Chairez v. Mayorkas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOSIMO VERA CHAIREZ, No. 24-4137

D.C. No.

Plaintiff - Appellant,

1:22-cv-00291-

AKB

v.

Secretary ALEJANDRO

MAYORKAS, Secretary of the U.S. OPINION

Department of Homeland Security;

UR M. JADDOU, Director of U.S.

Citizenship & Immigration Services

(USCIS); UNITED STATES

CITIZENSHIP AND

IMMIGRATION SERVICES;

LAURA ZUCHOWSKI, Director of

the Vermont Service Center of

USCIS,

Defendants - Appellees.

Appeal from the United States District Court

for the District of Idaho

Amanda K. Brailsford, District Judge, Presiding

Argued and Submitted July 11, 2025

Seattle, Washington

2 CHAIREZ V. MAYORKAS

Filed March 5, 2026

Before: Susan P. Graber, Carlos T. Bea, and Mark J.

Bennett, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Bea

SUMMARY *

Immigration

The panel affirmed the district court’s dismissal, for lack

of jurisdiction, of Plaintiff Sosimo Vera Chairez’s challenge

under the Administrative Procedure Act to the United States

Citizenship and Immigration Services’ denial of his request

for a waiver of inadmissibility, which he had sought to be

eligible for a U visa.

The panel held that the agency’s denial of a waiver of

inadmissibility under 8 U.S.C. § 1182(d)(14) falls within 8

U.S.C. § 1252(a)(2)(B)(ii), which precludes judicial

review of agency action “the authority for which is

specified under this subchapter to be in the discretion of

the . . . Secretary.” The statute speaks in permissive terms

by using “may” and the statute’s instruction that the waiver

may issue if the Secretary “considers” it to be in the national

or public interest reinforces its discretionary nature.

*

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

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

CHAIREZ V. MAYORKAS 3

The panel rejected Plaintiff’s argument that the court had

jurisdiction to review the Secretary’s decision because the

phrase “the public or national interest” is a judicially

manageable standard. In doing so, the panel recognized that

the Supreme Court’s decision in Bouarfa v. Mayorkas, 604

U.S. 6 (2024), overruled the holding and methodology set

out in ANA International v. Way, 393 F.3d 886 (9th Cir.

2004), which had focused on whether the statutory term—

considered in isolation—provided a reviewable

standard. Following Bouarfa, when Congress signals that it

is merely providing guidance to the agency on its exercise of

discretion—as opposed to providing prerequisites—the

discretionary judgment call as a whole falls within the

jurisdiction-stripping provision of 8 U.S.C.

§ 1252(a)(2)(B)(ii).

The panel also concluded that 8 U.S.C. § 1252(a)(2)(D),

which expressly preserves judicial review of constitutional

and legal claims, does not provide district courts with

jurisdiction because it only preserves review when such

claims are raised in a petition for review from a final order

of removal “filed with an appropriate court of appeals.”

The panel also rejected, at this procedural juncture,

Plaintiff’s argument that the statutory scheme

unconstitutionally deprived him of any judicial review. To

the extent Plaintiff had a viable challenge to the agency’s

decisions, the only place he could advance that claim is in

removal proceedings and a subsequent petition for review in

a court of appeals.

Finally, although this court held, in Poursina v. U.S.

Citizenship & Immigr. Servs., 936 F.3d 868 (9th Cir. 2019),

that the court retains jurisdiction over colorable

constitutional claims that challenge agency procedures, the

4 CHAIREZ V. MAYORKAS

panel concluded that it lacked jurisdiction here because

Plaintiff’s constitutional claim was entirely speculative and

not colorable. The panel also concluded that there is no

conflict between Poursina and Nakka v. USCIS, 111 F.4th

995 (9th Cir. 2024).

Concurring in part and concurring in the judgment,

Judge Bea wrote that there exists an irreconcilable Ninth

Circuit intra-circuit split regarding whether the jurisdiction-

stripping provisions of 8 U.S.C. § 1252(a)(2)(B) and (D)

restrict all claimed constitutional challenges to United States

Citizenship and Immigration Service’s discretionary

determinations of immigration status to a petition for review

of a final order of removal (Nakka) or whether such

challenges may be heard in district court (Poursina). In

Judge Bea’s view, an en banc panel of this Court should be

constituted to resolve this irreconcilable conflict. Judge Bea

also wrote that this court’s practice of avoiding jurisdiction

based on whether a claim is “colorable” ought to be

reevaluated.

COUNSEL

Nicholas Ratkowski (argued), Ratkowski Law PLLC, Saint

Paul, Minnesota; Nicole R. Derden, Law Offices of Nicole

R. Derden, Meridian, Indiana; for Plaintiff-Appellant.

Lauren E. Fascett (argued), Sarah L. Vuong, and Matthew

Seamon, Senior Litigation Counsel; Victoria Turcios and

Kevin Hirst, Trial Attorneys; Brian M. Boynton, Principal

Deputy Assistant Attorney General; Civil Division, United

States Department of Justice, Washington, D.C.; for

Defendants-Appellees.

CHAIREZ V. MAYORKAS 5

OPINION

PER CURIAM:

Plaintiff Sosimo Vera Chairez, a native and citizen of

Mexico, applied to the United States Citizenship and

Immigration Services (“USCIS”) for a nonimmigrant U visa.

Such visas are not available to noncitizens who, for one

reason or another, are inadmissible to the United States

under the Immigration and Nationality Act (“INA”). 8

U.S.C. § 1182(a). Plaintiff concedes that he is inadmissible,

but he sought to have his conditions of inadmissibility

waived by USCIS. Were he to obtain an inadmissibility

waiver, Plaintiff argues, he would become eligible for a U

visa. The INA provides that the Secretary of Homeland

Security may, in the Secretary’s discretion, grant a waiver of

inadmissibility to a U-visa applicant when the Secretary

considers a waiver to be in the public or national interest. 8

U.S.C. § 1182(d)(14). USCIS denied Plaintiff’s request for

a waiver and, as a consequence, also denied his request for a

U visa.

Plaintiff sued in district court under the Administrative

Procedure Act (“APA”), alleging that USCIS’s denial of his

request for a waiver of inadmissibility was unlawful. The

district court dismissed the action for lack of subject matter

jurisdiction. We have appellate jurisdiction to review that

final order pursuant to 28 U.S.C. § 1291, and we review de

novo whether the district court had jurisdiction. Gila River

Indian Cmty. v. U.S. Dep’t of Veterans Affs., 899 F.3d 1076,

1078 (9th Cir. 2018). Because the district court correctly

held that it lacked jurisdiction, we affirm.

6 CHAIREZ V. MAYORKAS

FACTUAL AND PROCEDURAL HISTORY

In 2016, Plaintiff applied to USCIS for a U visa by filing

a Form I-918, “Petition for U Nonimmigrant Status.” The U

visa is so named because it applies to a class of

nonimmigrants defined in subsection U of the

relevant provision of the INA, 8 U.S.C. § 1101(a)(15)(U).

According to USCIS, the U visa “is set aside for victims of

certain crimes who have suffered mental or physical abuse

and are helpful to law enforcement or government

officials in the investigation or prosecution of

criminal activity.” Victims of Criminal Activity: U

Nonimmigrant Status, U.S. Citizenship & Immigr. Servs.,

https://www.uscis.gov/humanitarian/victims-of-criminal-

activity-u-nonimmigrant-status. The INA specifies the

categories of crimes the victims of which may be eligible for

a U visa. 8 U.S.C. § 1101(a)(15)(U)(iii).

