Silva Mamigonian v. Michael Biggs

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SILVA MAMIGONIAN , No. 11-15398
Petitioner-Appellant,
D.C. No.
v. 2:11-cv-00404-
GEB-DAD
MICHAEL BIGGS; SUSAN
CURDA ; TIMOTHY AITKEN ; OPINION
JOHN MORTON ; ALEJANDRO
AYORKAS; JANET A.
NAPOLITANO ; ERIC H.
HOLDER , JR., Attorney
General,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted
November 8, 2012—San Francisco, California

Filed March 14, 2013
2 MAMIGONIAN V . BIGGS

Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit
Judges, and Kevin Thomas Duffy, District Judge.*

Opinion by Judge Duffy

SUMMARY**

Immigration

The panel affirmed the district court’s dismissal for lack
of jurisdiction of Silva Mamigonian’s habeas corpus and
mandamus petition challenging the United States Citizenship
and Immigration Service’s denial of her first adjustment of
status application, and seeking to order USCIS to approve her
then-pending second and third adjustment applications.

The panel held that the district court did not have
jurisdiction over Mamigonian’s petition because: (1) the
REAL ID Act eliminated district court habeas jurisdiction
over orders of removal; (2) there had been no final agency
action by USCIS on the two applications pending at the time
she filed the petition; and (3) her mandamus claim was
mooted when the USCIS subsequently decided those two
applications. The panel further held that, because USCIS
since denied all of her pending applications, the district court
would now have jurisdiction under the Administrative

*
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MAMIGONIAN V . BIGGS 3

Procedure Act to hear her claim. The panel held that district
courts have jurisdiction to hear cases under the APA
challenging final agency non-discretionary determinations
respecting eligibility for the immigration benefits enumerated
in 8 U.S.C. § 1252(a)(2)(B)(i), provided there is no pending
removal proceeding in which the alien could seek those
benefits.

The panel declined to convert Mamigonian’s appeal into
a petition to this court, and declined to dismiss it under the
fugitive disentitlement doctrine because, although she failed
to report for deportation, her whereabouts were known to her
counsel, the Department of Homeland Security, and the court
during the pendency of her case, and there was no indication
that she was in hiding.

COUNSEL

Gittel Gordon (argued), Law Office of Gittel Gordon, La
Jolla, California for Petitioner-Appellant.

Thomas J. Davis (argued) and Shay Dvoretzky, Jones Day,
Washington, D.C., as amicus curiae for Petitioner-Appellant.

Audrey B. Hemesath (argued), Assistant United States
Attorney, Sacramento, California, and Samuel P. Go, Senior
Litigation Counsel, United States Department of Justice,
Washington, D.C. for Respondents-Appellees.
4 MAMIGONIAN V . BIGGS

OPINION

DUFFY, District Judge:

Silva Mamigonian, an Armenian native, filed a Petition
for Writ of Habeas Corpus, Injunctive and Declaratory Relief,
and Mandamus (“District Court Petition”) against the U.S.
Attorney General and officials of the Department of
Homeland Security (“DHS”), U.S. Citizenship and
Immigration Services (“USCIS”), and U.S. Immigration and
Customs Enforcement (“ICE”) in the Eastern District of
California (“District Court”) seeking to enjoin her imminent
removal, reverse USCIS’s denial of her first adjustment-of-
status application, and order USCIS to approve her then-
pending second and third adjustment-of-status applications.
After the District Court Petition was filed but before it was
dismissed, USCIS denied Ms. Mamigonian’s second and
third adjustment-of-status applications. The following day,
the District Court dismissed the case for lack of jurisdiction.
Ms. Mamigonian now appeals the dismissal, and, in the
alternative, seeks to convert her appeal into a petition
challenging in this court USCIS’s denial of her adjustment-
of-status applications pursuant to 8 U.S.C. § 1252(a)(2)(D).

