Nagendra Nakka v. Uscis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAGENDRA KUMAR NAKKA; No. 22-35203

NITHEESHA NAKKA; SRINIVAS

THODUPUNURI; RAVI VATHSAL D.C. No. 3:19-cv-

THODUPUNURI; RAJESHWAR 02099-YY

ADDAGATLA; VISHAL

ADDAGATLA; SATYA VENU

BATTULA; SANDEEP BATTULA; OPINION

SIVA PEDDADA; PAVANI

PEDDADA; VENKATA PEDDADA;

ABIGAIL EDWARDS; MIRIAM

EDWARDS-BUDZADZIJA,

individually and on behalf of all others

similarly situated,

Plaintiffs-Appellants,

v.

UNITED STATES CITIZENSHIP

AND IMMIGRATION SERVICES;

UNITED STATES DEPARTMENT

OF STATE,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Youlee Yim You, Magistrate Judge, Presiding

2 NAKKA V. USCIS

Argued and Submitted February 7, 2023

Portland, Oregon

Filed August 6, 2024

Before: Milan D. Smith, Jr., Danielle J. Forrest, and

Jennifer Sung, Circuit Judges.

Opinion by Judge Sung;

Concurrence by Judge Forrest

SUMMARY *

Immigration

In an action in which Plaintiffs challenged certain

immigration policies in district court, the panel vacated the

district court’s order granting Defendants’ motion to dismiss

for failure to state a claim, and remanded, holding that the

district court lacked jurisdiction over most of Plaintiffs’

claims because they were not ripe.

Plaintiffs in this putative class action are Indian

nationals, who have long resided in the United States on

nonimmigrant work visas, and their children, who are

derivative beneficiaries of their parents’ visas. Plaintiffs

seek to adjust their status to permanent resident, and

challenged certain generally applicable policies that

Defendants—U.S. Citizenship and Immigration Services

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NAKKA V. USCIS 3

(“USCIS”) and the U.S. Department of State—use to

determine eligibility of derivative beneficiaries.

The Government argued that the plain language of 8

U.S.C. § 1252(a)(2)(B)(i), which limits federal court review

of certain forms of discretionary immigration relief—

including adjustment of status—combined with the rationale

of Patel v. Garland, 596 U.S. 328 (2022), compel the

conclusion that § 1252(a)(2)(B)(i) strips federal courts of

jurisdiction over Plaintiffs’ claims. The panel disagreed,

concluding that § 1252(a)(2)(B)(i) does preclude review of

the denial of an enumerated form of relief (i.e, the denial of

adjustment of status), but does not strip federal district courts

of jurisdiction to hear Plaintiffs’ collateral challenges to

generally applicable policies and procedures.

However, the panel concluded that—with the exception

of one Plaintiff—Plaintiffs’ claims are not ripe because

Plaintiffs have not applied for adjustment of status, and

USCIS has not denied their applications based on the

challenged policies. Following Supreme Court precedent,

the panel explained that Plaintiffs’ claims would ripen only

once they took the affirmative step of applying and having

their path blocked by the challenged policies.

As to one Plaintiff, Peddada, who did apply for

adjustment of status and whose application USCIS denied,

the panel concluded that she could establish

ripeness. However, the panel concluded that

§§ 1252(a)(2)(B)(i) and (D) (allowing limited review of

questions of law and constitutional claims raised in a petition

for review of an order of removal) channel review of her

legal and constitutional challenges into a petition for review

from a final order of removal. The panel recognized that

individuals like Peddada—who have not violated any

4 NAKKA V. USCIS

immigration laws— must violate the law to render

themselves removable in order to obtain judicial review.

Finally, the panel noted that its interpretation of

§ 1252(a)(2)(B)(i)’s scope is consistent with opinions with

the court’s sister circuits.

Concurring in part and concurring in the judgment,

Judge Forrest agreed with the majority in its ripeness

determinations and its conclusion that §§ 1252(a)(2)(B)(i)

and (D) channel Peddada’s claims through this court to a

petition for review. However, Judge Forrest concluded that

there was no cause in this case to address whether

§ 1252(a)(2)(B)(i) strips jurisdiction over general challenges

to USCIS’s policies and practices. Judge Forrest explained

that, because USCIS made an individualized determination

on Peddada’s application and applied the challenged policies

and practices directly to her, she can no longer be deemed to

assert any truly collateral claims.

COUNSEL

Brent W. Renison (argued), Parrilli Renison LLC, Portland,

Oregon, for Plaintiffs-Appellants.

Victor M. Mercado-Santana (argued), Trial Attorney, Civil

Division, Office of Immigration Litigation; Samuel P. Go,

Assistant Director; William C. Peachey, Director; Office of

Immigration Litigation; Brian M. Boynton, Principal Deputy

Assistant Attorney General, Civil Division; United States

Department of Justice; for Defendants-Appellees.

Laura K. McNally and Nicole A. Tavers, Loeb & Loeb LLP,

La Grange, Illinois; Peter S. Margulies, Roger Williams

NAKKA V. USCIS 5

University School of Law, Bristol, Rhode Island; for Amicus

Curiae Immigration Law Professors.

Matt Adams, Glenda M. Aldana Madrid, Leila Kang, and

Aaron Korthuis, Northwest Immigrant Rights Project,

Seattle, Washington; Mary A. Kenney and Kristin Macleod-

Ball, National Immigration Litigation Alliance, Brookline,

Massachusetts; for Amici Curiae National Immigration

Litigation Alliance and Northwest Immigrant Rights Project.

OPINION

SUNG, Circuit Judge:

Plaintiffs in this putative class action are Indian

nationals, who have long resided in the United States on

nonimmigrant work visas, and their children, who are

derivative beneficiaries of their parents’ visas. Plaintiffs seek

to adjust their status to permanent resident through

employment-based immigrant visas, and their operative

complaint challenges certain generally applicable policies

that Defendants—U.S. Citizenship and Immigration

Services (“USCIS”) and the U.S. Department of State

(“DOS”)—use to determine whether dependent children

have “aged out” of eligibility to adjust their status as

derivative beneficiaries of their parents. Plaintiffs claim that

the challenged policies violate the Equal Protection

guarantee of the federal constitution and the Administrative

Procedure Act (“APA”).

The district court granted Defendants’ motion to dismiss

Plaintiffs’ complaint for failure to state a claim, with leave

to amend. Instead of amending their complaint, Plaintiffs

6 NAKKA V. USCIS

filed this appeal. While this case was pending, the Supreme

Court decided Patel v. Garland, 596 U.S. 328 (2022), which

held that, under 8 U.S.C. § 1252(a)(2)(B)(i), “[f]ederal

courts lack jurisdiction to review facts found as part of

discretionary-relief proceedings under § 1255 and the other

provisions enumerated in § 1252(a)(2)(B)(i).” 596 U.S. at

347. Defendants’ principal argument here is that

§ 1252(a)(2)(B)(i), as interpreted in Patel, also strips federal

courts of subject matter jurisdiction to hear Plaintiffs’

challenges to USCIS and DOS policies.

We conclude that this case must be dismissed because

we lack constitutional and statutory jurisdiction over

Plaintiffs’ claims challenging Defendants’ policies. We

disagree with the Government that the “plain language of the

statute and the rationale of Patel” compel the conclusion that

§ 1252(a)(2)(B)(i) strips federal courts of jurisdiction over

Plaintiffs’ claims. Rather, we conclude that

§ 1252(a)(2)(B)(i) does not categorically strip federal

district courts of jurisdiction to hear Plaintiffs’ claims, which

challenge generally applicable agency policies without

referring to or relying on denials of individual applications

for relief. However, we conclude that most of the named

plaintiffs’ claims are not ripe because they have not applied

for adjustment of status and USCIS has not denied their

applications based on the challenged policies. One named

plaintiff did apply for adjustment of status, and USCIS

denied her application based on the challenged policies.

Although she can rely on that denial to establish ripeness, we

agree with the Government that § 1252(a)(2)(B)(i) and (D)

channel review of her legal and constitutional challenges to

that denial into a petition for review from a final order of

removal. Accordingly, we vacate the district court order and

remand with instructions to dismiss for lack of jurisdiction.

NAKKA V. USCIS 7

I. BACKGROUND

The named plaintiffs are Indian nationals and their

dependent children who seek to adjust their status to lawful

permanent resident. Plaintiff parents came to the United

States on employment-based nonimmigrant visas, which

grant them lawful status for a temporary period. See 8 U.S.C.

§ 1101(a)(15)(H)(i)(b) (describing the so-called H-1B

nonimmigrant visa status). Plaintiff children entered the

country with their parents in a lawful derivative

nonimmigrant status. See 8 C.F.R. § 214.1(a)(1)(iii), (a)(2)

(describing the H-4 derivative nonimmigrant status for

dependents of H-1B visa holders).