Like all visas, the U visa typically is not available to

“aliens who are inadmissible” to the United States due to a

statutory condition. See 8 U.S.C. § 1182(a). But the INA

provides some avenues for inadmissible nonimmigrants to

obtain a visa. One such avenue is enumerated specifically

for U visa applicants. 8 U.S.C. § 1182(d)(14). The INA

provides that the Secretary of Homeland Security “shall

determine whether a ground of inadmissibility exists” with

respect to a nonimmigrant seeking a U visa and that the

Secretary, “in [the Secretary’s] discretion, may waive” the

inadmissibility of such a nonimmigrant “if the

Secretary . . . considers it to be in the public or national

interest to do so.” 1 Id.

1

This portion of the statute contains a scrivener’s error. It states that the

“Secretary of Homeland Security, in the Attorney General’s discretion,

CHAIREZ V. MAYORKAS 7

In addition to submitting his application for a U visa,

Plaintiff also submitted a Form I-192, “Application for

Advance Permission to Enter as Nonimmigrant,” in which

he claimed “U nonimmigrant status” and explicitly

requested a waiver of inadmissibility. On his Form I-192,

Plaintiff represented as follows:

I believe that I am inadmissible because I

entered the United States without permission

and lived unlawfully in the United States for

more than a year, and then reentered the

United States without permission. I also may

be inadmissible because I have been removed

from the United States before. I may also be

inadmissible for having possessed a

may waive” conditions of inadmissibility for U-visa applicants. 8 U.S.C.

§ 1182(d)(14) (emphasis added). This provision was meant to say that

the Secretary of Homeland Security is the one who has such discretion.

The error arose after the creation of the Department of Homeland

Security, when Congress transferred authority over a large amount of

immigration administration from the Attorney General and the

Department of Justice to the Secretary of Homeland Security and the

newly created USCIS. More specifically, Congress directed all

references to “Attorney General” in subsection (d)(14) to be replaced by

“Secretary of Homeland Security.” See Meridor v. U.S Att’y Gen., 891

F.3d 1302, 1306 n.6 (11th Cir. 2018) (detailing the relevant statutory

history). The scrivener apparently did not change this reference to the

Attorney General because of punctuation—an apostrophe-s following

“Attorney General.” We agree with the Eleventh Circuit that the

scrivener erred and that Congress intended to change this reference, too.

Id.; see also U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.,

508 U.S. 439, 462 (1993) (“Courts, we have said, should ‘disregard the

punctuation, or repunctuate, if need be, to render the true meaning of the

statute.’” (quoting Hammock v. Loan & Tr. Co., 105 U.S. 77, 84–85

(1882))).

8 CHAIREZ V. MAYORKAS

controlled substance. Please waive any

grounds that may apply to me.

In 2020, USCIS denied Plaintiff’s Form I-918

application for a U visa on the ground that he was

inadmissible, even though the agency had not issued any

decision on Plaintiff’s Form I-192 request for a waiver of

inadmissibility. Plaintiff timely appealed the denial of his

U-visa application to USCIS’s Administrative Appeals

Office. In 2021, while his appeal of that decision was

pending, USCIS issued a formal denial of his request for a

waiver of inadmissibility. The Administrative Appeals

Office later dismissed Plaintiff’s appeal.

In 2022, Plaintiff timely brought the instant action under

the APA, challenging the agency’s denials of his

applications for a U visa and for a waiver of inadmissibility.

After Plaintiff filed the action, USCIS reopened both of his

applications. USCIS determined that its initial denial of

Plaintiff’s I-918 application for a U visa had been

“procedurally improper” because it rested on the denial of

his request for a waiver, “which had not yet been adjudicated

at the time [his] Form I-918 was denied.” In 2023, USCIS

issued new decisions denying Plaintiff’s application both for

a U visa and for a waiver of inadmissibility.2

Following the new denials, Plaintiff amended his

complaint to reassert his claim under the APA that the

denials of his applications were unlawful. Plaintiff also

2

In its initial denials of Plaintiff’s applications, USCIS asserted at least

seven independent grounds on which it determined that Plaintiff was

inadmissible. After the agency re-opened and re-adjudicated the

applications, however, it asserted only two grounds for Plaintiff’s

inadmissibility: presence without admission or parole and unlawful

presence for one year after entering without admission.

CHAIREZ V. MAYORKAS 9

added a Fifth Amendment claim alleging that USCIS denied

him his due process right to a neutral decisionmaker because

it was biased against him. Defendants moved to dismiss the

action for lack of subject matter jurisdiction and for failure

to state a claim for relief.

The district court granted Defendants’ motion to dismiss

for lack of subject matter jurisdiction. The district court

concluded that the INA strips district courts of jurisdiction

to review USCIS’s denial of a § 1182(d)(14) waiver because

the INA specifies that the decision to grant such a waiver is

in the discretion of the agency. This timely appeal followed.

DISCUSSION

The APA waives the United States’ sovereign immunity

with respect to suits brought by persons injured by certain

agency actions, and it creates a right of judicial review. 5

U.S.C. § 702. The statute instructs reviewing courts to

“compel agency action unlawfully withheld or unreasonably

delayed” and to “set aside” final agency actions that are

unlawful in particular ways. 5 U.S.C. § 706. But the APA

does not apply to all grievances against agency action. As

relevant here, it does not apply when other “statutes preclude

judicial review” of the agency action in question, or when

the “agency action is committed to agency discretion by

law.” 5 U.S.C. § 701(a).

In the INA, “Congress has sharply circumscribed

judicial review” over the actions of federal immigration

authorities regarding discretionary relief. Patel v. Garland,

596 U.S. 328, 332 (2022). The INA provides that “no court

shall have jurisdiction to review” agency decisions to grant

or deny certain kinds of discretionary relief. 8 U.S.C.

§ 1252(a)(2)(B). The two subsections of this jurisdiction-

stripping provision deal with different sets of discretionary

10 CHAIREZ V. MAYORKAS

relief. In § 1252(a)(2)(B)(i), the INA enumerates several

statutory provisions that provide for discretionary relief,

none of which is at issue here. In § 1252(a)(2)(B)(ii),

Congress further strips federal courts of jurisdiction to

review “any other decision or action of the . . . Secretary of

Homeland Security the authority for which is specified under

this subchapter to be in the discretion of the . . . Secretary.”

Thus, § 1252(a)(2)(B)(ii) “supersedes the default rule

that agency actions are reviewable pursuant to federal

question jurisdiction and the [APA].” Vega v. U.S.

Citizenship & Immigr. Servs., 65 F.4th 469, 471 (9th Cir.

2023). In other words, the APA’s express limitation that it

does not apply when “statutes preclude judicial review,” 5

U.S.C. § 701(a)(1), applies whenever the agency action at

issue falls within the INA’s jurisdictional bar in

§ 1252(a)(2)(B)(ii).

Importantly, the pertinent provision of the APA in this

case is § 701(a)(1)—not § 701(a)(2). Confusing as it might

be, the question whether “agency action is committed to

agency discretion by law”—and thus is carved out of the

APA by 5 U.S.C. § 701(a)(2)—differs substantially from the

question whether a particular agency action is “specified to

be in the discretion” of the agency for purposes of

§ 1252(a)(2)(B)(ii). Compare Weyerhaeuser Co. v. U.S.

Fish & Wildlife Serv., 586 U.S. 9, 23 (2018) (“[W]e have

read the exception in § 701(a)(2) quite narrowly.”), with Zia

v. Garland, 112 F.4th 1194, 1200 (9th Cir. 2024) (“We read

[§ 1252(a)(2)(B)(ii)] expansively to cover all determinations

made in support of a grant of discretionary relief.”).

Despite the textual similarities between

§ 1252(a)(2)(B)(ii) and § 701(a)(2), there is good reason to

interpret them differently. The Supreme Court has

CHAIREZ V. MAYORKAS 11

recognized that the APA “creates a basic presumption of

judicial review for one suffering legal wrong because of

agency action.” Weyerhaeuser, 586 U.S. at 22 (cleaned up).