For the reasons discussed below, we affirm the District
Court, and decline to convert Ms. Mamigonian’s appeal into
a petition to this court. We also hold that district courts have
jurisdiction to hear cases challenging determinations made on
nondiscretionary grounds respecting eligibility for the
immigration benefits enumerated in 8 U.S.C.
§ 1252(a)(2)(B)(i), provided there are no pending removal
proceedings in which an alien could apply for such benefits.
See Montero-Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir.
2002). The District Court did not have jurisdiction over Ms.
 MAMIGONIAN V . BIGGS 5

Mamigonian’s petition because there had been no final
agency action by USCIS on her pending adjustment-of-status
applications at the time she filed her petition. However,
because USCIS has since denied all of Ms. Mamigonian’s
adjustment-of-status applications, barring the discovery of
new facts, the district court would now have jurisdiction
under the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 704, to hear Ms. Mamigonian’s claim that her application
was improperly denied.

BACKGROUND

Ms. Mamigonian is a native and citizen of Armenia. She
arrived in the United States on February 3, 2002, by way of
the Los Angeles International Airport. At the airport, Ms.
Mamigonian presented a U.S. passport that was not her own.
Immigration Officer Anna White interviewed Ms.
Mamigonian and took a sworn statement through an
interpreter. Although Officer White ultimately deemed Ms.
Mamigonian inadmissible, she paroled Ms. Mamigonian into
the United States. On March 7, 2002, U.S. Immigration and
Naturalization Services (“INS”) (now reorganized under DHS
into USCIS, ICE, and U.S. Customs and Border Patrol)
initiated removal proceedings against Ms. Mamigonian.

On May 28, 2003, Ms. Mamigonian married a naturalized
U.S. citizen. The couple now has two U.S. citizen children
who were born on December 12, 2002, and March 10, 2006,
respectively. On February 11, 2004, Ms. Mamigonian’s
husband filed a relative immigrant visa petition on her behalf,
which was approved by USCIS on October 11, 2005. On
October 13, 2005, Ms. Mamigonian filed an application with
USCIS for an adjustment of status to that of a lawful
permanent resident. On November 7, 2007, USCIS denied
6 MAMIGONIAN V . BIGGS

the application and issued a written decision basing the denial
on Ms. Mamigonian’s alleged false claim to citizenship.

An immigration judge (“IJ”) held removability hearings
on December 16, 2008, and February 18, 2009. On June 26,
2009, finding credible Ms. Mamigonian’s testimony that she
did not intentionally present a passport that was not her own,
the IJ dismissed the charges for falsely claiming citizenship
and for fraud or material misrepresentation in order to
procure a benefit under Section 212(a)(6)(C)(i) of the
Immigration and Nationality Act (“INA”). The IJ noted that
Ms. Mamigonian conceded removability “for being present
in the United States without a valid visa,” and ordered Ms.
Mamigonian removed to Armenia for that reason. The IJ
noted, however, that “USCIS retains jurisdiction over
adjustment of status of an arriving alien.”

On July 30, 2009, Ms. Mamigonian filed a second
adjustment-of-status application with USCIS. On December
4, 2009, USCIS denied the application, stating that Ms.
Mamigonian was ineligible to seek an adjustment of status
because the IJ had ordered her removal.

Ms. Mamigonian filed a motion to reopen the removal
proceedings on January 11, 2010, which the IJ denied on
April 23, 2010. On August 6, 2010, ICE took Ms.
Mamigonian into custody. She requested a stay of
deportation, which DHS granted until January 2011. In the
meantime, she was released. Ms. Mamigonian filed a second
motion to reopen the removal proceedings, which the IJ again
denied on November 29, 2010.

On October 5, 2010, Ms. Mamigonian filed a third
application for an adjustment of status. On December 28,
 MAMIGONIAN V . BIGGS 7

2010, USCIS reopened and denied Ms. Mamigonian’s second
application. It also denied her third application. Ms.
Mamigonian was not given notice of the denials nor the bases
of denial, but USCIS issued a media statement on the same
day stating that she was ineligible for relief due in part to her
false claim to citizenship. USCIS reopened Ms.
Mamigonian’s third and second adjustment-of-status
applications on January 10, 2011, and February 3, 2011,
respectively.

On February 14, 2011, Ms. Mamigonian filed the District
Court Petition that is the subject of this appeal. She sought to
(i) enjoin her deportation through habeas relief, (ii) reverse
USCIS’s denial of her first adjustment-of-status application,
and (iii) order USCIS to approve her two pending adjustment-
of-status applications. The suit only lasted three days. The
day after Ms. Mamigonian filed suit, USCIS denied Ms.
Mamigonian’s second and third adjustment-of-status
applications based on the circumvention of normal visa
processing and a preconceived intent to immigrate to the
United States. These grounds for denial were in conflict with
some of the IJ’s earlier findings from the removal
proceedings, which Ms. Mamigonian’s counsel now argues
provides a legal basis for challenging USCIS’s determination.
The following day, the District Court dismissed the case for
lack of jurisdiction. This is the order that is the basis of this
appeal.