Plaintiff parents’ employers subsequently petitioned

USCIS for immigrant visa classification for Plaintiff parents.

See 8 U.S.C. § 1153(b) (describing employment-based

immigrant visa categories); see also Zixiang Li v. Kerry, 710

F.3d 995, 997–98 (9th Cir. 2013) (summarizing petition

process). Plaintiff parents included their children as

derivative beneficiaries on these petitions. With approved

petitions, Plaintiff parents and children are eligible to receive

an immigrant visa and apply for “adjustment” of their

nonimmigrant status to that of lawful permanent residents.

See Babaria v. Blinken, 87 F.4th 963, 972 (9th Cir. 2023)

(explaining adjustment of status and the statutory criteria for

adjustment under 8 U.S.C. § 1255).

Individuals with approved petitions must wait for an

immigrant visa to become available before USCIS will allow

them to apply for adjustment. 8 U.S.C. § 1255(a) (requiring

“an immigrant visa [be] immediately available” before an

adjustment application is filed). Generally, employment-

based immigrant visas become available in the order in

which visa petitions are filed. 8 U.S.C. § 1153(e)(1). But

8 NAKKA V. USCIS

because visa demand exceeds annual statutory caps on the

number of visas that USCIS may issue, visa availability is

also subject to a formula that incorporates several

“interrelated factors,” including: (1) the “preference

category” or type of visa issued, and (2) the applicant’s

country of birth, also known as the country of

“charge[ability].” Babaria, 87 F.4th at 972–74 (explaining

numerical limitations and relevant factors). 1 DOS tracks visa

availability by means of a monthly “Visa Bulletin,” which

lays out—by preference category and country—when

immigrant visas are expected to become available to

applicants. See 8 C.F.R. § 245.1(g)(1). Here, Plaintiffs’ visas

are all chargeable to India. Historically, large numbers of

Indian nationals have applied for immigrant visas, and

consequently, visa wait times for Indians have lasted years—

if not decades, often exceeding wait times for other foreign

nationals. See Babaria, 87 F.4th at 973–75 (explaining how

this issue impacts Indian applicants). Plaintiffs’ individual

cases are no exception.

These long wait times create a potential problem for

Plaintiff children, who seek to adjust their status as the

derivative “child[ren]” of individuals “entitled to []

immigrant status.” 8 U.S.C. § 1153(d). Section 1101(b)(1)

defines “child” as an “unmarried person under twenty-one

years of age.” Because Plaintiffs have waited years for visas

to become available, Plaintiff children are at risk of losing

their derivative status by turning 21 and “aging out.” See

Scialabba v. Cuellar de Osorio, 573 U.S. 41, 45 (2014)

(plurality opinion) (explaining the aging-out problem).

1

With limited exceptions, immigrant visas for a given category are

“charged” to the country of the beneficiary’s birth. 8 U.S.C. § 1152(b).

NAKKA V. USCIS 9

To address the aging-out problem faced by Plaintiff

children and others similarly situated, Congress passed the

Child Status Protection Act (“CSPA”), Pub. L. No. 107–208,

116 Stat. 927 (2002). CSPA provides a formula that partially

tolls a child’s age for immigration purposes. The statute

states that:

a determination of whether an alien satisfies

the age requirement [at § 1101(b)(1), the

statutory definition of “child”] . . . shall be

made using–

(A) the age of the alien on the date on which

an immigrant visa number becomes

available for such alien (or, in the case of

subsection (d), the date on which an

immigrant visa number became available

for the alien’s parent), but only if the alien

has sought to acquire the status of an alien

lawfully admitted for permanent residence

within one year of such availability;

reduced by

(B) the number of days in the period during

which the applicable petition described in

paragraph (2) was pending.

8 U.S.C. § 1153(h)(1). In other words, a child applicant’s

“CSPA age is calculated by subtracting the number of days

the petition on which the applicant seeks to adjust status was

pending (pending time) from the applicant’s age on the date

the immigrant visa becomes available to the applicant (age

at time of visa availability).” 7 USCIS Policy Manual, ch. 7,

pt. F(2). Thus, the date on which an immigrant visa becomes

available to an applicant affects their CSPA age.

10 NAKKA V. USCIS

Over time, USCIS has adopted different methods for

determining when an immigrant visa becomes available to

an applicant. At issue in this case is the method the agency

employed beginning in 2018. See USCIS, Policy Alert:

Child Status Protection Act, No. PA-2018-05 (May 23,

2018) (hereinafter “2018 USCIS CSPA Policy”) (modifying

the USCIS Policy Manual and explaining how USCIS

calculates CSPA age using the DOS Visa Bulletin). 2

II. PROCEDURAL HISTORY

Plaintiffs filed a putative class action against USCIS and

DOS in district court, challenging the policies that

Defendants use to determine immigrant visa availability and

CSPA age. First, Plaintiffs claim that Defendants’ use of the

national origin-based Visa Bulletin chart to determine

applicants’ ages for CSPA purposes violates equal

protection. Plaintiffs contend that use of national origin

classifications in the Visa Bulletin “lacks a rational basis and

cannot be justified by a legitimate government interest.”

Second, Plaintiffs challenge the 2018 USCIS CSPA Policy3

2

This case was initially filed challenging the 2018 USCIS CSPA Policy.

USCIS modified this policy after oral argument. See USCIS, Policy

Alert: Age Calculation under Child Status Protection Act, No. PA-2023-

02 (Feb. 14, 2023) (describing changes to 2018 USCIS CSPA Policy).

The parties dispute whether the change moots Plaintiffs’ claims. Because

we hold the district court lacked jurisdiction to hear Plaintiffs’ case on a

different ground, we do not address mootness.

3

Plaintiffs also challenge “the Department of State’s Foreign Affairs

Manual, at 9 FAM 502.1-1(D)(4) Calculation of CSPA Age for

Preference Categories and Derivative Petitions, with a revision date of

July 29, 2019.” Because we do not address the merits of Plaintiffs’

challenge, and Plaintiffs appear to challenge the same policy in two

different agency documents, we simply refer to the 2018 USCIS CSPA

Policy.

NAKKA V. USCIS 11

as arbitrary and capricious under the APA. Plaintiffs also

argue that Defendants violated the APA by adopting the

2018 policy without engaging in a formal rulemaking

process. 4

Defendants moved to dismiss Plaintiffs’ second

amended complaint (SAC) for lack of subject matter

jurisdiction (arguing Plaintiffs’ claims were not ripe) and for

failure to state a claim. The district court adopted the

magistrate judge’s recommendation that both claims be

dismissed for failure to state a claim and dismissed the SAC

without prejudice after Plaintiffs did not seek to amend

within 14 days of the order adopting the findings and

recommendations. Plaintiffs then filed the instant appeal.

While this appeal was pending, the Supreme Court

decided Patel v. Garland, 596 U.S. 328 (2022). On appeal,

Defendants argued for the first time in their Answering Brief

that under Patel’s interpretation of 8 U.S.C.

§ 1252(a)(2)(B)(i), federal courts lack jurisdiction to hear

this case. Following oral argument, we ordered supplemental

briefing on the § 1252(a)(2)(B)(i) jurisdictional issue and

invited participation by amici. 5

III. ANALYSIS

A

Title 8, section 1252, titled “Judicial review of orders of

removal,” provides the statutory scheme that delineates

4

Although these appear to be two separate APA claims—one arbitrary

and capricious claim and one rulemaking claim—they are styled as a

single “Second Claim for Relief.”

5

We have considered the arguments raised by amici, but for simplicity,

we refer to these jointly as arguments raised by “Plaintiffs.”

12 NAKKA V. USCIS

federal court jurisdiction in most immigration cases.

Section 1252(a)(2) identifies certain “[m]atters not subject

to judicial review.” As relevant here, § 1252(a)(2)(B) states:

(B) Denials of discretionary relief

Notwithstanding any other provision of law

(statutory or nonstatutory) . . . and regardless

of whether the judgment, decision, or action

is made in removal proceedings, no court

shall have jurisdiction to review--

(i) any judgment regarding the granting of

relief under section 1182(h), 1182(i),

1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action 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, other

than the granting of relief under section

1158(a) of this title.

Subsection (B)(i) cross references various forms of

discretionary relief available to qualifying noncitizens,

including: (1) certain waivers of inadmissibility (§ 1182(h)

and (i)); (2) cancellation of removal (§ 1229b); (3) voluntary

departure (§ 1229c); and (4) adjustment of status (§ 1255).

When interpreting similar jurisdiction-stripping

provisions of the immigration statutory scheme, the

Supreme Court has long distinguished between the “direct

review of individual denials” of applications and “general

collateral challenges to [unlawful] practices and policies.”