Further, the APA expressly instructs courts to apply the

“abuse of discretion” standard to certain agency actions—a

command that is hard to square with a rule that all actions

“committed to agency discretion by law” are unreviewable.

Id. at 23. On the other hand, “the text and context of

[§ 1252(a)(2)(B)(ii)]—which is, after all, a jurisdiction-

stripping statute—clearly indicate” Congress’s intent to

preclude most judicial review “in the discretionary-relief

context.” Patel, 596 U.S. at 347. So we put a thumb on the

scale in favor of judicial review when we apply the APA’s

discretionary exception in § 701(a)(2), but that interpretation

does not apply to Congress’s explicit and expansive

jurisdiction-stripping wording in § 1252(a)(2)(B)(ii). And

when § 1252(a)(2)(B)(ii) applies, the operative APA

exception is § 701(a)(1), because another statute, namely the

INA, “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1).

The INA’s jurisdictional bar, however, is not

unqualified. Sometimes referred to as a “savings clause” or

the “limited review provision,” § 1252(a)(2)(D) does allow

for “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.” See Zia,

112 F.4th at 1199. Such petitions for review are available to

review only a final order of removal, and they are the “sole

and exclusive means for judicial review” of removal orders.

8 U.S.C. § 1252(a)(5).

12 CHAIREZ V. MAYORKAS

A. The Agency’s Denial of a Waiver of Inadmissibility

Falls Within § 1252(a)(2)(B)(ii)’s Jurisdictional Bar.

The question to which we now turn is whether the agency

action that Plaintiff seeks to challenge—USCIS’s denial of

his request for a waiver of inadmissibility under

§ 1182(d)(14)—falls within § 1252(a)(2)(B)(ii)’s

jurisdictional bar. We hold that it does.

The plain text of § 1182(d)(14) and § 1252(a)(2)(B)(ii)

all but resolves the matter. Recall that § 1252(a)(2)(B)(ii)

precludes judicial review of agency action “the authority for

which is specified under this subchapter to be in the

discretion of the . . . Secretary.” Sections 1182(d)(14) and

1252(a)(2)(B)(ii) both fall within subchapter II of 8 U.S.C.

Chapter 12. The primary question we must answer, then, is

whether the authority to grant a waiver of inadmissibility

under § 1182(d)(14) is “specified to be in the discretion of

the Secretary.”

Section 1182(d)(14) states that “[t]he Secretary of

Homeland Security, in [the Secretary’s] discretion, may

waive [conditions of inadmissibility] in the case of a

nonimmigrant [seeking a U visa], if the Secretary of

Homeland Security considers it to be in the public or national

interest to do so.” (Emphases added.) Several textual factors

persuade us that the decision whether to grant a

§ 1182(d)(14) waiver is discretionary within the meaning of

§ 1252(a)(2)(B)(ii). Most obviously, the “plain terms of the

statute invoke the agency’s discretion.” Vega, 65 F.4th at

471. And the statute speaks in permissive terms, stating that

the Secretary “may” waive a condition of inadmissibility,

not that the Secretary “shall” or “must.” This wording

“brings along the usual presumption of discretion.” Id.

(quoting Poursina v. U.S. Citizenship & Immigr. Servs., 936

CHAIREZ V. MAYORKAS 13

F.3d 868, 871 (9th Cir. 2019)). The statute’s instruction that

the waiver may issue if the Secretary “considers” it to be in

the national or public interest—as opposed to whether it

actually is in the national or public interest—“reinforces its

discretionary nature.” See Poursina, 936 F.3d at 871

(“Congress’s use of ‘deems’ connotes that the Attorney

General’s determination involves some measure of

judgment.”).

Indeed, we reached the same conclusion when we

considered a substantially similar provision of the INA in

Vega. There, the plaintiff had filed an APA suit in district

court challenging USCIS’s decision to deny him a waiver of

inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii). 3 Vega,

65 F.4th at 471. The waiver provision at issue in Vega states

that an otherwise inadmissible noncitizen “may be admitted

into the United States . . . in the discretion of the Attorney

General.” § 1182(d)(3)(A)(ii); see also Vega, 65 F.4th at

471. We held that the decision whether to issue that kind of

waiver is unreviewable under § 1252(a)(2)(B)(ii) because it

is specified to be in the sole discretion of the Attorney

General. Vega, 65 F.4th at 471.

Plaintiff argues that Vega is distinguishable. In his view,

the provision at issue in Vega contained no qualifying

limitation on the Attorney General’s exercise of discretion,

while the Secretary’s discretion under § 1182(d)(14) is

limited to some degree. Specifically, § 1182(d)(14)

authorizes the Secretary’s discretion to grant a waiver “if the

3

Like Plaintiff here, the plaintiff in Vega was seeking a U visa and had

also applied for a § 1182(d)(14) waiver. But the plaintiff abandoned his

argument that § 1182(d)(14) provided a basis for jurisdiction, so we left

that question for another day, which has here and now arrived. See Vega,

65 F.4th at 471 n.1.

14 CHAIREZ V. MAYORKAS

Secretary of Homeland Security considers it to be in the

public or national interest to do so.” Plaintiff argues that,

because “the public or national interest” is a judicially

manageable standard of review, we have jurisdiction to

review the Secretary’s determination in this regard.

We reject Plaintiff’s argument, but some explanation is

needed. The doctrine invoked by Plaintiff traces back to our

decision in Spencer Enterprises, Inc. v. United States, 345

F.3d 683 (9th Cir. 2003). The immigration statute at issue

in that case did not state that the relevant decision was

discretionary, and the statute used the word “shall,” not

“may.” Id. at 688. We held that § 1252(a)(2)(B)(ii) did not

strip us of jurisdiction to hear challenges to the agency’s

decision, because the statute did not confer discretion. Id. at

688–92. But much of our reasoning focused on whether the

statute provided for “discretion guided by legal standards.”

Id. at 690 (emphasis added).

We expanded our rule the next year in ANA

International v. Way, 393 F.3d 886 (9th Cir. 2004). The

plaintiff in that case challenged the Attorney General’s

revocation of a visa pursuant to 8 U.S.C. § 1155, which

provided that the Attorney General “may, at any time, for

what he deems to be good and sufficient cause, revoke the

approval of any petition” for an immigrant visa. 8 U.S.C.

§ 1155; see ANA Int’l, 393 F.3d at 893. Applying Spencer,

we held that the statutory phrase “good and sufficient

cause”—considered in isolation—provided an objective

legal standard and that, accordingly, we had jurisdiction to

review the plaintiff’s challenges to the agency’s decision.

ANA Int’l, 393 F.3d at 893–94.

We applied that analysis more recently in Poursina v.

USCIS, 936 F.3d 868 (9th Cir. 2019). The statute at issue

CHAIREZ V. MAYORKAS 15

there provided that “the Attorney General may, when the

Attorney General deems it to be in the national interest,

waive” certain requirements. 8 U.S.C. § 1153(b)(2)(B)(i).

We held that the statute’s use of the word “may” conveyed

discretion to the Attorney General. Poursina, 936 F.3d at

870–73.

We then addressed the plaintiff’s argument that “ANA

International compel[led] a contrary result.” Id. at 873. We

analyzed the argument in two parts. First, we held that

“national interest”—even considered in isolation—was not

a judicially manageable standard because it “invokes

broader economic and national-security considerations, and

such determinations are firmly committed to the discretion

of the Executive Branch.” Id. at 874. We contrasted the

“national interest” wording with the “good cause” wording

from ANA International. Id. We held that “good cause” is

a judicially manageable standard because, “[i]n a variety of

contexts, federal courts must make findings of ‘good

cause.’” Id. (citing cases in other contexts).

