# Chairez v. Mayorkas

> Court of Appeals for the Ninth Circuit · March 5, 2026

URL: https://www.frixlaw.com/law-library/cases/11271054

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 5, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11271054

## How later opinions describe it (automated extraction)

- finding that a claim must have “some possible validity” to trigger jurisdiction
- rejecting the argument that § 1252(a)(2)(B) stripped jurisdiction over a procedural due process claim brought in district court and addressing the merits

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11271054. Public record. Not legal advice.