On February 17, 2011, Ms. Mamigonian timely filed a
notice of appeal and an emergency motion to stay removal
with this court. This court denied Ms. Mamigonian’s stay
motion the following day. ICE informed Ms. Mamigonian
that her deportation was scheduled for March 17, 2011. On
March 12, 2011, Ms. Mamigonian filed a motion for
8 MAMIGONIAN V . BIGGS

reconsideration with this court, which was denied on March
16, 2011.

The months following were filled with skirmishing
between the parties, much of which is set forth in the margin.1
Most of it has no impact on this appeal, other than a date was
set for deportation and Ms. Mamigonian failed to show up
when ordered.

The court heard oral argument on November 8, 2012.
Because Ms. Mamigonian failed to appear for her deportation
flight, and because she had not been in contact with the
government in the interim, the government argued that the
court should apply the fugitive disentitlement doctrine to
dismiss this case. We ordered supplemental briefing on the
issue following oral argument. The briefs indicate that Ms.
Mamigonian has since been in contact with ICE and the
government is electronically tracking her whereabouts.

We then ordered a second round of supplemental briefing
relating to whether we could convert Ms. Mamigonian’s
1
On March 17, 2011, Ms. Mamigonian appealed the second denial to
reopen the removal proceedings to the Board of Immigration Appeals
(“BIA”) and asked for a stay of removal pending the appeal. The BIA
denied Ms. Mamigonian’s request for a stay, and she appealed to this
court seeking review of the BIA’s interim order. This court granted a
temporary stay of removal pending further order. On April 21, 2011, the
BIA denied Ms. Mamigonian’s appeal. On July 20, 2011, this court
dismissed the case seeking review of the interim order as moot. M s.
Mamigonian did not petition this court for review of the decision by the
BIA dismissing her appeal.

ICE rescheduled her deportation for December 27, 2011. On
December 22, 2011, Ms. Mamigonian renewed her emergency motion to
stay removal. The next day, this court denied the emergency motion. Ms.
Mamigonian failed to appear for her scheduled deportation flight.
 MAMIGONIAN V . BIGGS 9

appeal into a petition for review of USCIS’s second and third
adjustment-of-status denials pursuant to 8 U.S.C.
§ 1252(a)(2)(D). From the time that Ms. Mamigonian arrived
in the United States to the present day, U.S. immigration laws
have undergone a number of changes, including the passage
of the REAL ID Act, Pub. L. No. 109–13, 119 Stat. 302
(2005). Among other things, the REAL ID Act consolidated
federal court review of certain immigration agency decisions
in the courts of appeals while stripping district courts of
jurisdiction. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing . . .
shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals . . . .”). Thus, the
second round of supplemental briefs addressed whether Ms.
Mamigonian’s suit was precluded in district court by the
REAL ID Act, and if so, whether we could convert the
present appeal into a petition challenging USCIS’s
adjustment-of-status denial on constitutional or legal grounds
under section 1252(a)(2)(D).

DISCUSSION

I. FUGITIVE DISENTITLEMENT DOCTRINE

We decline to dismiss this appeal on the basis of the
fugitive disentitlement doctrine, which is a discretionary
sanction courts can impose “to prevent appellate review for
escapees from the criminal justice system.” Sun v. Mukasey,
555 F.3d 802, 804 (9th Cir. 2009). In the immigration
context, this court has denied appellate relief for “aliens who
have fled custody and cannot be located” at the time their
appeals are pending. Id.; see also Zapon v. U.S. Dep’t of
Justice, 53 F.3d 283, 284–85 (9th Cir. 1995). Two factors
guide our discretion to dismiss an appeal based on the
10 MAMIGONIAN V . BIGGS

fugitive disentitlement doctrine: “(1) the pragmatic concern
with ensuring that the court’s judgment will be enforceable
against the appellant; and (2) the equitable notion that a
person who flouts the authority of the court waives his
entitlement to have his appeal considered.” Sun, 555 F.3d at
804.

