment. Accordingly, Hassan has failed to raise a colorable
constitutional argument, and a litigant must raise a colorable
constitutional violation before this court has jurisdiction to
review his otherwise unreviewable claim. See, e.g., Sanchez-
Cruz v. INS, 255 F.3d 775, 779 (9th Cir. 2001).”
2. At slip op. 12725, substitute the final paragraph of the
opinion with: “For the foregoing reasons, we affirm the dis-
trict court’s dismissal of this case.”
With these amendments, the panel has voted to deny the
petition for panel rehearing and the petition for rehearing en
banc, and Judge Walker so recommends.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.
1204 HASSAN v. CHERTOFF
Absent further order of the court, no further petitions for
rehearing or rehearing en banc will be considered.
OPINION
PER CURIAM:
Nadeem Hassan, a citizen of Pakistan, appeals the district
court’s dismissal of his complaint seeking mandamus relief
and challenging the government’s denial of his application for
adjustment of status and cancellation of his permission to
return to this country. We lack jurisdiction to review the gov-
ernment’s actions and affirm the district court’s dismissal. See
8 U.S.C. § 1252(a)(2)(B)(i)-(ii).
Background
In January 2002, while physically present in the United
States, Hassan applied for adjustment of status to lawful per-
manent resident pursuant to section 245 of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1255(a). In October
2004, the government had not yet acted on his application, so
he filed this mandamus action in the United States District
Court to compel the government to act on the application. In
2005, the government questioned him about possible ties to a
group the government suspected of having links to terrorists.
While his adjustment application was still pending, Hassan
traveled outside the United States to Saudi Arabia. He
received a travel document from the government, Form I-512,
commonly referred to as an “advance parole.” It granted him
permission to return to the United States, so long as his appli-
cation for adjustment remained pending. While Hassan was
abroad, the government denied his adjustment application and
revoked the advance parole. When he attempted to return to
the United States, he was denied admission, placed in expe-
HASSAN v. CHERTOFF 1205
dited removal proceedings, and removed. He then amended
his complaint in this action to challenge the denial of status
adjustment and revocation of advance parole.
The district court held that under the REAL ID Act of
2005, 8 U.S.C. § 1252(a)(2)(B), both the denial of the adjust-
ment of status and the revocation of the advance parole were
discretionary decisions that the court lacked jurisdiction to
review. The statute the court relied upon with respect to
adjustment of status provides that “no court shall have juris-
diction to review any judgment regarding the granting of
relief under section . . . 1255 of this title . . . .” 8 U.S.C.
§ 1252(a)(2)(B)(i). The statute the district court relied on to
determine that it lacked jurisdiction to review the revocation
of advance parole is 8 U.S.C. § 1252(a)(2)(B)(ii), which pro-
vides that “no court shall have jurisdiction to review any other
decision . . . of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under
this subchapter to be in the discretion of the Attorney General
or the Secretary of Homeland Security . . . .”
Analysis
[1] Hassan argues that the government inappropriately
denied his application for adjustment of status. The govern-
ment, however, denied Hassan’s application as a matter of
discretion. The government concluded that Hassan posed a
threat to national security. As the district court correctly
noted, judicial review of the denial of an adjustment of status
application — a decision governed by 8 U.S.C. § 1255 — is
expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(i). More-
over, judicial review of a discretionary determination is also
expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(ii). The
denial of Hassan’s adjustment of status application on the
basis that he poses a threat to national security is a determina-
tion committed to the discretion of the Attorney General or
the Secretary of Homeland Security. 8 U.S.C.
§ 1252(a)(2)(B)(ii); cf. Hosseini v. Gonzales, 464 F.3d 1018,
1206 HASSAN v. CHERTOFF
1021 (9th Cir. 2006) (“We lack jurisdiction to review the
BIA’s denial of Hosseini’s adjustment of status claim because
the BIA alternatively denied relief as a matter of discretion.”).
Therefore, this court lacks the authority to review Hassan’s
claim under 8 U.S.C. § 1252(a)(2)(B)(ii).