NAKKA V. USCIS 13

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492

(1991); see also Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43,

56 (1993) (hereinafter “CSS”) (distinguishing between

challenges to “the denial of any individual application” and

challenges to the “legality of a regulation”).

Generally, Plaintiffs’ claims here, like those at issue in

McNary and CSS, challenge “the legality of [agency

policies] without referring to or relying on the denial of any

individual application.” CSS, 509 U.S. at 56. The

Government contends that § 1252(a)(2)(B)(i) strips

jurisdiction over Plaintiffs’ claims because it precludes

review of both individual application denials and general

collateral challenges to agency policies. For the following

reasons, we conclude that § 1252(a)(2)(B)(i) strips

jurisdiction over the former, but not the latter.

1

Because the Government primarily argues that Patel

compels the conclusion that the scope of § 1252(a)(2)(B)(i)

includes collateral policy claims, we begin by explaining

why we disagree with the Government’s reading of Patel.

In Patel, the only issue presented was whether, on Patel’s

petition for review of a final removal order,

§ 1252(a)(2)(B)(i) stripped the court of appeals of

jurisdiction to review factual findings made by the

immigration judge (“IJ”). 596 U.S. at 333–36. The IJ had

denied Patel’s application for adjustment of status based on

these factual findings and issued a removal order. Id. at 334–

35. Before the Court, the parties advanced three different

interpretations of § 1252(a)(2)(B)(i): Patel argued that the

statute precluded review of only the ultimate decision to

deny adjustment of status, not subsidiary decisions regarding

the applicant’s eligibility to be considered for adjustment of

14 NAKKA V. USCIS

status. Id. at 338. The Government advanced a slightly

different interpretation, arguing that the statute precluded

review of all discretionary decisions (ultimate and

subsidiary). Id. at 337–38. And the Court-appointed amicus

argued that the statute precluded review of the ultimate and

subsidiary decisions, whether discretionary or not—

including factual findings. Id. at 337.

Considering the statutory text, the Court interpreted the

term “any judgment” to mean “judgments ‘of whatever kind’

under § 1255, not just discretionary judgments or the last-in-

time judgment.” Id. at 338 (quotation omitted). The Court

also interpreted the term “regarding” to mean “relating to.”

Id. at 338–39. This meant that “§ 1252(a)(2)(B)(i)

encompasses not just ‘the granting of relief’ but also any

judgment relating to the granting of relief,” which “plainly

includes factual findings.” Id. at 339 (emphasis in original).

Further, the Court noted that § 1252(a)(2)(D) “preserves

[judicial] review of constitutional claims and questions of

law” upon a petition for review and reasoned that, because

Congress made such legal questions an exception to

§ 1252(a)(2)(B), “it must have left something within the

rule,” which would be questions of fact. Id. (emphasis in

original).

Significantly, all the types of “judgments” that the Patel

Court considered and ultimately concluded are encompassed

by § 1252(a)(2)(B)(i) are judgments that an agency

adjudicator makes when deciding whether to grant or deny

an individual application for discretionary relief. Patel did

not involve a collateral challenge to generally applicable

agency policy or procedure. Thus, although Patel makes

clear that § 1252(a)(2)(B)(i) covers every type of

“judgment” an adjudicator makes when deciding whether to

grant an individual application, the Court neither considered

NAKKA V. USCIS 15

nor decided whether it also encompasses generally

applicable agency policies and procedures.

Further, in Patel, the Court stated that § 1252(a)(2)(B)(i)

means that “a noncitizen ‘may not bring a factual challenge

to orders denying discretionary relief, including . . .

adjustment of status.’” Id. at 340 (quoting Nasrallah v. Barr,

590 U.S. 573, 586 (2020)) (emphasis added). And the Court

concluded its opinion by stating that “[f]ederal courts lack

jurisdiction to review facts found as part of discretionary-

relief proceedings under § 1255 and the other provisions

enumerated in § 1252(a)(2)(B)(i).” Id. at 347. While those

descriptions of § 1252(a)(2)(B)(i) make clear that it limits

review when an individual challenges an order denying their

application for discretionary relief, they say nothing about

district court jurisdiction to review collateral challenges to

generally applicable agency policies and procedures.

Because Patel did not decide the statutory interpretation

issue presented here, we turn to the statutory text.

2

In McNary and CSS, the Court interpreted comparable

statutes and concluded that they strip jurisdiction over

denials of individual applications for relief, but not “general

collateral challenges to unconstitutional practices and

policies used by the agency in processing applications.”

McNary, 498 U.S. at 492. In McNary, the Court interpreted

8 U.S.C. § 1160(e), which provided that “[t]here shall be no

administrative or judicial review of a determination

respecting an application for adjustment of status under this

section except in accordance with this subsection.”

§ 1160(e)(1) (emphasis omitted); see McNary, 498 U.S. at

491–92.

16 NAKKA V. USCIS

The McNary Court concluded that § 1160(e)(1) did not

strip district court jurisdiction over general policy claims

based on several aspects of the statutory text and context.

First, the term “‘a determination’ describe[d] a single act

[and not] a group of decisions or a practice or procedure

employed in making decisions.” McNary, 498 U.S. at 491–

92. Second, the reference to “judicial review of such a

denial” in § 1160(e)(3) “ma[de] clear that the earlier

reference to ‘a determination respecting an application’

describe[d] the denial of an individual application.” Id. at

492 (emphasis in original). Third, a related provision,

§ 1160(e)(3)(B), limited judicial review to the

administrative record, which “incorporate[d] an assumption

that the limited review provisions of [§ 1160] appl[ied] only

to claims that have been subjected to administrative

consideration and that have resulted in the creation of an

adequate administrative record.” Id. at 493. And fourth, the

Court noted that, if Congress had “intended [§ 1160(e)] to

encompass challenges to [broader] procedures and practices,

it could easily have used broader statutory language,” but it

did not. Id. at 494 (contrasting the text of § 1160(e)(1) with

“the more expansive language” in § 1329 and 38 U.S.C.

§ 211(a)). 6

Although § 1252(a)(2)(B)(i) is not identical to the

statutes that the Court considered in McNary and CSS, its

text and context are similar in key respects. First, the

reference to “the granting of relief under [the enumerated

sections]” more likely describes a single act of granting or

denying an individual application for relief. Although the

6

In CSS, the Court considered a similar jurisdiction-stripping statute,

§ 1255a(f)(1), and affirmed McNary’s statutory interpretation. CSS, 509

U.S. at 55–56.

NAKKA V. USCIS 17

statutory text is not a beacon of clarity, a policy or procedure

would not typically “grant” relief without case-specific

adjudication. Second and similarly, the heading of

§ 1252(a)(2)(B), which refers to “[d]enials of discretionary

relief,” suggests that § 1252(a)(2)(B)(i)’s reference to “any

judgment regarding the granting of relief” refers to the

adjudication of individual applications for relief. Third, the

statutory scheme strips district court jurisdiction to review

such denials (§ 1252(a)(2)(B)), channels review to the

circuit courts (§ 1252(a)(2)(B), (D)), and limits judicial

review to the administrative record (§ 1252(b)(4)(A)). Like

the schemes considered in McNary and CSS, this scheme

incorporates the assumption that there will be an

administrative record of the judgment regarding the granting

of relief.

Fourth, Congress could have used broader language to

encompass collateral policy and procedure claims, but it did

not. Cf. McNary, 498 U.S. at 494 (finding § 1160(e)’s text

lacked broad language found in comparators). Indeed, the

absence of broader language is even more significant here

than in McNary, because when Congress enacted

§ 1252(a)(2)(B)(i) in 1996, 7 it “was legislating against the

backdrop of recent Supreme Court law,” namely, McNary.

See J.E.F.M. v. Lynch, 837 F.3d 1026, 1034 (9th Cir. 2016).

As we recognized in J.E.F.M., the McNary Court provided

Congress with a “blueprint for how [to] draft a jurisdiction-

channeling statute that would cover not only individual

challenges to agency decisions, but also broader challenges

to agency policies and practices.” Id. Specifically, the Court

explained that Congress could preclude review of challenges

7

See Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”) § 306, Pub. L. No. 104–208, 110 Stat. 3546 (1996).

18 NAKKA V. USCIS

to agency policies and practices by expressly “channeling

into the [statute’s] special review procedures ‘all causes . . .

arising under any of the provisions’ of the . . . program [at

issue],” or “referring to review ‘on all questions of law and

fact’ under the . . . program.” McNary, 498 U.S. at 494. Thus,

in J.E.F.M., we concluded that another jurisdiction-stripping

provision enacted in 1996, § 1252(b)(9), covered challenges

to practices and policies in part because its broad text “neatly

track[ed] the policy and practice jurisdiction-channeling

language suggested in McNary.” J.E.F.M., 837 F.3d at

1035. 8

But Congress did not follow the McNary blueprint when

it drafted § 1252(a)(2)(B)(i). Nor did Congress follow the

McNary blueprint when it amended § 1252(a)(2)(B) in 2005.

