Sabina Francois v. Jeh Johnson

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 29 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SABINA CAROL FRANCOIS, No. 14-16211

Plaintiff - Appellant, D.C. No. 2:13-cv-01964-PGR

v.
MEMORANDUM*
JEH JOHNSON, Secretary of Homeland
Security; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Submitted May 10, 2016
San Francisco, California

Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.

Sabina Francois appeals the district court’s order dismissing her case for

lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and in the alternative,

for failure to state a claim, Fed. R. Civ. P. 12(b)(6). We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm the district court’s dismissal of Francois’

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
complaint for lack of subject matter jurisdiction.

We review de novo the denial of mandamus relief, dismissal for failure to

exhaust administrative remedies, dismissal for lack of subject matter jurisdiction,

and dismissal for failure to state a claim. Kahle v. Gonzales, 487 F.3d 697, 699

(9th Cir. 2007); Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003).

1. The district court did not err in concluding that the REAL ID Act operated

retroactively to strip the district court of jurisdiction to consider Francois’ claims.

Although Francois has attempted to frame her claims as an affirmative request for

mandamus and declaratory relief, at bottom, she challenges the government’s

denial of discretionary relief1 within the meaning of 8 U.S.C. § 1252(a)(2)(B)(i).

Consequently, Section 1252’s jurisdictional provisions bar the district court from

exercising jurisdiction over Francois’ complaint.

Even if the REAL ID Act did not apply to Francois’ complaint, however,

Francois’ claims are inextricably intertwined with underlying removal proceedings

1
We have held that in some circumstances, approval of an I-130 spousal
visa petition is nondiscretionary, and thus subject to Article III review. Ching v.
Mayorkas, 725 F.3d 1149, 1155–56 (9th Cir. 2013). Nonetheless, we have held
that denial of an adjustment application (Form I-485) may be discretionary or
nondiscretionary depending on the facts underlying the denial. Hassan v. Chertoff,
593 F.3d 785, 787 (9th Cir. 2008). Regardless of the discretionary or
nondiscretionary nature of the underlying agency action, in all cases, we retain
jurisdiction to review questions of law and constitutional claims. 8 U.S.C. §
1252(a)(2)(D); Carillo de Palacios v. Holder, 708 F.3d 1066, 1069 (9th Cir. 2013).

2
before the immigration court.2 When the agency adjudicated Francois’ application,

all versions of the Immigration and Naturalization Act (INA) in force at that time

contained a “zippering” provision that required petitioners to challenge the denial

of relief “ancillary to an application for permanent residency” in a petition for the

court of appeals’ review of final removal orders. Jaa v. U.S. Immigr. &

Naturalization Serv., 779 F.2d 569, 571 (9th Cir. 1986); see 8 U.S.C. §

1252(a)(2)(B)(i) (2000); 8 U.S.C. §§ 1105a(a) & 1329 (1994); Singh v. Holder,

638 F.3d 1196, 1210 (9th Cir. 2011); Morales-Izquierdo v. U.S. Dep’t of

Homeland Sec., 600 F.3d 1076, 1085 (9th Cir. 2010) (en banc), overruled in part

on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012)

(en banc). Although Francois is not yet subject to a final order of removal, under

the specific facts of this case, the denial of Francois’ adjustment application will

not be ripe for judicial review until removal proceedings conclude before the

agency.

Thus, under any relevant iteration of the INA, the district court lacked

subject matter jurisdiction over Francois’ complaint.

2. Because we affirm the dismissal of Francois’ complaint on subject matter

2
We note that those proceedings have been administratively closed pending
resolution of this case.

3
jurisdiction grounds, we need not reach the merits of Francois’ requests for

mandamus and declaratory relief. Accordingly, we vacate the district court’s Rule

12(b)(6) determinations and dismiss Francois’ case for lack of subject matter

jurisdiction.

AFFIRMED.