Second, we questioned the continuing vitality of the

methodology applied in ANA International. Id. at 875.

“Indeed, even if the [statute at issue in Poursina] resembled

the one discussed in ANA International”—that is, if a part of

the statute, considered alone, provided a judicially

manageable standard—“we would hesitate to extend such

decision beyond its narrow holding.” Id. We pointed out

that ANA International’s rule was an “outlier.” Id.

We now hold that ANA International is no longer good

law, both with respect to its narrow holding and with respect

to its methodology. In Bouarfa v. Mayorkas, 604 U.S. 6

(2024), the Supreme Court addressed the same legal issue

decided in ANA International: whether federal courts have

16 CHAIREZ V. MAYORKAS

jurisdiction over the agency’s visa-revocation decisions

pursuant to 8 U.S.C. § 1155. The Court concluded that

federal courts lack jurisdiction to review the agency’s

decisions under § 1155, which includes the phrase “good and

sufficient cause.” Id. at 19. The Court expressly noted that

we had reached the opposite jurisdictional conclusion in

ANA International. Id. at 13 n.3. Bouarfa thus clearly

overruled the legal holding in ANA International,

specifically, that we have jurisdiction to review the agency’s

decisions pursuant to § 1155.

As to methodology, nowhere did the Court ask whether

“good and sufficient cause” independently provided a

judicially manageable standard. Instead, the Court cited

Webster v. Doe, 486 U.S. 592, 600 (1988), to emphasize

that, because the statute permitted discretion whenever the

Attorney General “deems” there to be good and sufficient

cause, the statute was discretionary. Id. at 14. In a

parenthetical, the Court explained that Webster had held

“that a statute permitting the agency to terminate an

employee whenever it ‘“deem[s] such termination necessary

or advisable in the interests of the United States”’ was

discretionary.” Id. (alteration by Bouarfa). Thus, Bouarfa

also is clearly irreconcilable with the methodology that we

employed in ANA International and its progeny. ANA

International stripped out the qualifying text from its context

and asked whether that text, considered alone, could provide

a judicially manageable standard. 393 F.3d at 893–94. That

methodology no longer applies. Instead, when Congress

signals that it is merely providing guidance to the agency on

its exercise of discretion, the discretionary judgment call as

a whole falls within the jurisdiction-stripping provision of 8

U.S.C. § 1252(a)(2)(B)(ii).

CHAIREZ V. MAYORKAS 17

It is important to distinguish here between guidance to

the agency on its exercise of discretion, on the one hand, and

statutory legal prerequisites, on the other hand. Many

statutes grant discretion to an agency, but only if certain

statutory requirements are met. For example, cancellation of

removal allows the agency to cancel removal, but only if

certain prerequisites are met. 8 U.S.C. § 1229b(a); see

Lemus-Escobar v. Bondi, 158 F.4th 944, 952–54 (9th Cir.

2025) (describing cancellation of removal, the prerequisites,

and our jurisdiction). The Supreme Court in Bouarfa

referred to those prerequisites as “threshold requirements.”

604 U.S. at 15.

Here, as in Bouarfa, the relevant statutory text contains

only guidance to the agency on its exercise of discretion; it

contains no threshold requirements. The statute at issue here

allows the Secretary, in the Secretary’s discretion, to waive

certain requirements “if the Secretary of Homeland Security

considers it to be in the public or national interest to do so.”

8 U.S.C. § 1182(d)(14) (emphasis added). Just as the statute

at issue in Bouarfa used the word “deems” to signal guidance

on the exercise of the agency’s discretion—as opposed to a

threshold legal requirement—the statutory text just quoted

uses the word “considers” equally to signal guidance on the

exercise of the agency’s discretion. See also Ruiz v. Bondi,

163 F.4th 586, 592–95 (9th Cir. 2025) (concluding that a

statutory provision was discretionary within the meaning of

8 U.S.C. § 1252(a)(2)(B)(ii) where that provision, 8 U.S.C.

§ 1158(a)(2)(D), states that the Attorney General “may”

grant relief if the petitioner “demonstrates to the satisfaction

of the Attorney General” that “extraordinary circumstances”

existed).

In sum, we recognize as overruled both ANA

International’s specific holding and its methodology. See

18 CHAIREZ V. MAYORKAS

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc). Going forward, in a case brought in district court

under the APA, if a clause provides only guidance to the

agency on its exercise of discretion, then that guidance is

part of the exercise of discretion and falls within 8 U.S.C.

§ 1252(a)(2)(B)(ii). We shall not consider, as we

erroneously did in ANA International, whether the

guidance—stripped of its context—could provide a

judicially manageable legal standard. That question is no

longer relevant in interpreting a statute of this kind. Because

the statutory text in § 1182(d)(14) confers discretion to the

Secretary, § 1252(a)(2)(B)(ii) applies, thus precluding

judicial review of USCIS’s decision to deny Plaintiff’s

waiver of inadmissibility under § 1182(d)(14). 5 U.S.C.

§ 701(a)(1). 4

B. The INA’s Savings Clause Does Not Apply Here.

The INA’s savings clause, § 1252(a)(2)(D), expressly

preserves judicial review of constitutional and legal claims,

but only when such claims are raised in a petition for review

from a final order of removal “filed with an appropriate court

of appeals in accordance with this section.” 8 U.S.C.

§ 1252(a)(2)(D). Under § 1252(a)(5), such petitions for

review may be taken only as to “an order of removal entered

or issued” by the immigration courts. Nothing in the text of

§ 1252—or any other provision of the INA—can be read to

4

Plaintiff also argues that the district court erred by adjudicating

Defendants’ motion to dismiss without complying with the APA’s

requirement to review the entire administrative record. See 5 U.S.C.

§ 706. But because we conclude that the INA “preclude[s] judicial

review,” 5 U.S.C. § 701(a)(1), the APA expressly does not apply. Thus,

§ 706 does not govern. The district court was under no obligation to

require Defendants to file the administrative record before it decided the

threshold question of its own jurisdiction.

CHAIREZ V. MAYORKAS 19

provide district courts with jurisdiction, in the context of an

APA challenge, to review infirmities underlying otherwise

unreviewable, discretionary decisions. 5

C. We Reject, at this Procedural Juncture, Plaintiff’s

Argument that the Statutory Scheme is

Unconstitutional.

Plaintiff asks us to allow his suit in district court to

proceed because the interpretation of the INA’s

jurisdictional provisions that we have adopted here works to

deprive him of any avenue to obtain judicial review of

USCIS’s allegedly improper action against him. If that is the

result, Plaintiff says, the INA is unconstitutional as applied

to him because the statute “inherently and necessarily

permits USCIS to violate the Constitution with complete and

total impunity when adjudicating § 1182(d)(14) waivers.”

We are not persuaded that Plaintiff is constitutionally

entitled to judicial review in district court as things stand

today. As the Supreme Court stated in Patel, Congress has

made a “choice to provide reduced procedural protection for

discretionary relief, the granting of which is not a matter of

right under any circumstances, but rather is in all cases a

matter of grace.” 596 U.S. at 345 (internal quotation marks

and citation omitted). For that reason, it is not necessarily

the case that the INA’s narrowing of Plaintiff’s path to

judicial review—or even potentially its closure of any

path—renders the statute unconstitutional as applied to him.

5

Plaintiff suggests in passing that we can “convert” this appeal into a

petition for review. Plaintiff supplies no legal authority for that

maneuver, and we are aware of none. Section 1252 establishes that a

petition for review is a vehicle reserved for a challenge to a final order

of removal, and no such order is before us.