See REAL ID Act of 2005 §§ 101, 106, Pub. L. No. 109–13,

119 Stat. 231 (2005). Thus, Congress has clearly indicated

that it did not intend § 1252(a)(2)(B)(i) to preclude district

court jurisdiction over collateral policy and procedure

claims.

Fifth, Congress did not explicitly strip jurisdiction over

policy and procedure claims in § 1252(a)(2)(B)(i), even

though it did so in § 1252(a)(2)(A)(iv), which was enacted

at the same time as the current version of § 1252(a)(2)(B)(i).

See 8 U.S.C. § 1252(a)(2)(A)(iv) (“[N]o court shall have

jurisdiction to review . . . procedures and policies adopted by

the Attorney General to implement the provisions of section

8

Section 1252(b)(9), the statutory provision at issue in J.E.F.M., states:

“Judicial review of all questions of law and fact, including interpretation

and application of constitutional and statutory provisions, arising from

any action taken or proceeding brought to remove an alien from the

United States under this subchapter shall be available only in judicial

review of a final order[.]”

NAKKA V. USCIS 19

1225(b)(1) of this title.”); Mendoza-Linares v. Garland, 51

F.4th 1146, 1153–55 (9th Cir. 2022) (describing the

operation of § 1252(a)(2)(A)); IIRIRA § 306 (enacting

§ 1252(a)(2)(A)(iv)). Because Congress explicitly stripped

jurisdiction to review agency policy policies and procedures

in § 1252(a)(2)(A)(iv) but not in § 1252(a)(2)(B)(i), we

presume that Congress did not intend for the latter provision

to preclude review of agency policies and procedures. Nken

v. Holder, 556 U.S. 418, 430 (2009) (“[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.” (quoting INS v.

Cardoza–Fonseca, 480 U.S. 421, 432 (1987))).

Finally, Congress’s use of the term “judgment” is

additional, albeit weaker, textual evidence that it intended

§ 1252(a)(2)(B)(i) to encompass decisions the agency makes

when adjudicating an individual application for relief—but

not generally applicable policies or procedures. In Patel, the

Court approvingly cited two dictionary definitions of

“judgment”: (1) Webster’s Third New International

Dictionary 1223 (1993), which defines “judgment” as “a

formal utterance or pronouncing of an authoritative opinion

after judging,” or “an opinion so pronounced”; and (2) the

Oxford English Dictionary 294 (2d ed. 1989), which defines

“judgment” as “[t]he pronouncing of a deliberate opinion

upon a person or thing, or the opinion pronounced.” See 596

U.S. at 337–38. 9 Although these definitions are also

9

See also Brief for Court-Appointed Amicus Curiae at 23, Patel v.

Garland, 596 U.S. 328 (2022) (No. 20-979), 2021 WL 4942180 at *23

(referring to judgment as the “act of determining, as in courts, what is

conformable to law and justice”).

20 NAKKA V. USCIS

somewhat ambiguous, they at least suggest “judgment”

refers to a decision that is made when an adjudicator, for

example, applies law to particular facts—that is, when an

agency processes a particular person’s application for

relief—and not to broad agency policies or procedures. 10

We are further persuaded that “judgment” refers to a

decision in an individual case by the language in

§ 1252(a)(2)(B), which lists three terms— “judgment,

decision, or action.” There are two possible ways to interpret

this list: (1) these terms are interchangeable, or (2) each term

means something different. In this context, each term must

mean something different because Congress used the terms

differently in § 1252(a)(2)(B)(i) and (ii), and we must read

clause (i) and clause (ii) “harmoniously.” Kucana v. Holder,

558 U.S. 233, 246–47 (2010). Compare § 1252(a)(2)(B)(i)

(“any judgment regarding the granting of relief”), with

§ 1252(a)(2)(B)(ii) (“any other decision or action of the

Attorney General or the Secretary of Homeland Security”).

Our conclusion that “judgment” in clause (i) means

something different from “other decision or action” in clause

(ii) is consistent with the Court’s interpretations of

§ 1252(a)(2)(B) in Kucana and Patel. In Kucana, the Court

held that clause (i) “enumerat[es] . . . administrative

judgments that are insulated from judicial review” whereas

10

Other statutory provisions relied on by Patel also confirm that the

scope of § 1252(a)(2)(B)(i) is limited to judgments made in adjudicatory

proceedings. For example, the Court noted that “[t]he Government bears

the burden of proving removability by clear and convincing evidence,

while an applicant bears the burden of establishing eligibility for

discretionary relief.” Id. at 345 (citing 8 U.S.C. § 1229a(c)(3)(A) and

(4)(A)). The Government and an “applicant” only bear these burdens

when the agency is adjudicating an individual’s application for relief—

not when plaintiffs challenge generally applicable policies or procedures.

NAKKA V. USCIS 21

“clause (ii) [is] a catchall provision covering ‘any other

decision [or action].’” 558 U.S. at 246 (quoting

§ 1252(a)(2)(B)(i) & (ii)). Further, while the Court explained

that the three terms “are of a like kind,” it also indicated that

“judgment” is a “specific” term, and “decision” is a “general

term.” Id. at 247–48 (citing Hall Street Assocs., L.L.C. v.

Mattel, Inc., 552 U.S. 576, 586 (2008)). And in Patel, the

Court noted that “judgment” is defined as an “authoritative

decision.” 596 U.S. at 337–38.

Together, Kucana, Patel, and the statutory text compel

the conclusion that “judgment” is a specific type of decision

and that there are other types of decisions that are not

“judgments.” Thus, we conclude that “any judgment

regarding the granting of relief” refers to the authoritative

decisions an agency makes when adjudicating an individual

application for discretionary relief. And “other decision or

action” more broadly includes other types of agency

decisions—including those that may not qualify as

“judgments.” 11

3

The Government argues for a maximalist interpretation

of § 1252(a)(2)(B)(i). In its view, clause (i) encompasses any

11

The dictionary definitions of “decision” and “action” further support

this conclusion, because those terms are defined more broadly than

“judgment.” See, e.g., Webster’s Third New International Dictionary 585

(1993) (defining “decision” as “a determination arrived at after

consideration”); 4 Oxford English Dictionary 332 (2d ed. 1989)

(defining “decision” as “[t]he final and definite result of examining a

question”); Webster’s Third New International Dictionary 21 (1993)

(defining “action” as “an act or decision by an executive or legislative

body”); 1 Oxford English Dictionary 127 (2d ed. 1989) (defining

“action” as “[t]he process or condition of acting or doing (in the widest

sense)”).

22 NAKKA V. USCIS

type of agency action—both judgments made in individual

cases and generally applicable policies and procedures—

related to the enumerated forms of discretionary relief,

without limit. But the Government’s arguments for this

broad reading are unpersuasive.

The Government points to the “regardless” clause of

§ 1252(a)(2)(B), which states, in relevant part:

“Notwithstanding any other provision of law . . . and

regardless of whether the judgment, decision, or action is

made in removal proceedings, no court shall have

jurisdiction to review” the judgments, decisions, and actions

specified in clauses (i) and (ii). (Emphasis added.) The

Government argues that interpreting § 1252(a)(2)(B)(i)’s

reference to “any judgment regarding the granting of relief”

as encompassing only judgments that the agency makes in

granting or denying an individual application for relief

would render the “regardless” clause meaningless.

But the Government is incorrect. USCIS and the

Department of Homeland Security (“DHS”) grant or deny

individual applications for discretionary relief—and

therefore make judgments in adjudicating those

applications—outside “removal proceedings” in at least

three different circumstances.

First, when an individual who is lawfully present in the

United States pursuant to a valid visa applies for adjustment

of status under § 1255, that individual is not in removal

proceedings. That necessarily means that when USCIS

renders a “judgment” in deciding whether to grant or deny

NAKKA V. USCIS 23

that individual’s application for adjustment of status, that

judgment occurs outside “removal proceedings.” 12

Second, when an individual is removable, but the

government has not yet initiated removal proceedings

against them, they may ask DHS to grant them voluntary

departure “in lieu of being subject to [removal]

proceedings.” See 8 U.S.C. § 1229c(a). Although an IJ may

grant voluntary departure when an individual is in removal

proceedings, see, e.g., 8 U.S.C. § 1229c(b), only DHS may

grant voluntary departure when the individual is not yet in

(and is therefore outside) removal proceedings, see 8 C.F.R.

§ 240.25(a) (authorizing designated DHS officials to grant

voluntary departure before the start of proceedings).

