FILED
NOT FOR PUBLICATION
SEP 3 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE GOMEZ GUTIERREZ; No. 20-16644
SHANNON GOMEZ,
D.C. No.
Plaintiffs-Appellants, 2:19-cv-01240-JCM-VCF
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted August 12, 2021**
San Francisco, California
Before: SILER,*** CHRISTEN, and FORREST, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Plaintiffs Enrique Gomez Gutierrez and Shannon Gomez, a married couple,
appeal the district court’s order granting Defendants’ motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1). We have jurisdiction, 28 U.S.C. § 1291,
and we affirm. Because the parties are familiar with the facts, we recite only those
necessary to decide the appeal.
The district court correctly held that it did not have jurisdiction to review the
United States Citizenship and Immigration Services’s (“USCIS”) denial of
Enrique’s Form I-601 Application of Waiver for Grounds of Inadmissibility under
8 U.S.C. § 1182(i)(1).1 Pursuant to 8 U.S.C. § 1182(i)(2), “[n]o court shall have
jurisdiction to review a decision or action of the Attorney General regarding a
waiver” of inadmissibility. See Corona-Mendez v. Holder, 593 F.3d 1143, 1146
(9th Cir. 2010). Congress also divested the district court of jurisdiction to review
decisions (like the denial of Enrique’s Form I-601 under § 1182(i)(1)) that are “in
the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii); § 1182(i)(1)
(emphasis added) (“The Attorney General may, in the discretion of the Attorney
1
Because USCIS denied Enrique’s Form I-601, his Form I-485 Application
for Adjustment of Status and Form I-212 Application for Permission to Reapply
for Admission into the United States after Deportation or Removal were
automatically denied.
2
General, waive . . .”); see also Poursina v. U.S. Citizenship & Immigr. Servs., 936
F.3d 868, 873 (9th Cir. 2019).
Plaintiffs’ argument that the district court had jurisdiction under 8 U.S.C. §
1252(a)(2)(D) is not persuasive. Although that provision confers jurisdiction to
“an appropriate court of appeals” to review “constitutional claims or questions of
law,” it is inapplicable because Plaintiffs brought their claims before a district
court, and Plaintiffs raise neither constitutional claims nor questions of law; the
error they point to is USCIS’s failure to analyze the hardship to Shannon,
Enrique’s lawfully resident spouse.
Plaintiffs’ argument that the Administrative Procedure Act (“APA”)
supplied jurisdiction to the district court is likewise unavailing. The APA provides
that it does not apply “to the extent that (1) statutes preclude judicial review; or (2)
agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). The
district court correctly held that it did not have jurisdiction under the APA because
§ 1182(i)(2) and § 1252(a)(2)(B) preclude judicial review, and USCIS’s denial of
Enrique’s Form I-601 was discretionary.
AFFIRMED
3