20 CHAIREZ V. MAYORKAS

But to resolve the case before us, we need not resolve

Plaintiff’s argument. In rejecting his constitutional

challenge to the INA, we emphasize that we do not decide

today whether, or to what extent, Plaintiff can raise his

claims in removal proceedings. Nor do we decide whether,

if the immigration courts cannot review his claims, such a

result would violate the Constitution. What we do decide is

that, to the extent Plaintiff has a viable challenge to the

discretionary decisions of the immigration authorities, the

only place he can advance that claim is in removal

proceedings and a subsequent petition for review in the court

of appeals. It would be premature, and speculative, to say

conclusively that the procedure Congress has provided is so

inadequate that it forces us to set aside the INA’s

jurisdictional bar and allow Plaintiff’s APA suit to proceed.

The forum for that question is on a petition for review from

a final order of removal, as § 1252(a)(2)(D) requires. 6

To put it another way, the fact that Plaintiff might not be

able to obtain judicial review in removal proceedings does

not affect the outcome here. If Plaintiff is correct that the

6

Plaintiff may yet be able to obtain some form of review—or at least

relief—in removal proceedings, which would alleviate his constitutional

concern here. For example, several of our sister circuits have held that

immigration judges have the power to grant waivers of inadmissibility to

U-visa applicants under § 1182(d)(3)(A)(ii). See Jimenez-Rodriguez v.

Garland, 996 F.3d 190, 200 (4th Cir. 2021); Meridor, 891 F.3d at 1307;

L.D.G. v. Holder, 744 F.3d 1022, 1030 (7th Cir. 2014). And there may

be other forms of relief that Plaintiff can seek in immigration court that

would allow him to present any infirmity underlying his immigration

status. Without resolving those questions here, we observe that it is too

soon to say, one way or the other, whether Plaintiff truly has no statutory

path to judicial review under the regime that Congress has prescribed

and whether the Constitution requires judicial review in a future

proceeding.

CHAIREZ V. MAYORKAS 21

Constitution entitles him to judicial review, that will be as

true in later removal proceedings as it is here in his APA suit.

In this respect, we agree with and are bound by our recent

decision in Garcia v. U.S. Citizenship & Immigration

Services, 146 F.4th 743 (9th Cir. 2025), petition for cert.

filed, No. 25-937 (U.S. Jan. 28, 2026). 7 There, we rejected

a nearly identical argument made by a plaintiff who sought

a different sort of discretionary relief in pursuit of a U visa.

As we stated there, “we see no reason why [the plaintiff] has

a constitutional entitlement to raise her claim to judicial

review in district court as opposed to through [removal

proceedings] and [the] petition for review process.” Id. at

756. If removal proceedings turn out to be an inadequate

forum for his constitutional and legal claims, Plaintiff can

raise his constitutional challenge to the INA’s jurisdictional

provisions again in a petition for review, where the INA

expressly supplies us with jurisdiction to consider it.

D. Plaintiff Does Not Raise a Colorable Constitutional

Challenge to the Agency’s Procedures.

Plaintiff raises one argument that falls outside the

analysis discussed above. Specifically, he argues that the

agency violated procedural due process because, he asserts,

the decision maker was biased against him.

Notwithstanding the discussion above, which concerns

challenges to the discretionary determination itself, we retain

jurisdiction over colorable constitutional claims that

challenge the procedures used by the agency. On this point,

our decision in Poursina controls. In Poursina, as here, the

7

Garcia was decided after oral argument in this case, but it was argued

and submitted on an earlier date and thus has priority over the disposition

of any common legal questions. See General Order 4.1(a).

22 CHAIREZ V. MAYORKAS

agency denied the waiver of a requirement for a visa; the

plaintiff then filed suit in district court; and we held that the

statute granted discretion to the agency, so the agency’s

decision was generally unreviewable. 936 F.3d at 870–75.

But we also held in Poursina that we retained jurisdiction

over the plaintiff’s constitutional argument that he had been

deprived of due process because he allegedly failed to

receive a notice from the agency. Id. at 875–76. We held

that “[t]his constitutional claim is not subject to

§ 1252(a)(2)(B)(ii)’s jurisdictional bar,” and we addressed

the merits of the claim. Id. at 876.

Plaintiff’s constitutional claim here is, like the one in

Poursina, purely a procedural due process claim challenging

the agency’s process, not a claim challenging the underlying

merits of the agency’s discretionary determination. See id.

(holding that we have jurisdiction over a procedural

constitutional claim); Zadvydas v. Davis, 533 U.S. 678, 688

(2001) (rejecting the argument that § 1252(a)(2)(B) stripped

jurisdiction over a procedural due process claim brought in

district court and addressing the merits); see also Bouarfa,

604 U.S. at 18 n.5 (noting that the plaintiff did not allege

“that the agency violated constitutional or procedural

requirements when it revoked her petition” and expressing

“no view as to whether a lawsuit with such allegations would

be reviewable”). Accordingly, we have jurisdiction to

review Plaintiff’s procedural constitutional claim—if it is

colorable, Bogle v. Garland, 21 F.4th 637, 654 (9th Cir.

2021); Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.

2001).

Our recent decision in Garcia is not in tension with

Poursina because the plaintiff in Garcia challenged the

denial of her U visa only on statutory—not constitutional—

grounds. See Garcia, 146 F.4th at 746. Specifically, the

CHAIREZ V. MAYORKAS 23

plaintiff argued that the governing statutes did not permit

USCIS to follow a policy that requires applicants for

adjustment of status to divulge health-related information.

Id. at 747. The plaintiff asserted that the lack of an avenue

for judicial review violated the Constitution, but she did not

challenge the procedures employed by the agency. Id. at

755–56. Perhaps because the issues do not overlap, Garcia

did not cite or discuss Poursina.

Nor is there a conflict between Poursina and our decision

in Nakka v. USCIS, 111 F.4th 995 (9th Cir. 2024). As in

Garcia, we held in Nakka that, because of the channeling

aspects of § 1252(a)(2), the plaintiffs could not obtain

judicial review in district court of the agency’s denial of an

immigration benefit; ordinary challenges to the denial of

discretionary relief must proceed through a petition for

review. Nakka, 111 F.4th at 1012–15. The plaintiffs had

alleged that certain substantive policies adopted by USCIS

violated equal protection principles, that the policies were

arbitrary and capricious in violation of the APA, and that the

agency violated the APA’s rulemaking procedures in

adopting the policies. Id. at 1001. But no plaintiff

challenged the agency’s procedures in adjudicating a

specific application. Likely for that reason, Nakka had no

reason to cite or discuss Poursina when discussing the

channeling provisions. Nakka cited Poursina only in a

footnote, on an unrelated topic, in an unrelated section of the

opinion. Id. at 1008 n.14.

We nevertheless conclude that we lack jurisdiction

because Plaintiff’s claim here is entirely speculative and not

colorable. Because there is no colorable constitutional

claim, we lack jurisdiction. Bogle, 21 F.4th at 654; Torres-

Aguilar, 246 F.3d at 1271.

24 CHAIREZ V. MAYORKAS

AFFIRMED.

BEA, Circuit Judge, concurring in part and concurring in the

judgment.

There exists an irreconcilable Ninth Circuit intra-circuit

split regarding whether the jurisdiction-stripping provisions

of 8 U.S.C. § 1252(a)(2)(B) and (D) restrict all claimed

constitutional challenges to United States Citizenship and

Immigration Service’s (“USCIS”) discretionary

determinations of immigration status to a petition for review

of a final order of removal or whether such challenges may

be heard in district court. Compare Poursina v. United

States Citizenship & Immigr. Servs., 936 F.3d 868 (9th Cir.

2019) with Nakka v. United States Citizenship & Immigr.