However, “[w]e retain jurisdiction to review constitutional
claims, even when those claims address a discretionary deci-
sion.” Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th
Cir. 2003). Hassan asserts that his due process rights were
violated because the government failed to follow its own reg-
ulations during the decision-making process. Specifically,
Hassan contends that the government deprived him of the
opportunity to rebut evidence against him in violation of its
regulations. See 8 C.F.R. § 103.2(b)(16)(i). This regulation
provides that, if a decision
will be adverse to the applicant or petitioner and is
based on derogatory information considered by the
Service and of which the applicant or petitioner is
unaware, he/she shall be advised of this fact and
offered an opportunity to rebut the information and
present information in his/her own behalf before the
decision is rendered.
Id.
[2] Hassan’s argument fails. Hassan was aware of the infor-
mation against him. He was questioned about his involvement
in the terrorist organization. He was given the opportunity to
explain his association during the course of that questioning.
The regulation that Hassan cites requires no more of the gov-
ernment. Accordingly, Hassan has failed to raise a colorable
constitutional argument, and a litigant must raise a colorable
constitutional violation before this court has jurisdiction to
review his otherwise unreviewable claim. See, e.g., Sanchez-
Cruz v. INS, 255 F.3d 775, 779 (9th Cir. 2001).
HASSAN v. CHERTOFF 1207
The only remaining question pertains to the revocation of
Hassan’s advance parole. The district court ruled that it lacked
jurisdiction to consider the issue because the revocation of
advance parole, like the grant of advance parole, is discretion-
ary. See 8 U.S.C. § 1182(d)(5)(A) (stating that the Attorney
General may “in his discretion parole into the United States
. . . any alien”); see also Samirah v. O’Connell, 335 F.3d 545,
548 (7th Cir. 2003) (“The Attorney General . . . has the dis-
cretion to revoke advance parole after it has been granted.”).
[3] On appeal, Hassan argues that the district court had
jurisdiction to review the revocation. He claims that the gov-
ernment lacked any discretion to revoke his advance parole
because no statute or regulation expressly authorizes revoca-
tion. We disagree. The statutory and regulatory provisions
governing the grant of parole provide for the revocation of
parole when it no longer serves its purpose. See 8 U.S.C.
§ 1182(d)(5)(A) (“[W]hen the purpose of such parole shall, in
the opinion, of the Attorney General, have been served the
alien shall forthwith return or be returned to the custody from
which he was paroled and thereafter his case shall continue to
be dealt with in the same manner as that of any other appli-
cant for admission to the United States.”); 8 C.F.R.
§ 212.5(e)(2)(i) (providing that DHS “shall” terminate parole
“upon accomplishment of the purpose for which parole was
authorized or when in the opinion of [certain enumerated
DHS officials], neither humanitarian reasons nor public bene-
fit warrants the continued presence of the alien in the United
States”); see also Samirah, 335 F.3d at 548 (interpreting these
provisions as granting DHS authority to revoke advance
parole).
[4] DHS complied with these regulations when it revoked
Hassan’s advance parole. It is undisputed that Hassan was
granted advance parole solely to allow him to return to this
country while his application for status adjustment was pend-
ing. Thus, once Hassan’s application for adjustment of status
was denied, he was no longer eligible for advance parole. See
1208 HASSAN v. CHERTOFF
U.S. Citizenship & Immigration Servs., Dep’t of Homeland
Sec., Adjudicator’s Field Manual § 54.3 (2008) (providing
that an applicant for adjustment of status is eligible for
advance parole only if his application has not yet been
decided). The revocation inevitably followed from DHS’s dis-
cretionary decision to deny the adjustment of status. Under
these circumstances, DHS was required by its own regulation
to terminate the advance parole, the parole having served its
purpose. See 8 C.F.R. § 212.5(e)(2)(i).
The district court properly rejected Hassan’s argument that
it had jurisdiction to review the revocation of advance parole
as an ultra vires. The revocation was lawfully authorized.
For the foregoing reasons, we affirm the district court’s dis-
missal of this case.
AFFIRMED.