Ms. Mamigonian’s failure to surrender for her deportation
flight on December 27, 2011, does not alone disentitle her
from making this appeal. See Arrozal v. Immigration &
Naturalization Serv., 159 F.3d 429, 432 (9th Cir. 1998)
(declining to dismiss appeal for failure to report for
deportation because petitioner was no longer a fugitive); cf.
Antonio-Martinez v. Immigration & Naturalization Serv., 317
F.3d 1089, 1091–93 (9th Cir. 2003) (denying petition for
review where petitioner had been “out of touch” with counsel
and INS “for well over two years”). Although the
government did not know Ms. Mamigonian’s whereabouts
when the parties originally briefed this appeal, it is currently
aware of her whereabouts and is now monitoring her
electronically.

We have previously declined to dismiss an appeal
pursuant to the fugitive disentitlement doctrine where,
although the petitioner had failed to report for deportation,
her whereabouts were known to her counsel, DHS, and the
court during the pendency of her case. See Sun, 555 F.3d at
805. Since Ms. Mamigonian’s whereabouts are known, and
there is no indication that she is in hiding, we decline to
dismiss her appeal on this basis.
 MAMIGONIAN V . BIGGS 11

II. THE DISTRICT COURT’S JURISDICTION

We do, however, affirm dismissal of the District Court
Petition for lack of jurisdiction. We review a district court’s
dismissal for lack of subject matter jurisdiction de novo.
Ass’n of Flight Attendants v. Horizon Air Indus., Inc., 280
F.3d 901, 904 (9th Cir. 2002). “The district court’s factual
findings relevant to its determination of subject matter
jurisdiction are reviewed for clear error.” Id. We also review
de novo a district court’s dismissal for lack of habeas corpus
jurisdiction. Morales-Izquierdo v. Dep’t of Homeland Sec.,
600 F.3d 1076, 1081 (9th Cir. 2010). Applying these
standards, we hold the District Court properly dismissed Ms.
Mamigonian’s case for lack of jurisdiction.

A. Habeas Jurisdiction Precluded by Statute

First, the REAL ID Act precludes aliens like Ms.
Mamigonian from seeking habeas relief over final orders of
removal in district courts. See 8 U.S.C. §§ 1252(a)(5),
1252(b)(9) (2012); Singh v. Gonzales, 499 F.3d 969, 978 (9th
Cir. 2007). Habeas relief for final orders of removal is only
available through a petition to the court of appeals.
§ 1252(a)(5); see Trinidad y Garcia v. Thomas, 683 F.3d 952,
958 (9th Cir. 2012) (Thomas, J., concurring) (discussing how
REAL ID Act stripped district courts of jurisdiction to review
final orders of removal and consolidated review in the courts
of appeals); Morales-Izquierdo, 600 F.3d at 1080 (“The
REAL ID Act eliminated district court habeas corpus
jurisdiction over orders of removal, vesting jurisdiction
exclusively in the courts of appeals.”) (citing Puri v.
Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006)). The District
Court thus correctly concluded that it did not have
12 MAMIGONIAN V . BIGGS

jurisdiction to adjudicate Ms. Mamigonian’s habeas petition
challenging her final order of removal.

B. No Final Agency Action When Suit Was Filed

Second, because USCIS had not made final
determinations on Ms. Mamigonian’s reopened adjustment-
of-status applications when she filed suit, the District Court
did not have jurisdiction to review USCIS’s actions. As a
general matter, district courts are empowered to review
agency action by the Administrative Procedure Act (“APA”),
5 U.S.C. § 551 et seq. (2012), and have federal question
jurisdiction over such claims pursuant to 28 U.S.C. § 1331
(2012). But for a court to hear a case like this pursuant to the
APA, there must be “final agency action for which there is no
other adequate remedy in a court.” 5 U.S.C. § 704 (2012)
(emphasis added). Two conditions must be satisfied for
agency action to be final for purposes of the APA: “First, the
action must mark the ‘consummation’ of the agency’s
decisionmaking process—it must not be of a merely tentative
or interlocutory nature. And second, the action must be one
by which ‘rights and obligations have been determined,’ or
from which ‘legal consequences will flow.’” Bennett v.
Spear, 520 U.S. 154, 177–78 (1997) (citations omitted).

