Unreported / Non-Citable
Background
Dr. Michael De Rooij and Nicholas Frois appealed from the Central District of California, where the district court dismissed their Administrative Procedure Act challenge for lack of subject-matter jurisdiction. The challenge concerned U.S. Citizenship and Immigration Services’ denial of Frois’s applications for adjustment of status and the dismissal of Frois’s motion to reopen or reconsider. The Ninth Circuit had jurisdiction over the appeal under 28 U.S.C. § 1291 and ultimately affirmed.
USCIS’s denial rested in part on a factual finding that Frois had a prior fraudulent marriage, making him inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), and in part on the agency’s decision not to favorably exercise discretion. The appellants argued that the visa-allocation provision for follow-to-join derivative spouses required USCIS to grant adjustment, and they also argued that USCIS legally erred by treating the applications as filed under § 1255(a) rather than § 1255(i).
The memorandum is marked not for publication and therefore is not precedent except as provided by Ninth Circuit Rule 36-3. The panel decided the case without oral argument.
The Court’s Holding
The panel first held that 8 U.S.C. § 1252(a)(2)(B)(i) barred district-court review. Relying on Patel v. Garland, the court explained that the bar reaches both the ultimate denial of relief and underlying factual determinations, so it covered USCIS’s fraudulent-marriage finding and discretionary denial. Frois’s absence from removal proceedings, and his resulting present inability to file a petition for review, did not create district-court jurisdiction under Cabello Garcia v. USCIS. If removal proceedings occur later, he may pursue administrative review and, if relief is denied, raise legal and constitutional claims through a petition for review to the appropriate court of appeals.
Independently, the panel held that § 1252(a)(2)(B)(ii) precluded review because adjustment of status is a discretionary form of relief. The court rejected the follow-to-join argument for three reasons: the jurisdictional bar applies regardless of whether the judgment is discretionary; § 1153 governs allocation of immigrant visas rather than adjustment of status; and § 1255 expressly makes adjustment discretionary. Although Frois might share his husband’s visa-eligibility status under § 1153(d), an approved visa petition does not automatically entitle a noncitizen to adjustment; the applicant must also be admissible and receive a favorable exercise of discretion.
Finally, the panel held that USCIS’s citation to § 1255(a) instead of § 1255(i) was immaterial. Applicants under either subsection must satisfy the same visa-eligibility, admissibility, and immediate-visa-availability criteria, and applications under either subsection face the same jurisdictional barriers. Even if the mistaken citation were legal error, it would remain unreviewable because Frois was not petitioning for review from a final removal order. Because the district court lacked jurisdiction, the Ninth Circuit affirmed the dismissal.
Key Takeaways
- The adjustment-of-status jurisdictional bar extends to both USCIS’s ultimate denial and its underlying factual finding concerning Frois’s prior marriage.
- A noncitizen’s current inability to seek appellate review because removal proceedings have not begun does not create district-court jurisdiction.
- Derivative visa eligibility under § 1153(d) does not eliminate the separate admissibility and favorable-discretion requirements for adjustment of status.
- USCIS’s citation to § 1255(a) instead of § 1255(i) was immaterial because both routes impose the same relevant eligibility requirements and jurisdictional restrictions.
- The unpublished memorandum affirmed dismissal for lack of jurisdiction without deciding the merits of Frois’s adjustment applications.
Why It Matters
The decision applies the Ninth Circuit’s broad reading of the adjustment-of-status review bar to an agency decision made outside removal proceedings. It distinguishes visa eligibility from the additional requirements for adjustment and treats the agency’s incorrect statutory citation as immaterial rather than as a reviewable legal error.
The disposition leaves Frois with the possibility of pursuing his claims through removal proceedings and a later petition for review if administrative relief is denied. Because the memorandum is not for publication, it is not precedent except as permitted by Ninth Circuit Rule 36-3.