Third, other forms of relief can be granted only by

USCIS or DHS, not an IJ, outside removal proceedings. For

example, only USCIS or DHS can grant relief to arriving

aliens 13 who are in removal proceedings. See 8 C.F.R.

12

Plaintiffs also argue that the statutory reference to “relief under section

. . . 1255” does not include adjustment of status applications filed by

individuals who are lawfully present, because those individuals are not

subject to removal, and therefore, they are not applying for “relief from

removal.” We address that argument below.

13

Arriving aliens are defined as “applicant[s] for admission coming or

attempting to come into the United States at a port-of-entry.” 8 C.F.R.

§ 1.2. They remain “arriving aliens” even after they are allowed to entry

on a temporary parole. Id. USCIS has jurisdiction to consider the

application of an arriving alien, even when they are in removal

proceedings. 8 C.F.R. §§ 1245.2(a)(1)(i), (ii), 245.2(a)(1). In such

situations, the arriving alien may ask an IJ for a continuance while

USCIS adjudicates their application. See, e.g., Singh v. Holder, 771 F.3d

647, 653 (9th Cir. 2014) (holding that the Board of Immigration Appeals

has authority to reopen an arriving alien’s case so he could apply for

24 NAKKA V. USCIS

§ 1245.2(a)(1)(i), (ii); see also Kalilu v. Mukasey, 548 F.3d

1215, 1217–18 (9th Cir. 2008) (observing that even when

arriving aliens are in removal proceedings, they must file

their adjustment application with USCIS). 14

Without the “regardless” clause, § 1252(a)(2)(B)(i)

could be interpreted as encompassing only judgments

regarding the granting of discretionary relief that are made

by an IJ in removal proceedings. But, because of the

“regardless” clause, § 1252(a)(2)(B)(i) must be interpreted

as also encompassing judgments regarding the granting of

discretionary relief that are made by USCIS and DHS

outside removal proceedings. And the “regardless” clause

serves that purpose, even if § 1252(a)(2)(B)(i) encompasses

only the judgments made by an IJ, USCIS, or DHS when

deciding whether to grant an individual application for relief.

The Government also points to the word “regarding” in

the phrase “any judgment regarding the granting of relief.”

See 8 U.S.C. § 1252(a)(2)(B)(i). And it correctly points out

that Patel read “regarding” as having a “broadening effect”

that encompasses “not only [the provision’s] subject but also

matters relating to that subject.” Patel, 596 U.S. at 338–39

adjustment before USCIS). If the application is granted, then removal

proceedings may be terminated. See 8 C.F.R. § 1240.12(c) (IJ may order

removal “or the termination of the proceedings, or other such disposition

of the case as may be appropriate”).

14

And of course, under § 1252(a)(2)(B)(ii), there are numerous other

“decisions or actions” that DHS and USCIS make outside removal

proceedings, which give further meaning to the “regardless” clause. See,

e.g., Kucana, 558 U.S. at 248 (enumerating various decisions or actions

covered by (B)(ii), which occur outside removal proceedings); Poursina

v. USCIS, 936 F.3d 868, 870 (9th Cir. 2019) (holding that (B)(ii) applies

to certain national interest waivers, which are granted outside removal

proceedings).

NAKKA V. USCIS 25

(quotation omitted). Because of that broadening effect, Patel

rejected interpretations that would have narrowed

§ 1252(a)(2)(B)(i)’s scope to encompass only the agency’s

ultimate decision to deny an application for discretionary

relief, or to exclude the agency’s predicate factual findings.

Id. Patel, however, did not hold that “regarding” should be

construed as broadening the scope of § 1252(a)(2)(B)(i) to

the furthest stretch of its indeterminacy, without limit.

The Court has repeatedly cautioned against reading

terms like “relate to” or “regarding” too broadly. See, e.g.,

Dubin v. United States, 599 U.S. 110, 119 (2023). As the

Court explained in Dubin, “[i]f ‘relate to’ were taken to

extend to the furthest stretch of its indeterminacy, then for

all practical purposes there would be no limits, as really,

universally, relations stop nowhere.” Id. (cleaned up)

(quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans

v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)). “That the

phrase refers to a relationship or nexus of some kind is clear.

Yet the kind of relationship required, its nature and strength,

will be informed by context.” Id. (internal citation omitted).

Thus, “[i]n deciding between the parties’ readings, one

limited and one near limitless, precedent and prudence

require a careful examination of [the statute]’s text and

structure.” Id. at 118.

Here, as in Dubin, careful examination of

§ 1252(a)(2)(B)(i)’s text and context makes clear that its

scope is broad, as Patel held, but not limitless, as the

Government now contends. As discussed above, Congress

did not draft § 1252(a)(2)(B)(i) to reach as broadly as it

could have. Even though Congress had the benefit of the

McNary blueprint for encompassing collateral policy and

procedure claims, and even though Congress followed that

blueprint when it drafted § 1252(b)(9), Congress did not

26 NAKKA V. USCIS

follow the McNary blueprint when it drafted

§ 1252(a)(2)(B)(i). Rather, Congress used terms like

“judgment,” “the granting of relief under” specific statutes,

and “denials of discretionary relief,” which point towards

reading § 1252(a)(2)(B)(i) as precluding review of a

judgment an agency makes in the course of adjudicating an

individual application for relief, but not collateral actions

challenging general policies and procedures.

Thus, we conclude that § 1252(a)(2)(B)(i) does not strip

district courts of jurisdiction to hear collateral challenges to

Defendants’ generally applicable policies and procedures.

However, here, as in CSS, the statutory jurisdiction-stripping

provision is not the only jurisdictional hurdle Plaintiffs face.

Their “claims still must satisfy the jurisdictional and

justiciability requirements that apply in the absence of a

specific congressional directive.” CSS, 509 U.S. at 56. We

address the additional hurdles in the following section.

B

Where, as here, Plaintiffs request injunctive and

declaratory relief from the policies of administrative

agencies, courts “have been reluctant” to grant such requests

“unless [they] arise in the context of a controversy ‘ripe’ for

judicial resolution, that is to say, unless the effects of the

administrative action challenged have been felt in a concrete

way by the challenging parties.” CSS, 509 U.S. at 57

(cleaned up) (quoting Abbott Lab’ys v. Gardner, 387 U.S.

136, 140 (1967)). In some cases, “the promulgation of a

regulation will itself affect parties concretely enough to

satisfy this requirement,” for example, when it “present[s]

plaintiffs with the immediate dilemma to choose between

complying with newly imposed, disadvantageous

NAKKA V. USCIS 27

restrictions and risking serious penalties for violation.” Id.

(citations omitted).

However, the policies challenged in this case, like the

regulations challenged in CSS, “impose no penalties for

violating any newly imposed restriction, but [instead] limit

access to a benefit.” Id. at 58. Where challenged policies

only limit access to an immigration benefit that is created by

statute “but not automatically bestowed on eligible aliens,”

the promulgation of the challenged policies does not itself

confer a ripe claim. Id. Rather, a plaintiff’s “claim would

ripen only once he took the affirmative steps that he could

take before the [agency] blocked his path by applying the

[challenged policies] to him.” Id. at 59. “Ordinarily . . . that

barrier would appear when the [agency] formally denied the

[plaintiff]’s application on the ground that the [challenged

policies] rendered him ineligible for [the benefit sought].”

Id. at 60. But, when the plaintiff seeks “to rely on the denial

of his application to satisfy the ripeness requirement,” and

the statute channels appeals from such denials into a limited

review scheme, then the plaintiff “would then still find

himself at least temporarily barred” by those channeling

provisions. Id. In that case, the “ripeness doctrine and the

[statute’s] jurisdictional provisions would thus dovetail

neatly.” Id.

In CSS, the plaintiffs had not taken all possible

affirmative steps before filing their complaint—meaning,

they had not filed and obtained formal denials of their

applications based on the challenged policies. See id. at 65

n.25. The plaintiffs had to obtain formal denials to establish

ripeness, unless they demonstrated that their circumstances

justified an exception. Id. at 59, 61. The Court identified at

least two circumstances that would justify making an

exception: first, the plaintiffs’ collateral claims would be

28 NAKKA V. USCIS

deemed ripe if they demonstrated that the statute’s “limited

[review] scheme would afford them inadequate review” of

their claims. See id. at 60–61 (citing McNary, 498 U.S. at

487). Second, the plaintiffs would not have to file

applications to establish ripeness if they demonstrated that

the agency would informally reject their applications at a

“prefiling” stage, under an agency practice referred to as

“front-desking.” Id. at 61–62. Here, only one of the named

Plaintiffs filed an application for adjustment of status. We

address ripeness as it relates first to the “non-filing

Plaintiffs” (Nitheesha Nakka, Ravi Thodupunuri, Vishal

Addagatla, and Venkata Peddada) and then to the one filing

Plaintiff (Pavani Peddada).