Here, since USCIS had not yet made a determination on
Ms. Mamigonian’s pending adjustment-of-status applications
when she filed suit in the District Court, there was no “final”
agency action for subject matter jurisdiction.2 “Subject
matter jurisdiction must exist as of the time the action is

2
Though USCIS denied her applications while her case was pending
before the District Court, there is no evidence in the record that the
District Court was apprised of this when it determined it had no
jurisdiction.
 MAMIGONIAN V . BIGGS 13

commenced.” Morongo Band of Mission Indians v. Cal. St.
Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). “If
jurisdiction is lacking at the outset, the district court has no
power to do anything with the case except dismiss.” Orff v.
United States, 358 F.3d 1137, 1149 (9th Cir. 2004) (internal
quotation omitted).

C. USCIS Decision Mooted Mandamus Action

Third, Ms. Mamigonian’s mandamus request was mooted
when, the day after she filed suit, USCIS finally rendered a
decision on her adjustment-of-status applications. The
mootness doctrine, embedded in Article III of the
Constitution, requires that a case or controversy exist at all
stages of federal court proceedings. U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 397 (1980). Federal courts do not
have constitutional authority to decide moot cases. Pitts v.
Terrible Herbst, Inc., 653 F.3d 1081, 1087 (9th Cir. 2011).
“[I]f events subsequent to the filing of the case resolve the
parties’ dispute, [a court] must dismiss the case as moot.” Id.
Thus, the District Court properly dismissed this case for
lack of jurisdiction,3 and we accordingly affirm. The REAL
ID Act precludes district courts from exercising jurisdiction
over habeas claims brought by aliens like Ms. Mamigonian;
there was no final agency action on Ms. Mamigonian’s
adjustment-of-status applications when she filed suit; and her
mandamus action was mooted by USCIS’s subsequent
decision.

3
The default rule is that, where unspecified by a district court, dismissal
for lack of jurisdiction is without prejudice. See Fed. R. Civ. P. 41(b)
(2012); Hargris v. Foster, 312 F.3d 404, 412 (9th Cir. 2002) (“[O]rders
that fail to specify whether dismissal is with or without prejudice are to be
interpreted as dismissals without prejudice.”).
14 MAMIGONIAN V . BIGGS

III. CONVERTING THE APPEAL INTO A
PETITION
We decline to convert Ms. Mamigonian’s appeal into a
petition for review by this court pursuant to 8 U.S.C.
§ 1252(a)(2)(D) because, as explained below, district courts
maintain jurisdiction to review challenges to adjustment-of-
status denials that were decided on nondiscretionary grounds
despite the jurisdiction-stripping provisions of the REAL ID
Act. Litigants are thus not required to bring such claims by
direct petition to the courts of appeals, so there is no need to
perform the legal gymnastics Ms. Mamigonian requests. She
instead may choose to bring a claim under the APA in district
court that USCIS improperly denied her adjustment-of-status
application on nondiscretionary grounds.
IV. DISTRICT COURT JURISDICTION OVER
CHALLENGES TO NON-DISCRETIONARY
ACTION
A. The REAL ID Act’s Jurisdiction-Stripping
Provisions
The 2005 REAL ID Act limited the scope of federal court
review respecting certain immigration benefits
determinations. One such jurisdiction-limiting provision
provides that “regardless of whether the judgment, decision,
or action is made in removal proceedings, no court shall have
jurisdiction to review . . . any judgment regarding the
granting of relief under . . . [8 U.S.C.] § 1255.” 8 U.S.C.
§ 1252(a)(2)(B)(i) (2012). Section 1255 addresses the
adjustment of status of non-immigrants. Though the subtitle
of section 1252 is “Judicial review of orders of removal,” the
body of the text reading “regardless of whether the judgment,
decision, or action is made in removal proceedings” suggests
 MAMIGONIAN V . BIGGS 15