Servs., 111 F.4th 995 (9th Cir. 2024). An en banc panel of

this Court should be constituted to resolve this irreconcilable

conflict. See Atonio v. Wards Cove Packing Co., 810 F.2d

1477, 1478–79 (9th Cir. 1987) (en banc) (“[T]he appropriate

mechanism for resolving an irreconcilable [intra-circuit]

conflict is an en banc decision. A panel faced with such a

conflict must call for en banc review, which the court will

normally grant unless the prior decisions can be

distinguished.”).

The majority neglects this conflict. Thus, I join in full as

to Parts A–C of the majority’s opinion, but I only concur as

to the result in Part D.

In Part D of the opinion, the majority confronts Chairez’s

constitutional claim in which he argues that USCIS violated

the Fifth Amendment’s Due Process Clause because the

CHAIREZ V. MAYORKAS 25

agency was biased against him. 1 Instead of applying

§ 1252(a)(2)(B) and (D)’s jurisdictional bar and channeling

provision to this constitutional claim, the majority asserts

that it is bound by Poursina’s holding that procedural due

process claims as to agency actions which deny a requested

visa status may be brought in federal district court. Maj. Op.

at 21; see Poursina, 936 F.3d at 876 (“[T]his constitutional

claim is not subject to § 1252(a)(2)([B])(ii)’s jurisdictional

bar . . . [because] ‘decisions that violate the Constitution

cannot be “discretionary,” so claims of constitutional

violations are not barred by § 1252(a)(2)(B).’” (quoting

Wong v. United States, 373 F.3d 952, 963 (9th Cir. 2004))). 2

In relying on Poursina, the majority disregards our more

recent decision in Nakka, in which we held that “[Section]

1252(a)(2)(B)(i) and (D) channel review of [a plaintiff’s]

legal and constitutional challenges to [USCIS’s denial of her

claim for adjustment of visa status] into a petition for review

from a final order of removal.” Nakka, 111 F.4th at 999

1

Chairez’s bias claim is based on his assertions that similarly situated

inadmissibility waiver applicants are consistently granted inadmissibility

waivers, USCIS followed an abnormal procedure in denying his

application, and USCIS made negative comments about his 2015

conviction in its denial of his application. See Maj. Op. at 6–9; see also

Chairez v. Mayorkas, 1:22-cv-00291-AKB, Amended Complaint, Dkt.

16 at 44–51 (D. Idaho Oct. 30, 2023).

2

Of course, that no one has “discretion” (power) to violate the

Constitution is a truism. Neither could one have a valid statutory

mandate to violate the Constitution. It is also obvious that constitutional

claims, whether they arise from the discretionary acts or mandatory acts

of the Executive, are not barred from federal court jurisdiction by § 1252

since such constitutional claims are specifically mentioned in

§ 1252(a)(2)(D) as claims that may be heard in a petition for review, as

noted below. The noted truism is a thin reed upon which to support a

claim to judicial jurisdiction.

26 CHAIREZ V. MAYORKAS

(emphasis added). Let’s examine the two cases to see if

there is the conflict noted.

In Poursina, Mohammad Poursina asked USCIS to grant

him a permanent employment-based visa under 8 U.S.C.

§ 1153(b)(2). Poursina, 936 F.3d at 869. Poursina could not

establish that his services were sought by an employer in the

U.S., as is generally required by § 1153(b)(2)(A), so he

requested a national interest waiver of the employer need

element from USCIS pursuant to § 1153(b)(2)(B)(i). Id. at

870. USCIS denied his request, and its Administrative

Appeals Office affirmed the decision. Id. Poursina brought

suit in the District of Arizona; he challenged USCIS’s denial

of his petition and asserted claims under the Administrative

Procedure Act (“APA”) and a Fifth Amendment due process

claim for claimed lack of notice regarding the “request for

evidence” that USCIS had allegedly failed to mail to him.

Id. at 870, 875. The district court held that

§ 1252(a)(2)(B)(ii) barred its review of the suit and therefore

held that it lacked subject matter jurisdiction. Id. at 870.

Poursina appealed to us. Id. We first held that “because

USCIS’s decision to deny a national-interest waiver is

specified to be in its discretion, § 1252(a)(2)(B)(ii) strips the

federal courts of jurisdiction to review USCIS’s refusal.” Id.

at 875. But we also held that Poursina’s constitutional due

process claim for said lack of notice was not subject to

§ 1252(a)(2)(B)(ii)’s jurisdictional bar because “‘decisions

that violate the Constitution cannot be “discretionary,” so

claims of constitutional violations are not barred by

§ 1252(a)(2)(B).’” Id. at 876 (quoting Wong, 373 F.3d at

963). Still, since the record proved that service of said notice

was adequate, the Court found that Poursina’s lack of notice

claim failed on the merits. Id.

CHAIREZ V. MAYORKAS 27

In Nakka, the plaintiffs were Indian nationals, who had

long resided in the U.S. on nonimmigrant work visas, and

their children, who were derivative beneficiaries of their

parents’ visas. Nakka, 111 F.4th at 999. The plaintiffs

sought to adjust their visa status to permanent resident

through employment-based immigrant visas, and their

operative complaint challenged certain generally applicable

policies that the defendants—USCIS and the U.S.

Department of State—used to determine whether dependent

children had “aged out” of eligibility to adjust their status as

derivative beneficiaries of their parents by the passage of

time. Id. The plaintiffs claimed that the challenged “aged

out” policies violated the APA and the Equal Protection

guarantee of the Due Process Clause of the Fifth

Amendment because the Child Status Protection Act’s age

calculation discriminated against Indian nationals and

constituted an invidious, national origin-based violation of

the Equal Protection Clause, incorporated into the Fifth

Amendment. Id. at 1001; see also Nakka et al v. U.S.

Citizenship and Immigration Services et al, 3:19-cv-02099-

YY, Second Amended Complaint, Dkt. 31 at 20 (D. Or. May

20, 2021).

The Nakka magistrate judge found that the court had

jurisdiction over the claims but recommended the suit be

dismissed for failure to state a claim under Fed. R. Civ. P.

12(b)(6); the district court adopted the recommendation.

Nakka, 111 F.4th at 1002; see also Nakka v. U.S. Citizenship

& Immigr. Servs., No. 3:19-cv-2099-YY, 2022 WL 248299,

at *1–2 (D. Or. Jan. 27, 2022), vacated and remanded sub

nom. Nakka, 111 F.4th 995. On appeal, we first concluded

that as to those plaintiffs who had not yet submitted

applications for adjustment of status to USCIS, their claims

were unripe, and for that reason, we lacked jurisdiction to

28 CHAIREZ V. MAYORKAS

hear them. Nakka, 111 F.4th at 1009–11. Next, we

considered plaintiff P. Peddada, who had filed an application

for adjustment of status, which USCIS had denied. Id. at

1011. We found that her claim was ripe, but we concluded

that “[a]lthough [P. Peddada] can rely on that denial to

establish ripeness . . . § 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.” Id. at 999. Thus, we also lacked jurisdiction over

P. Peddada’s claim. Accordingly, we vacated the district

court order which dismissed the case for failure to state a

claim and remanded with instructions to dismiss for lack of

jurisdiction. Id.

The Nakka panel further discussed the implications of its

ruling; it is worth quoting the analysis at length:

[W]hen 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… 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 proceedings, the denial order, and

claims challenging policies on which the

denial was based, would not be reviewable on

CHAIREZ V. MAYORKAS 29

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… 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, we normally do not require

plaintiffs to bet the farm ... by taking the

violative action 3 before testing the validity of

the law, and we do not consider this a

meaningful avenue of relief. However,

Congress can require review in this manner

by expressly limiting and channeling judicial

review . . . [A]lthough 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, and her claims are

3

An immigrant can become removable by, for instance, overstaying his

visa, see 8 U.S.C. § 1227(a)(1)(B), committing certain criminal offenses

after admission, see id. § 1227(a)(2), or violating the conditions of his

visa, which can in some circumstances be achieved by filing a

declaration announcing intent to remain beyond the termination of his

visa, see, e.g. id. §§ 1227(a)(1)(C); § 1101(a)(15)(F)(i).