1

Most of the Plaintiffs have not submitted applications for

adjustment to USCIS, but they argue that both exceptions

identified in CSS apply. We disagree.

First, the non-filing Plaintiffs have not shown that their

collateral claims challenging USCIS policies “could receive

no practical judicial review within the scheme established by

[§ 1252].” Id. at 60–61. Unlike in McNary, the non-filing

Plaintiffs do not raise purely procedural claims concerning

how their applications would be processed. See 498 U.S. at

487–88 (describing plaintiffs’ challenge regarding their

inability to submit evidence, present witnesses, obtain

competent interpreters, and access recordings of their

interviews). Plaintiffs’ claims more closely resemble those

raised in CSS, where the plaintiffs disputed the legality of a

regulation that the agency would potentially apply to

determine an applicant’s eligibility for legalization. See 509

U.S. at 47–50, 58–59. Plaintiffs’ collateral policy claims

present questions of law that fall within the limited scope of

NAKKA V. USCIS 29

review provided for under § 1252(a)(2)(D). Further,

although § 1252(a)(2)(D) does not allow for review of

purely factual issues, Guerrero-Lasprilla v. Barr, 589 U.S.

221, 235 (2020), Plaintiffs have not identified any purely

factual issues that a court would need to resolve to

meaningfully review their claims. 15

Plaintiffs assert that the agency’s record on a petition for

review would be inadequate for meaningful review of their

claims. Considering the nature of their claims, we disagree.

The administrative record would include any USCIS or DHS

records related to their applications, and Plaintiffs do not

identify what additional documents they would need to

adjudicate their claims but could not introduce into the

record—either through admission into the record of a

removal hearing or judicial notice. Plaintiffs correctly note

that they would need to introduce the challenged agency

guidance manuals, but they do not explain why they could

not file these manuals before the immigration court, or

otherwise request that the IJ, or the court of appeals, take

notice of the guidance. See 8 C.F.R. § 1003.31 (allowing

parties to file documents before the immigration court);

Aguilar-Osorio v. Garland, 991 F.3d 997, 1000 (9th Cir.

2021) (noting that IJs may take administrative notice of

government records); Henriquez-Rivas v. Holder, 707 F.3d

1081, 1092 (9th Cir. 2013) (noting that this court may take

judicial notice on a petition for review). 16

15

Plaintiffs maintain that they meet all requirements for adjustment of

status and that USCIS would grant their applications but for the policies

they contend are legally invalid.

16

Additionally, we conclude that USCIS’s orders denying Plaintiffs’

applications based on the challenged policies, as well as Plaintiffs’

30 NAKKA V. USCIS

Second, the non-filing Plaintiffs have not shown that

USCIS would front-desk their applications based on the

challenged policies. 17 Although Plaintiffs allege that USCIS

would front-desk their applications, and we normally treat

all well-pleaded factual allegations in a complaint as true,

“we need not accept as true allegations that contradict

matters properly subject to judicial notice or by exhibit.”

Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d

1112, 1115 (9th Cir. 2014) (cleaned up). Here, we do not

accept the allegations regarding front-desking because,

during this litigation, Plaintiffs submitted a document to the

district court showing that USCIS did not front-desk Plaintiff

P. Peddada’s application. Specifically, Plaintiffs filed a copy

of USCIS’s written decision formally denying P. Peddada’s

application. This decision was not a “prefiling rejection,”

CSS, 509 U.S. at 61, but a “formal[] deni[al] . . . on the

ground that the [challenged policies] rendered [P. Peddada]

ineligible” for adjustment of status, id. at 60. Additionally,

the non-filing Plaintiffs allege that they are similarly situated

to P. Peddada and that USCIS would apply the same policies

to them. Accepting that USCIS would treat the non-filing

Plaintiffs like it treated P. Peddada, we must assume that

claims regarding those policies, would be subject to judicial review if

presented in a petition for review from a final order of removal under

§ 1252(a)(2)(D). See infra, Section III.C.

17

Plaintiffs Addagatla and V. Peddada did not make specific front-

desking allegations, but at oral argument before the district court,

counsel represented that they failed to apply due to a fear of being front-

desked.

NAKKA V. USCIS 31

USCIS would accept and process the non-filing Plaintiffs’

applications. 18

2

Because USCIS denied P. Peddada’s application for

adjustment of status based on the challenged policies, she

can establish ripeness. But, as discussed above, when a

plaintiff relies on the denial of her application to satisfy

ripeness and the statutory scheme channels review of such

denials into a limited review process, then she will “still find

[herself] at least temporarily barred” from review by those

channeling provisions. 19 CSS, 509 U.S. at 60. Plaintiffs resist

this conclusion by arguing that § 1252(a)(2)(B)(i) and (D)

do not channel review of the type of denial at issue here: a

USCIS denial of adjustment of status sought by an individual

who has lawful status and who is not subject to removal. We

18

Plaintiff Abigail Edwards applied for adjustment of status and USCIS

granted her application, notwithstanding the challenged policies. As a

result, we find she cannot show any injury traceable to the policies at

issue. Although the district court found that Edwards had standing

because her adjustment could be rescinded, we conclude that the

possibility of revocation is too speculative to confer Article III standing

and establish ripeness. Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d

774, 793 (9th Cir. 2012) (“A claim is not ripe for adjudication if it rests

upon contingent future events that may not occur as anticipated or indeed

may not occur at all.” (cleaned up)).

19

The district court concluded that the non-filing Plaintiffs’ claims are

ripe under the “firm prediction” rule. See Freedom to Travel Campaign

v. Newcomb, 82 F.3d 1431, 1436 (9th Cir. 1996). Specifically, the district

court “firmly predicted” that, if the non-filing Plaintiffs submitted

applications, USCIS would deny them based on the challenged policies.

But even accepting that assumption, the non-filing Plaintiffs would be

relying on the predicted denial of their individual applications to

establish ripeness, and they would be similarly situated to P. Peddada.

32 NAKKA V. USCIS

address that statutory interpretation issue in the following

section.

C

Plaintiffs contend that Congress intended to strip district

courts of jurisdiction to review denials of adjustment of

status for applicants who are unlawfully present and

removable but to preserve district court jurisdiction to

review such denials for applicants who are lawfully present

and not removable. Plaintiffs find evidence of such intent in

Congress’s use of the term “relief” in § 1252(a)(2)(B)(i).

They argue that “relief” is a term of art referring only to

“relief from removal” for removable individuals. Plaintiffs

explain that certain immigration benefits, such as adjustment

of status, are considered “relief from removal” when the

applicant is removable, but a “benefit” when the applicant is

lawfully present on a valid visa and has no need for relief

from removal. Under Plaintiffs’ interpretation,

§ 1252(a)(2)(B)(i) does not encompass USCIS’s denial of P.

Peddada’s adjustment of status because she had lawful status

and was not seeking “relief” from removal when she applied.

Plaintiffs recognize that § 1252(a)(2)(B)’s “regardless”

clause states that its provisions apply to the judgments

described in clause (i) and the decisions or actions described

in clause (ii) “regardless of whether the judgment, decision,

or action is made in removal proceedings.” They correctly

point out, however, that their interpretation does not render

the “regardless” clause superfluous because individuals who

are removable or in removal proceedings must apply for

some forms of discretionary relief outside removal

proceedings. See supra, Section III.A. Plaintiffs further

argue that the statutory text is at least ambiguous, and that

the presumption that Congress intends judicial review of

NAKKA V. USCIS 33

administrative action requires us to resolve any ambiguity in

their favor. See Kucana, 558 U.S. at 251.

The Government disputes Plaintiffs’ interpretation of the

term “relief” and contends that it refers to an immigration

benefit even when the applicant does not need “relief from

removal.” The Government also argues that the “regardless”

clause shows that Congress intended to encompass all

denials of discretionary relief, even if the applicant was not

subject to removal proceedings. Finally, the Government

argues that even if § 1252(a)(2)(B)(i)’s use of the term

“relief” introduces ambiguity, the presumption of

reviewability is not applicable here because

§ 1252(a)(2)(B)(i) and (D) do not preclude review of

Plaintiffs’ claims, but instead merely channel those claims

into a petition for review from a final order of removal.

Both parties offer plausible interpretations based on the

text of § 1252(a)(2)(B) and (B)(i). The title of § 1252,

“Judicial review of orders of removal,” and the section’s

numerous references to “orders of removal” and “removal

orders” lend some support to Plaintiffs’ interpretation.

Additionally, Plaintiffs correctly point out that, in the

immigration statutory scheme, Congress typically uses the

term “relief” to refer to something that only individuals who

need relief from removal would apply for. See, e.g., 8 U.S.C.