that “the jurisdictional limitations imposed by
§ 1252(a)(2)(B) also apply to review of agency decisions
made outside of the removal context.” Lee v. U.S. Citizenship
& Immigration Services, 592 F.3d 612, 619 (4th Cir. 2010).
Upon initial examination, the language of the statute
seems to wholly preclude judicial review of adjustment-of-
status determinations made by USCIS outside of removal
proceedings. But the operative jurisdiction-stripping
language in 8 U.S.C. § 1252(a)(2)(B)(i)4 was codified nearly
ten years prior to the enactment of the REAL ID Act, as part
of the Illegal Immigration Reform and Immigrant
Responsibility Act, Pub. L. No. 104–208, 110 Stat. 3009
(1996), which amended the INA. Before Congress enacted
the REAL ID Act, we interpreted that language in Montero-
Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir. 2002), and held
that the jurisdiction-stripping provision only precludes review
of discretionary determinations. Id. at 1142 (citing 8 U.S.C.
§ 1252(a)(2)(B)(i) (2001)). Specifically, the Montero-
Martinez court stated:
The meaning of “judgment” in
§ 1252(a)(2)(B)(i) is unclear because the
statute does not define the term, and it could
mean “any decision” . . ., or it could mean “a
decision involving the exercise of discretion.”
We know, however, that in the INA as a
whole, Congress only uses the word
“judgment” to refer to the exercise of
discretion or a discretionary determination
when it is not being used to refer to a
judgment of conviction. Moreover, when

4
Again, that “no court shall have jurisdiction to review . . . any
judgment regarding the granting of relief under . . . [8 U.S.C.] § 1255.”
16 MAMIGONIAN V . BIGGS

§ 1252(a)(2)(B)(i) is read together with
§§ 1252(a)(2)(A)(i) and (B)(ii) which directly
precede and follow it in the statutory code, it
seems clear that the “judgments” referred to in
§ 1252(a)(2)(B)(i) are “decisions . . . [within]
the discretion of the Attorney General.” A
review of the INA as a whole further
demonstrates that when Congress really
wanted to preclude review of all decisions . . .
regarding discretionary relief, it knew how to
do so in unambiguous terms. Instead of
eliminating review over “any appeal,” “all
decisions,” or “any determination” regarding
discretionary relief, however, Congress
instead chose to eliminate review over
“judgments” in § 1252(a)(2)(B)(i). On the
basis of this evidence, we conclude that
[§ 1252(a)(2)(B)(i)] eliminates jurisdiction
only over decisions . . . that involve the
exercise of discretion.
Id. at 1144.
Montero-Martinez came to us when we reviewed a BIA
decision on a final order of removal. Id. at 1140. Even prior
to the passage of the REAL ID Act, courts of appeals had
exclusive jurisdiction to review final orders of removal
(which they still maintain). Compare 8 U.S.C. § 1252(b)(2)
(2001) with 8 U.S.C. § 1252(b)(2) (2012). Although
Montero-Martinez dealt with a petitioner challenging a final
order of removal in the court of appeals, the principle that
8 U.S.C. § 1252(a)(2)(B)(i) does not strip courts of
jurisdiction to review nondiscretionary determinations applies
equally to district courts in circumstances not involving
review of final orders of removal. Thus, at least prior to the
 MAMIGONIAN V . BIGGS 17

enactment of the REAL ID Act, per Montero-Martinez, courts
retained jurisdiction over nondiscretionary questions relating
to eligibility for the immigration benefits enumerated in
1252(a)(2)(B)(i), including adjustment of status. Montero-
Martinez, 277 F.3d at 1144.
B. Montero-Martinez’s Viability Post-REAL ID Act
The 2005 REAL ID Act added a new provision to section
1252, which provides,
Nothing . . . which limits or eliminates
judicial review, shall be construed as
precluding review of constitutional claims or
questions of law raised upon a petition for
review filed with an appropriate court of
appeals in accordance with this section.
8 U.S.C. § 1252(a)(2)(D) (2012). We have not yet had
occasion to determine what effect, if any, the REAL ID Act
has on the continuing viability of our holding in Montero-
Martinez.5 However, two of our recent cases shed light on