30 CHAIREZ V. MAYORKAS

reviewable only if presented in a petition for

review from a final order of removal.

Id. at 1012–14 (internal quotation marks omitted, citations

omitted, and footnote added).

The holding in Nakka thus conflicts with that in

Poursina. In Poursina, we held that § 1252(a)(2)(B)(ii) and

(D) do not restrict constitutional claims to a petition for

review of a final order of removal, and that federal district

courts have subject matter jurisdiction over such

constitutional claims because “‘decisions that violate the

Constitution cannot be discretionary.’” Poursina, 936 F.3d

at 876 (quoting Wong, 373 F.3d at 963). Five years later, in

Nakka, we held that § 1252(a)(2)(B)(i) and (D) restrict

review of all challenges to an agency’s determinations,

including constitutional challenges, to the petition-for-

review process. 4 Thus, in one case, a challenge to the

constitutionality of USCIS’s discretionary decision to deny

4

While Poursina addresses § 1252(a)(2)(B)(ii) and Nakka addresses

§ 1252(a)(2)(B)(i), that is not a basis upon which to distinguish their

holdings. The majority does not suggest that such a distinction is

meaningful and for good reason. Both provisions are under the

§ 1252(a)(2)(B) heading of “Denials of discretionary relief,” and the text

of the statute gives no suggestion that constitutional challenges regarding

(i) are channeled to a petition for review of a final order of removal while

those regarding (ii) are not. Indeed, § 1252(a)(2)(D) clarifies that

“[n]othing in subparagraph (B) [which includes (i) and (ii)] . . . 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...” Section 1252(a)(2)(D) refers to § 1252(a)(2)(B) as a

whole. It draws no distinction between (i) and (ii). Additionally, Wong,

the case relied on by Poursina, also does not differentiate between

subsections (i) and (ii). Wong, 373 F.3d at 963 (“[D]ecisions that violate

the Constitution cannot be ‘discretionary,’ so claims of constitutional

violations are not barred by § 1252(a)(2)(B).”).

CHAIREZ V. MAYORKAS 31

visa adjustment relief led to jurisdiction in federal court

absent a petition for review (Poursina) and in the other, it

did not (Nakka).

In the case at hand, we are faced with the question

whether the district court has jurisdiction over Chairez’s

challenge to the constitutionality of USCIS’s discretionary

decision to deny his applications for a U visa and a waiver

of inadmissibility. Were we to follow Poursina, as the

majority has done, we would find there to be subject matter

jurisdiction over the constitutional claim (were that claim to

be “colorable”). Were we to follow Nakka, we would find

there to be no subject matter jurisdiction over the claim

unless and until it is presented on a petition for review of a

final order of removal, regardless whether the claim is

“colorable.”

The majority attempts to distinguish Nakka from

Poursina on the basis that Poursina’s Fifth Amendment due

process claim challenged the procedures followed by USCIS

and Nakka’s Fifth Amendment equal protection claim

challenged “certain substantive policies adopted by USCIS.”

Maj. Op. at 23. I see no principled reason why Fifth

Amendment equal protection claims (Nakka) would be

channeled into petitions for review by § 1252(a)(2)(B) and

(D) while Fifth Amendment due process claims (Poursina)

would not. Nor does the majority cite any authority for such

a proposition.

Sections 1252(a)(2)(B) and (D) make no such distinction

between procedural and substantive due process claims. See

§ 1252(a)(2)(B) (“[N]o court shall have jurisdiction to

review . . . any . . . 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

32 CHAIREZ V. MAYORKAS

discretion of the Attorney General or the Secretary of

Homeland Security.”) (emphasis added); § 1252(a)(2)(D)

(“Nothing in subparagraph (B) . . . 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.”) (emphasis added).

Poursina made no such distinction between procedural and

substantive due process claims. See Poursina, 936 F.3d at

876 (“This constitutional claim is not subject to

§ 1252(a)(2)([B])(ii)’s jurisdictional bar… [because]

‘decisions that violate the Constitution cannot be

“discretionary,” so claims of constitutional violations are not

barred by § 1252(a)(2)(B).’” (quoting Wong, 373 F.3d at

963)). And Nakka made no such distinction between

procedural and substantive due process claims. Nakka, 111

F.4th at 999 (“[Sections] 1252(a)(2)(B)(i) and (D) channel

review of [plaintiff’s] legal and constitutional challenges to

[USCIS’s denial for her claim of adjustment of status] into a

petition for review from a final order of removal.”)

(emphasis added). 5 Thus, I see no basis for such a

distinction.

Under the majority’s logic, a plaintiff who alleges that

the USCIS official who reviewed his application for a waiver

of inadmissibility, a precondition for the issuance of a certain

5

Furthermore, to the extent the majority argues that Zadvydas v. Davis,

533 U.S. 678 (2001), makes such a distinction between § 1252(a)(2)(B)

and (D)’s effect on procedural and substantive due process challenges,

Zadvydas involved a habeas petition after the petitioner had already been

through removal proceedings and ordered removed from the U.S., and

nowhere did the Court differentiate as to the existence of subject matter

jurisdiction between claims of procedural and substantive violations of

constitutional rights.

CHAIREZ V. MAYORKAS 33

visa, was racially biased against him, could sue USCIS in

federal district court despite the clear text of § 1252(a)(2)(B)

and (D). Yet a plaintiff who challenges racial bias in the

allocation of visas, c.f. Nakka, would have to wait to bring

such a claim in a petition for review of a final order of

removal. Racial bias in an adjudicator and racial bias in

agency allocation of visas both seem to me to be violative of

the Fifth Amendment Due Process Clause, and therefore

within the clear text of § 1252(a)(2)(B) and (D), and yet the

majority demands, without a basis that I can perceive, that

such claims be treated differently.

Poursina’s holding that constitutional claims are not

subject to § 1252(a)(2)(B)’s jurisdictional bar is not only

contrary to Nakka, but also contrary to our fellow circuits

which have considered the question. See, e.g., Quezada

Palacios v. Bondi, No. 24-2140, 2025 WL 1983482, at *4

(2d Cir. July 17, 2025) (“Assuming arguendo that Quezada

raises viable constitutional and statutory arguments

regarding USCIS’s revocation of his [Special Immigrant

Juvenile Status] or denial of his application for permanent

residence, our precedent is clear that constitutional claims or

questions of law arising out of USCIS’s denial of

discretionary relief must be raised upon a petition for review

filed with an appropriate court of appeals.” (citing Shabaj v.

Holder, 718 F.3d 48, 51 (2d Cir. 2013)) (internal quotation

marks omitted)) 6; Roland v. United States Citizenship &

6

The appellant had alleged that “8 C.F.R. § 204.11’s requirement that

[Special Immigrant Juvenile Status] applicants not be married violates

his constitutional right to freely exercise his religion under the First

Amendment to the United States Constitution” and that “the jurisdiction-

stripping provisions of 8 U.S.C. § 1252 run afoul of Article III’s

allocation of authority to the Judiciary as well as procedural due process

34 CHAIREZ V. MAYORKAS

Immigr. Servs., 850 F.3d 625, 629 (4th Cir. 2017) (“Section

1252(a)(2)(D) does permit judicial review of constitutional

claims or legal questions, but only when raised upon a

petition for review filed with an appropriate court of appeals

during removal proceedings.” (internal citations and

quotation marks omitted)) 7; Green v. Napolitano, 627 F.3d

1341, 1346 (10th Cir. 2010) (Ҥ 1252(a)(2)(D) allows

judicial review over constitutional and legal challenges only

when raised on appeal of a final order of removal.” (internal

citation and quotation marks omitted)) 8. This circuit split

would provide yet another reason for an en banc call. See

Fed. R. App. P. 40(a)(2)(C).