§ 1229b(c) (referring to cancellation of removal as “relief”);

8 U.S.C. § 1229c(d)(2) (same for voluntary departure).

However, in a few instances, Congress has used “relief” to

refer more broadly to immigration benefits that individuals

who are lawfully present could apply for. See, e.g., 8 U.S.C.

§ 1252(a)(2)(B)(ii) (referring to asylum applications as “the

granting of relief under section 1158(a)”); 8 U.S.C.

§ 1101(a)(51) (referring to certain forms of “relief” under

the Violence Against Women Act).

34 NAKKA V. USCIS

Plaintiffs also cite some statements from the legislative

history of the REAL ID Act and IIRIRA that suggest

Congress intended to limit judicial review only in the

removal context. For example, when Congress amended

§ 1252(a)(2)(B) by adding the “regardless” clause, it added

that language to a section entitled “PREVENTING

TERRORISTS FROM OBTAINING RELIEF FROM

REMOVAL.” See REAL ID Act § 101(f) (emphasis added).

But, in our view, the relevant legislative history is too vague

and scarce to resolve the textual ambiguity one way or

another. Thus, even after applying all the interpretive tools

available to us, we find that the statutory text remains

genuinely ambiguous.

Although we find genuine ambiguity, we disagree with

Plaintiffs’ argument that we can resolve it by applying the

presumption favoring judicial review of administrative

action. As the Government contends, that presumption does

not apply because the statute does not completely bar review

of USCIS and DHS denials of adjustment applications.

Instead, the statute channels review of those denials into a

petition for review from an order of removal. See City of

Rialto v. W. Coast Loading Corp., 581 F.3d 865, 874 (9th

Cir. 2009) (Generally, “the same act that would ripen a claim

would also bring the claim within the reach of the statutory

bar to federal court jurisdiction, thus requiring the plaintiffs

to bring their claims at the time envisioned by the statutory

scheme of judicial review.” (citing CSS, 509 U.S. at 60)).

Specifically, § 1252(a)(2)(B)(i) precludes judicial review

except as provided for under § 1252(a)(2)(D), which

preserves review of legal and constitutional claims raised in

a petition for review from a final order of removal. Plaintiffs

apparently assume that, if USCIS or DHS denies an

application for discretionary relief outside removal

NAKKA V. USCIS 35

proceedings, the denial order, and claims challenging

policies on which the denial was based, would not be

reviewable on a petition for review from a final removal

order under § 1252(a)(2)(D). But the Government maintains,

and we agree, that both the denial order and the policy

challenges would be reviewable on a petition for review

from a final removal order under § 1252(a)(2)(D), even if the

agency denied relief when the petitioner had lawful status

and was not in removal proceedings. See, e.g., Tovar v.

Sessions, 882 F.3d 895, 898 (9th Cir. 2018) (reviewing

USCIS’s denial of adjustment on CSPA grounds); Tista v.

Holder, 722 F.3d 1122, 1124 (9th Cir. 2013) (same, where

noncitizen applied for special rule cancellation and was

subsequently placed in removal proceedings); Lee v. USCIS,

592 F.3d 612, 620 (4th Cir. 2010) (observing that pursuant

to § 1252(a)(2)(D), “[t]o the extent Congress decided to

permit judicial review of a constitutional or legal issue

bearing upon the denial of adjustment of status, it intended

for the issue to be raised to the court of appeals during

removal proceedings” (emphasis omitted)).

Plaintiffs also argue that construing § 1252(a)(2)(B) as

applying to non-removable applicants will, as a practical

matter, render those applicants’ claims completely

unreviewable by any court, including circuit courts. To

understand this argument, consider P. Peddada. When she

applied for adjustment of status, she was lawfully present as

a beneficiary of her parents’ visa. When USCIS denied her

application, it explained that she was “not authorized to

remain in the United States” and that if she “fail[ed] to depart

the United States within 33 days of the date of [the denial]

USCIS may . . . commence removal proceedings against

[her] with the immigration court.” If P. Peddada complied

by leaving, she would never be placed in removal

36 NAKKA V. USCIS

proceedings—in which case, she could not raise her claims

in a petition for review from a final order of removal. P.

Peddada could obtain review only if she “bet the farm” by

violating the USCIS’s directive to leave when her lawful

status expired and surrendering herself for removal. See Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477,

490 (2010) (quoting MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 129 (2007)).

We recognize that individuals like P. Peddada—who

have not violated any immigration laws—must violate the

law to render themselves removable and obtain judicial

review. And, “[w]e normally do not require plaintiffs to ‘bet

the farm’ . . . by taking the violative action before testing the

validity of the law, and we do not consider this a meaningful

avenue of relief.” Id. (cleaned up). However, Congress can

require review in this manner by expressly limiting and

channeling judicial review. See id. at 489–90. And, in CSS,

the Court considered an almost identical situation. There, to

obtain judicial review, the plaintiffs had to “either surrender

to the INS for deportation or wait for the INS to catch [them]

and commence a deportation proceeding, and then suffer a

final adverse decision in that proceeding, before having an

opportunity to challenge the INS’s denial of [the] application

in court.” 509 U.S. at 55. Yet, the Court found that this

statutory scheme preserved a “latent right to judicial

review.” Id. at 54.

Thus, neither the legislative history nor the presumption

of reviewability resolves the textual ambiguity in this case,

and we must return to the text and statutory context.

Although it is a close question, because Congress, in at least

a few instances, used the term “relief” to refer more broadly

to immigration benefits that individuals who are lawfully

present could apply for, we conclude that “relief under

NAKKA V. USCIS 37

section . . . 1255” refers generally to adjustment of status,

whether the applicant is seeking relief from removal or not.

Consequently, although P. Peddada can rely on USCIS’s

denial of her application for adjustment of status to show that

her claims are ripe, she is still “temporarily barred” from

obtaining judicial review, CSS, 509 U.S. at 60, and her

claims are reviewable only if presented in a petition for

review from a final order of removal.

D

Finally, we note that our interpretation of

§ 1252(a)(2)(B)(i)’s scope is consistent with the D.C.

Circuit’s. See Make the Road New York v. Wolf, 962 F.3d

612 (D.C. Cir. 2020). In Make the Road, our sister circuit

considered whether § 1252(a)(2)(B) stripped district court

jurisdiction over challenges to generally applicable policies

implementing expedited removal, id. at 628–31, and

concluded that “Subsection B’s jurisdictional bar covers . . .

orders denying discretionary relief in individual cases,” but

not “the type of challenges to the Secretary’s regulations,

orders, policies, and directives” at issue, id. at 630–31

(citation omitted).

Our decision is also consistent with the holdings of the

D.C. Circuit in Abuzeid v. Mayorkas, 62 F.4th 578 (D.C. Cir.

2023), and of the Seventh Circuit in Britkovyy v. Mayorkas,

60 F.4th 1024 (7th Cir. 2023). In these post-Patel cases, our

sister circuits held that district courts lack jurisdiction to hear

plaintiffs’ challenges to USCIS’s denials of their

applications for adjustment of status, even though plaintiffs

challenged those denials as arbitrary and capricious under

the APA. Abuzeid, 62 F.4th at 586; Britkovyy, 60 F.4th at

1032. Unlike the Nakka plaintiffs, the Abuzeid and Britkovyy

plaintiffs tried to use the APA to get district court review of

38 NAKKA V. USCIS

individualized USCIS denials. See Abuzeid, 62 F.4th at 582

(noting plaintiff “asserted that the denials of [his]

applications were arbitrary and capricious, an abuse of

discretion, and contrary to law, in violation of the APA”);

Britkovyy, 60 F.4th at 1026 (plaintiff “argued that the

[USCIS’s] denial was reviewable under [the APA], and he

asked the court to set aside USCIS’s decision”). That is,

those plaintiffs’ APA claims “refer[red] to or rel[ied] on the

denial of [their] individual application[s],” CSS, 509 U.S. at

56, and thus, they were not actually collateral policy

challenges arising outside the scope of § 1252(a)(2)(B)(i).

Because those cases involved only challenges to denials of

individual applications, not agency policies or procedures,

they are not persuasive here.

We ultimately agree with our sister circuits that

§ 1252(a)(2)(B)(i) strips district courts of jurisdiction to hear

a plaintiff’s APA claim when that claim challenges an

agency’s individualized denial of an application for

adjustment of status. This is so even if the plaintiff-applicant

had lawful status and was not seeking “relief from removal.”