5
T he majority of other courts of appeals have agreed with Montero-
Martinez, holding that 8 U.S.C. § 1252(a)(2)(B)(i) does not strip courts of
jurisdiction over nondiscretionary questions. See Sepulveda v. Gonzales,
407 F.3d 59, 63 (2d Cir. 2005); Mendez-Moranchel v. Ashcroft, 338 F.3d
176, 178 (3d Cir. 2003); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 216
(5th Cir. 2003); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir.
2005); Morales-Morales v. Ashcroft, 384 F.3d 418, 423 (7th Cir. 2004);
Ortiz-Cornejo v. Gonzales, 400 F.3d 610, 612 (8th Cir. 2005); Gonzales-
Oropeza v. U.S. Attorney General, 321 F.3d 1331, 1332 (11th Cir. 2003).
None of the cases listed above has been explicitly overruled post-REAL
ID Act. But see Schroeck v. Gonzales, 429 F.3d 947, 950 n.2 (10th Cir.
2005) (“[T]he jurisdictional limitations in § 1252(a)(2)(B)(i) . . . have been
abrogated in part by § 1252(a)(2)(D).”).
18 MAMIGONIAN V . BIGGS

the issue without resolving it: Hassan v. Chertoff, 543 F.3d
564 (9th Cir. 2008), amended by 593 F.3d 785 (9th Cir. 2010)
(per curiam), and Cabaccang v. U.S. Citizenship &
Immigration Servs., 627 F.3d 1313 (9th Cir. 2010).
In Hassan, the court initially noted that “judicial review
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).” 593 F.3d at 788–89. However,
the court then went on to hold that it lacked jurisdiction
because the government denied petitioner’s adjustment-of-
status application as a matter of discretion by deeming
petitioner a threat to national security. Id. at 789 (“Therefore,
this Court lacks the authority to review Hassan’s claim under
8 U.S.C. § 1252(a)(2)(B)(ii).”). Nothing in Hassan expressly
overrules Montero-Martinez’s holding that subsection
1252(a)(2)(B)(i) applies only to discretionary determinations.
See id.
And in Cabaccang, we addressed the issue of whether a
district court may hear an alien’s challenge to a USCIS
adjustment-of-status denial when removal proceedings are
simultaneously pending against the alien. 627 F.3d at 1314.
There, we held that the district court did not have jurisdiction
because there was no “final agency action” sufficient to
confer jurisdiction under the APA since the IJ presiding over
the removal proceedings could revisit the status adjustment.
Id. at 1315–16. We did not, however, hold that there was no
jurisdiction as a result of 8 U.S.C. § 1252(a)(2)(B)(i), nor did
we even mention this jurisdiction-stripping provision.
Instead, we cited with approval a number of circuit cases that
predated the REAL ID Act and authorized district courts to
review adjustment-of-status denials. See id. at 1317 (citing
Chan v. Reno, 113 F.3d 1068 (9th Cir. 1997); Tang v. Reno,
 MAMIGONIAN V . BIGGS 19

77 F.3d 1194 (9th Cir. 1996); Jaa v. INS, 779 F.2d 569 (9th
Cir. 1986)).
We did make clear in Cabaccang, though, that for
purposes of the APA, “[w]ithout a pending removal
proceeding, a denial of status adjustment is final because
there is no appeal to a superior administrative authority.” 627
F.3d at 1317 (citing Pinho v. Gonzales, 432 F.3d 193, 201–02
(3d Cir. 2005)); but see Lee, 592 F.3d at 620–21 (holding that
the opportunity for an alien to subsequently challenge an
adjustment of status during removal proceedings, and have
that decision reviewed by the appropriate court of appeals,
precludes district court review of the alien’s USCIS
adjustment-of-status determination under the APA).
Ms. Mamigonian is an arriving alien, and unlike admitted
aliens and the petitioners in Cabaccang, Pinho, and Lee, she
is precluded from submitting or renewing an application for
adjustment of status before an IJ during removal proceedings.
8 C.F.R. § 1245.2(a)(1)(ii).6 Since the IJ would be without
jurisdiction to adjudicate any claims relating to Ms.
Mamigonian’s adjustment of status, USCIS’s prior denial of
her adjustment of status would likewise fall outside the scope
of our (or any other circuit court’s) subsequent review of any
removal order. Therefore, because “denials of status
adjustment are not administratively reviewable outside of
removal proceedings,” Cabaccang, 627 F.3d at 1316 n.2, and
because such review would be unavailable to Ms.
Mamigonian even if her removal proceedings were to be
reopened, there is no question that USCIS’s denial of Ms.
6
This provision of the regulations provide a very specific exception for
certain arriving aliens who have, among other requirements, “departed
from and returned to the United States pursuant to the terms of a grant of
advance parole.” 8 C.F.R. § 1245.2(a)(1)(ii). There is no evidence in the
record to suggest that the exception applies to Ms. Mamigonian.
20 MAMIGONIAN V . BIGGS