It is, of course, unsurprising that no other circuit has

followed Poursina’s logic, as the holding contradicts the

plain language of the statutes it purports to interpret. Even

our own Court has declined to do so. Nakka, 111 F.4th at

999; see also Akinmulero v. U.S. Dep’t of Homeland Sec.,

No. 23-35364, 2025 WL 636328, at *1 (9th Cir. Feb. 27,

2025) (following Nakka and neglecting Poursina in holding

that “Plaintiff’s legal and constitutional challenges to his

individual application for adjustment of status can only be

afforded by the Fifth Amendment.” Quezada Palacios, 2025 WL

1983482, at *4 (internal quotation marks omitted).

7

The appellants had alleged that USCIS’s denial of appellant Roland’s

Form I-130 Petition to obtain lawful permanent resident status for his

wife was “unconstitutional because it violated [their] due process rights

and their right to marry and pursue happiness.” Id. at 628.

8

The appellants had alleged that USCIS’s revocation of the original

grant of appellant Green’s Form I-130 Petition to obtain lawful

permanent resident status for his wife “violated their constitutional due

process rights because they never had the opportunity to confront or

cross-examine” the wife’s former spouse regarding his claims about a

fraudulent marriage. Id. at 1343.

CHAIREZ V. MAYORKAS 35

raised in federal court in a petition for review of a final order

of removal” (emphasis added)) 9; c.f. Garcia v. United States

Citizenship & Immigr. Servs., 146 F.4th 743 (9th Cir. 2025),

petition for cert. filed, No. 25-937 (U.S. Jan. 28, 2026)

(following the reasoning of Nakka in confirming that

Nakka’s application of § 1252(a)(2)(B) and (D)’s

jurisdictional bar and channeling provision to constitutional

challenges to USCIS’s discretionary decisions applied

equally to statutory challenges to USCIS’s discretionary

decisions).

The majority’s choice to follow Poursina not only

entrenches a poorly reasoned precedent and neglects an

intra-circuit split, but it will also have significant practical

consequences. Under the majority’s logic, despite

§ 1252(a)(2)(B)’s jurisdictional bar, an alien may bring a

constitutional claim challenging USCIS’s discretionary

denial of relief in federal district court; then, if his claim is

“colorable,” discovery will be necessary, precipitating

months or even years of litigation. See U.S. District Courts–

Combined Civil and Criminal Federal Court Management

Statistics (June 30, 2025), https://www.uscourts.gov/data-

news/data-tables/2025/06/30/federal-court-management-

statistics/n-a-3. The alien may use these proceedings to

argue for a stay in any concurrent removal proceedings, an

argument that may be compelling, considering the fact that

9

Though the district court said that the nature of his constitutional claim

was “not entirely clear,” appellant appears to have alleged that USCIS’s

denial of his Form I-212 application for readjustment of status under 8

U.S.C. § 1255 violated the Due Process Clause of the Fifth Amendment

in part because he had previously been granted a Form I-690 waiver.

Akinmulero v. Dep’t of Homeland Sec., No. C20-1135RSL, 2023 WL

356458, at *3 (W.D. Wash. Jan. 23, 2023), on reconsideration, No. C20-

1135RSL, 2023 WL 3058014 (W.D. Wash. Apr. 24, 2023).

36 CHAIREZ V. MAYORKAS

any such claim would have already been deemed to be at

least “colorable” by a federal court. See 8 C.F.R. § 1003.29.

The result will be added expense and unnecessary delays in

the removal of aliens who, while they might prefer to have

their claims heard in district courts, would have the

opportunity for their claims to be heard on a petition for

review of a final order of removal anyway.

Finally, though I agree with the majority’s ultimate

conclusion that there is no jurisdiction over Chairez’s

constitutional claim, I do not agree with the majority’s

choice to avoid jurisdiction on the basis that the claim is not

“colorable.” While I understand that it is a longstanding

practice of this Court to avoid jurisdiction based on whether

a claim is “colorable,” I think this practice is somewhat

illogical and ought to be reevaluated. See, e.g., Torres-

Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th Cir. 2001)

(finding that a claim must have “some possible validity” to

trigger jurisdiction) (internal citations and quotation marks

omitted).

“The requirement that jurisdiction be established as a

threshold matter springs from the nature and limits of the

judicial power of the United States and is inflexible and

without exception.” Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94–95 (1998) (internal quotation marks and

citation omitted) (emphasis added). This is so because

“[j]urisdiction is power to declare the law,” and “[w]ithout

jurisdiction the court cannot proceed at all in any cause.” Ex

parte McCardle, 74 U.S. 506, 514 (1868) (emphasis

added). 10 To assert that the jurisdiction of the court depends

10

The majority counterintuitively recognizes this aspect of jurisdiction,

referring to it as a “threshold question,” in an unrelated passage of the

opinion. See Maj. Op. at 18 n.4. Yet it creates a “colorability” inquiry

CHAIREZ V. MAYORKAS 37

on the merits of the claim – even upon such a low standard

as “colorable” – is antithetical to the very definition of

jurisdiction. In a sense, it is putting the cart (the merits)

before the horse (jurisdiction).

The Supreme Court has made minor exceptions to the

rule that a court may not review the merits of a claim without

first confirming that it has jurisdiction, but it has limited

those exceptions to instances in which “the alleged claim

under the Constitution or federal statutes clearly appears to

be immaterial and made solely for the purpose of obtaining

jurisdiction or where such a claim is wholly insubstantial and

frivolous.” Bell v. Hood, 327 U.S. 678, 682–83 (1946). And

even then, “[t]he accuracy of calling these dismissals

jurisdictional has been questioned.” Id. at 683. And note the

date of the Court’s decision: decades before Congress

enacted the jurisdiction-stripping provisions of § 1252.

Here, the majority asserts that Plaintiff’s due process

claim is “entirely speculative and not colorable.” Maj. Op.

at 23. But the majority offers no further analysis. Was the

claim “made solely for the purpose of obtaining

jurisdiction,” and if so, what is the basis for that assertion?

Was the claim simply “insubstantial and frivolous,” and if

so, what facts made it so? And why would Plaintiff be

unable to cure an insubstantial claim by filing an amended

complaint and stating facts that would endow his claim with

“some possible validity”? See Torres-Aguilar, 246 F.3d at

1271 (internal citations and quotation marks omitted); Fed.

that is antecedent even to the supposedly “threshold” question of

jurisdiction. Maj. Op. at 21–23. What can one call the threshold before

the threshold? A pre-threshold threshold?

38 CHAIREZ V. MAYORKAS

R. Civ. P. 15(a)(2) (“The court should freely give leave [to

amend] when justice so requires.”). 11

Of course, all of these questions would be avoided were

the majority simply to follow the clear meaning of

§ 1252(a)(2)(B) and (D), as we did in Nakka, and reject

jurisdiction on that basis. But before the Court can do so, an

en banc panel of this Court must be constituted to resolve the

irreconcilable conflict between Poursina and Nakka.

For the reasons above, as to Part D, I concur only in the

judgment, not in the reasoning invoked.

11

If it were the case that § 1252(a)(2)(B) and (D) did not apply to

Chairez’s claims, I would be inclined to find that in regard to Chairez’s

Fifth Amendment due process claim, Chairez failed to allege “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face,’” under Fed. R. Civ. P. 12(b)(6). See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). But I would not find that the Court lacked jurisdiction on

the basis of the merits of the claim, as the majority does here.