We just reach that conclusion by a slightly different path,

and without adopting the Government’s limitless

interpretation of § 1252(a)(2)(B)(i). Although Abuzeid and

Britkovyy seemingly adopted the Government’s broad

reading, they did so without engaging in the careful textual

analysis required under Dubin, and without applying the

analysis that our court prescribed in J.E.F.M. We also note

that Abuzeid did not consider Make the Road’s precedential

interpretation of § 1252(a)(2)(B) as stripping district courts

of jurisdiction to review individualized orders denying

applications for relief—but not challenges to general

policies and procedures. The D.C. Circuit’s opinions in

Abuzeid and Make the Road are reconcilable if Abuzeid is

NAKKA V. USCIS 39

limited to cases where the plaintiff’s claim seeks review of

an agency’s denial of their individual application for relief

and does not collaterally challenge agency policy or

procedure without relying on that denial. Viewed that way,

our analysis is consistent with both D.C. Circuit opinions. 20

***

For the foregoing reasons, we conclude that the district

court here lacked constitutional jurisdiction over most of

Plaintiffs’ claims because they are not ripe. And although P.

Peddada’s claims are ripe, § 1252(a)(2)(B)(i) and (D)

require her to present her claims in a petition for review of a

final removal order. Accordingly, we vacate the district court

order and remand with instructions to dismiss this case for

lack of jurisdiction.

VACATED AND REMANDED. 21

FORREST, J., concurring in part and concurring in the

judgment:

I agree with the majority that (1) plaintiffs Nitheesha

Nakka, Ravi Thodupunuri, Sandeep Battula, Vishal

Addagatla, and Vishal Peddada’s collateral, procedural

challenges to the United States Citizenship and Immigration

20

Our interpretation of § 1252(a)(2)(B)(i) also does not conflict with the

holdings of Thigulla v. Jaddou, 94 F.4th 770, 777 (8th Cir. 2024), and

Cheejati v. Blinken, 106 F.4th 388, 397 (5th Cir. 2024), which concluded

that jurisdiction was lacking over requests for injunctive relief to compel

DOS and USCIS to immediately process adjustment of status

applications under a different clause, § 1252(a)(2)(B)(ii).

21

The Defendants-Appellees’ motion for leave to file a response to the

late-filed amicus brief is granted.

40 NAKKA V. USCIS

Services’ (USCIS) processing of adjustment-of-status

applications are not ripe and, therefore, the district court

lacked Article III jurisdiction, and (2) the district court

lacked statutory jurisdiction over plaintiff Pavani Peddada’s

claims because 8 U.S.C. §§ 1252(a)(2)(B) and (D) channel

review of individualized decisions on applications for

adjustment of status exclusively to this court through a

petition for review from a final order of removal. 1 Where the

only claims over which we have constitutional authority are

not truly collateral, I would not address whether

§ 1252(a)(2)(B)(i) strips jurisdiction over general challenges

to USCIS’s policies and practices.

I.

As the majority explains, the claims asserted by the

plaintiffs who have not yet applied for an adjustment of

status (non-filing plaintiffs) are not ripe. Ripeness is a

justiciability requirement “drawn both from Article III

limitations on judicial power and from prudential reasons for

refusing to exercise jurisdiction.” Reno v. Cath. Soc. Servs.,

Inc., 509 U.S. 43, 57 n. 18 (1993) (hereafter CSS); see also

United States v. Antelope, 395 F.3d 1128, 1132 (9th Cir.

2005) (“The constitutional component of ripeness is a

jurisdictional prerequisite.”). It is grounded in the principle

that federal courts should not “‘entangl[e] themselves in

abstract disagreements.’” Twitter, Inc. v. Paxton, 56 F.4th

1170, 1173 (9th Cir. 2022) (quoting Portman v. County of

1

As the majority notes, the district court lacked constitutional

jurisdiction over the claims asserted by the one remaining named

plaintiff—Abigail Edwards—who applied for and was erroneously

granted an adjustment of status because she cannot establish a concrete

injury based on her allegation that the agency may revoke her Lawful

Permanent Resident status. Maj. Op. at 31, n.18; Alcoa, Inc. v. Bonneville

Power Admin., 698 F.3d 774, 793 (9th Cir. 2012).

NAKKA V. USCIS 41

Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993); see also Fed.

Election Comm’n v. Cruz, 563 U.S. 125, 132 (2011) (“Under

Article III, the Federal Judiciary is vested with the ‘Power’

to resolve not questions and issues but “Cases’ or

‘Controversies.’”). The constitutional component of the

ripeness requirement “‘coincides squarely with” the injury-

in-fact analysis for Article III standing. Bishop Paiute Tribe

v. Inyo County, 863 F.3d 1144, 1153 (9th Cir. 2017).

Whether framed as ripeness or standing, for a federal court

to have the authority to review a claim, the asserted injury

must involve “‘an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical.’” Id. (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). And

where the challenged regulation, like here, “impose[s] no

penalties for violating any newly imposed restrictions, but

limit[s] access to a benefit,” CSS, 509 U.S. at 58, “for

ripeness to be satisfied, Plaintiffs must have taken ‘the

affirmative steps that [they] could take before the [agency]

blocked [their] path,’” Proyecto San Pablo v. INS, 189 F.3d

1130, 1138 (9th Cir. 1989) (quoting CSS, 509 U.S. at 59).

Here, the non-filing plaintiffs have not felt the effects of

USCIS’s actions “in a concrete way.” CSS, 509 U.S. at 57

(citation omitted). The USCIS has not applied its challenged

policies and practices governing applications for adjustment

of status to the non-filing plaintiffs because they have not

applied for an adjustment of status. See FDA v. All. for

Hippocratic Med., 602 U.S. 144 S.Ct. 1540, 1554 (2024)

(“For a plaintiff to get in the federal courthouse door and

obtain a judicial determination of what the governing law is,

the plaintiff cannot be a mere bystander, but instead must

have a ‘personal stake’ in the dispute.”); see also Bassett v.

ABM Parking Serv., Inc., 883 F.3d 776, 779 (9th Cir. 2018)

42 NAKKA V. USCIS

(holding an injury is concrete if it “‘actually exists’; in other

words, it is ‘real and not abstract.’” (quoting Spokeo, Inc., v.

Robins, 578 U.S. 330, 340 (2016)). Thus, we lack Article III

jurisdiction over the non-filing plaintiffs’ claims, Bishop

Paiute Tribe, 863 F.3d at 1153, and I would not address

whether § 1252(a)(2)(B)(i) authorizes general or collateral

challenges to USCIS’s policies and practices, see Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1988)

(“Jurisdiction is power to declare the law, and when it ceases

to exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause.” (citation and

quotation marks omitted)).

II.

Pavani Peddada’s claims are ripe. During the pendency

of this litigation, she applied for and was denied adjustment

of status based on USCIS’s challenged policies and

practices. Therefore, we must address whether statutory

jurisdiction exists to review the USCIS’s individualized

denial of her application for adjustment of status. See CSS,

509 U.S. at 57.

On that issue, I agree that the district court lacked

statutory jurisdiction because individualized decisions on

applications for adjustment of status, even for applicants

who are not removable when they file their application, can

be challenged only through removal proceedings, over

which this court, not the district court, has judicial review. 2

2

As the Supreme Court has recognized, “in most circumstances, the

same act that would ripen a claim would also bring the claim within the

reach of the statutory bar to federal court jurisdiction, thus requiring the

plaintiffs to bring their claims at the time envisioned by the statutory

scheme of judicial review.” City of Rialto v. W. Coast Loading Corp.,

NAKKA V. USCIS 43

Nasrallah v. Barr, 590 U.S. 573, (2020) (a noncitizen may

obtain “direct ‘review of a final order of removal’ in a court

of appeals” (quoting 8 U.S.C. § 1252(a)(1)). In my view, the

Government has the stronger argument regarding the

interpretation of § 1252(a)(2)(B)(i) considering the statutory

text and context, and any ambiguity about the meaning of

“relief” in this provision cannot be resolved by the

presumption of judicial review for the reasons explained by

the majority.

Additionally, because USCIS made an individualized

determination on Pavani Peddada’s application for

adjustment of status, any generalized or collateral challenge

that she asserts to USCIS’s policies and practices presents an

“abstract disagreement[].” Abbott Lab’ys, 387 U.S. at 148.

That is, Pavani Peddada can no longer be deemed to assert

any truly collateral claims because the policies and practices

that she challenges were directly applied to her in denying

her application for adjustment of status. See McNary v.

Haitian Refugee Ctr., Inc., 498 U.S. 479, 492 (1991) (the

Supreme Court has long distinguished between “direct

review of individual denials” of applications and “general

collateral challenges to [unlawful] practices and policies.”).

Therefore, there is no cause in this case to address whether

§ 1252(a)(2)(B)(i) preserves review of collateral challenges.

For these reasons, I respectfully concur in part and

concur in the judgment.

581 F.3d 865, 874 (9th Cir. 2009) (citing CSS, 509 U.S. at 60). And here,

Pavani Peddada’s challenges to USCIS’s general patterns and practices

can “receive [ ] practical judicial review within the scheme established

by [statute].” Cf. CSS, 509 U.S. at 61.