Mamigonian’s adjustment-of-status applications is “final
agency action” for purposes of the APA.
Today we therefore affirm Montero-Martinez as good
law, and hold that district courts have jurisdiction to hear
cases challenging final agency determinations respecting
eligibility for the immigration benefits enumerated in
8 U.S.C. § 1252(a)(2)(B)(i) made on nondiscretionary
grounds, provided there is no pending removal proceeding in
which an alien could apply for such benefits.
The basis of our holding is that the REAL ID Act does not
evince Congress’s intent to abrogate Montero-Martinez or the
numerous similar cases from sister courts of appeals. In
interpreting the statute, we look, as we must, to the text of the
statute. United States v. Krstic, 558 F.3d 1010, 1013 (9th Cir.
2009).
First, the REAL ID Act did not alter the operative
jurisdiction-stripping provision contained in 8 U.S.C.
§ 1252(a)(2)(B). Presumably, if Congress wanted to abrogate
Montero-Martinez and the numerous similar cases from the
various courts of appeals, it would have done so explicitly by
changing the language of the statute—specifically, by
replacing the word “judgment.” § 1252(a)(2)(B)(i); see
Montero-Martinez, 277 F.3d at 1144 (“We know, however,
that in the INA as a whole, Congress only uses the word
‘judgment’ to refer to the exercise of discretion or a
discretionary determination when it is not being used to refer
to a judgment of conviction.”). Additionally, the relevant
section title remained “Denials of discretionary relief.”
§ 1252(a)(2)(B) (emphasis added). That the section title
remained unchanged as part of the REAL ID Act further
indicates that the new provisions were not intended to strip
courts of review of nondiscretionary determinations.
 MAMIGONIAN V . BIGGS 21

Another indication that Congress did not intend to
abrogate Montero-Martinez is that our interpretation of the
statute does not render 8 U.S.C. § 1252(a)(2)(D) redundant.
Section 1252(a)(2)(D), which vests courts of appeals with the
exclusive power to hear petitions making constitutional or
legal claims, is found in a section of the statute that only
empowers courts of appeals to hear petitions challenging
orders of removal. See 8 U.S.C. § 1252(a)(5) (“[A] petition
for review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive
means for judicial review of an order of removal . . . .”); see
also Trinidad y Garcia, 683 F.3d at 956 (en banc) (per
curiam) (construing § 1252(a)(4) as only applying to judicial
orders of removal); Singh, 499 F.3d at 978 (“[B]oth
§§ 1252(a)(5) and 1252(b)(9) apply only to those claims
seeking judicial review of orders of removal.”). In
comparison, there is no such authorization in the statute for
a petition to review a denied adjustment-of-status application
by USCIS. Thus, § 1252(a)(2)(D) authorizes courts of
appeals to conduct review of legal or constitutional claims
respecting final orders of removal via petition (and, indeed,
makes such a petition the only avenue of review for such
cases), while § 1252(a)(2)(B)(i) permits courts to conduct
review of nondiscretionary determinations in other
enumerated situations, such as adjustment-of-status denials.
Given these considerations, it is evident that Congress did
not intend the 2005 addition of § 1252(a)(2)(D) as part of the
REAL ID Act to abrogate Montero-Martinez and similar
cases. We therefore conclude that district courts maintain
jurisdiction to hear cases under the APA challenging final
agency determinations respecting eligibility for the
immigration benefits enumerated in § 1252(a)(2)(B)(i) made
on nondiscretionary grounds when there are no pending
22 MAMIGONIAN V . BIGGS

removal proceedings at which the alien could seek those
benefits.
CONCLUSION
We affirm the dismissal of Ms. Mamigonian’s District
Court Petition for lack of jurisdiction. The District Court’s
dismissal was, by default, without prejudice. Accordingly,
barring the discovery of new facts, the District Court now has
jurisdiction to hear Ms. Mamigonian’s claim that USCIS
improperly denied her adjustment-of-status application on
nondiscretionary grounds. Given the amount of resources
that have already been expended on this case by the federal
courts, we assume that the government will delay further
removal efforts until Ms. Mamigonian has an opportunity to
seek relief from the District Court on the basis indicated.
AFFIRMED.