Xia v. Bondi

24-2304
Xia v. Bondi




                                     In the
               United States Court of Appeals
                        For the Second Circuit


                              August Term, 2024
                                No. 24-2304

                                   SUQIN XIA,
                               Plaintiff-Appellant,

                                        v.

    PAMELA BONDI, United States Attorney General; KRISTI NOEM,
  Secretary, Department of Homeland Security; KIKA SCOTT, Acting
    Director, U.S. Citizenship and Immigration Services; CONNIE
    NOLAN, Associate Director for Service Center Operations, U.S.
   Citizenship and Immigration Services; BARBARA OWLETT, Field
   Office Director, U.S. Citizenship and Immigration Services Long
                                 Island,
                          Defendants-Appellees. ∗



 On Appeal from a Judgment of the United States District Court for
                the Eastern District of New York.



                         ARGUED: FEBRUARY 6, 2025
                          DECIDED: MAY 19, 2025

         ∗ The Clerk of Court is respectfully directed to amend the official caption
as set forth above.
 1           Before: PARKER, BIANCO, and NARDINI, Circuit Judges.
 2
 3
 4          Plaintiff-Appellant Suqin Xia, a citizen of the People’s Republic
 5   of China who has lived in the United States unlawfully for more than
 6   thirty years, applied for adjustment of status to lawful permanent
 7   resident, a discretionary form of relief, under 

. The
 8   United States Citizenship and Immigration Services (“USCIS”)
 9   denied Xia’s application after determining that she did not warrant a
10   favorable exercise of discretion. Xia challenged the agency’s decision
11   in the United States District Court for the Eastern District of New York
12   under the Mandamus Act, 

, and the Administrative
13   Procedure Act, 5 U.S.C. §§ 701–706. The district court (Allyne R. Ross,
14   District Judge) determined that 

(a)(2)(B)(i)—which, in
15   pertinent part, bars judicial review of “any judgment” regarding an
16   application made under § 1255—applied to this action, and therefore
17   dismissed the complaint for lack of subject matter jurisdiction
18   pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. We
19   agree with the district court that a denial of an application for
20   adjustment of status under § 1255 is a “judgment” for purposes of
21   § 1252(a)(2)(B)(i) regardless of whether it is issued by an immigration
22   court or USCIS. Accordingly, the judgment of the district court is
23   AFFIRMED.
24
25
26                             MARY B. MCGARVEY-DEPUY (Varuni
27                             Nelson, Kimberly A. Francis, on the brief),
28                             Assistant United States Attorneys, for Breon
29                             Peace, United States Attorney for the
30                             Eastern District of New York, Brooklyn, NY,
31                             for Defendants-Appellees.




                                        2
 1                             JEAN WANG, Wang Law Office, PLLC,
 2                             Flushing, NY, for Plaintiff-Appellant.
 3
 4
 5   WILLIAM J. NARDINI, Circuit Judge:

 6         Plaintiff-Appellant Suqin Xia, a citizen of the People’s Republic
 7   of China who has lived in the United States unlawfully for more than
 8   thirty years, applied for adjustment of status to lawful permanent
 9   resident, a discretionary form of relief, under 

. The
10   United States Citizenship and Immigration Services (“USCIS”)
11   denied Xia’s application after determining that she did not warrant a
12   favorable exercise of discretion. Xia challenged the agency’s decision
13   in the United States District Court for the Eastern District of New York
14   under the Mandamus Act, 

, and the Administrative
15   Procedure Act (“APA”), 5 U.S.C. §§ 701–706.          The district court
16   (Allyne   R.   Ross,   District   Judge)    determined   that   8 U.S.C.
17   § 1252(a)(2)(B)(i)—which, in pertinent part, bars judicial review of
18   “any judgment” regarding an application made under § 1255—
19   applied to this action, and therefore dismissed the complaint for lack
20   of subject matter jurisdiction pursuant to Federal Rule of Civil
21   Procedure 12(b)(1).

22         We agree with the district court that § 1252(a)(2)(B)(i) precludes
23   judicial review of Xia’s claims.         Although Xia argues that this
24   provision applies only to judgments by immigration courts, the
25   Supreme Court’s reasoning in Patel v. Garland, 

 (2022), and
26   the overall statutory framework lead us to conclude otherwise. We
27   hold that a denial of an application for adjustment of status under



                                          3
 1   § 1255 is a “judgment” for purposes of § 1252(a)(2)(B)(i) regardless of
 2   whether it is issued by an immigration court or USCIS. Because Xia
 3   challenges such a judgment, the jurisdictional bar applies.       Xia’s
 4   remaining arguments are unavailing. Accordingly, the judgment of
 5   the district court is AFFIRMED.

 6      I.     Background

 7             A. Xia’s Unlawful Presence in the United States

 8           Xia arrived at John F. Kennedy International Airport in New
 9   York in October 1993 without authorization to enter the United States.
10   At the time, she was several months pregnant with twin daughters,
11   and she claimed that she feared returning to China because she would
12   face persecution for violating that country’s one-child policy. She was
13   paroled into the United States pending an asylum hearing.            In
14   February 1995, an immigration judge denied her asylum application
15   and ordered her removed to her native country. But that order was
16   never executed, and Xia has remained in the United States unlawfully
17   for over three decades.

18             B. Xia’s Application for Adjustment of Status

19            In October 2021, pursuant to 

(a), Xia filed a
20   Form I-485 Application to Register Permanent Residence or Adjust
21   Status, as the immediate relative of a U.S. citizen. In a decision dated
22   March 7, 2024, USCIS denied Xia’s application, basing its decision
23   solely on discretionary grounds without making any determination
24   as to her statutory eligibility for adjustment of status. The agency




                                        4
 1   identified several factors that weighed against granting the
 2   application,   including   that   Xia   “blatantly   disregarded”   the
 3   outstanding removal order and remained in the United States in
 4   violation of U.S. law for nearly thirty years, and that she incredibly
 5   professed ignorance of the removal order during her interview for her
 6   adjustment application despite having been provided a copy of the
 7   order when it was issued in 1995. App’x 66. Additional negative
 8   factors included Xia’s three convictions for disorderly conduct, which
 9   demonstrated “a disregard for criminal law,” and her twenty-plus
10   years of unauthorized employment. 

 at 66–67. On the positive side
11   of the ledger, the agency primarily considered Xia’s status as the
12   mother of two adult U.S. citizens, but because they were born while
13   she was already in removal proceedings, her “ties to them constitute
14   after-acquired equities and [were therefore] given less weight.” 

 at
15   68. After weighing all relevant factors, the agency decided that Xia
16   did “not warrant a favorable exercise of discretion.” 

17            C. District Court Proceedings

18         On January 19, 2024, while her adjustment application was still
19   pending, Xia commenced this action under the Mandamus Act,
20   

, and Section 706(1) of the APA, seeking an order
21   directing USCIS to adjudicate the application. After USCIS denied
22   the application, Xia amended her complaint to seek judicial review of
23   that decision. She alleged that the agency violated the APA by issuing
24   a decision that was contrary to law, arbitrary and capricious, and
25   unsupported by the record. The defendants—Merrick Garland, then-
26   U.S. Attorney General; Alejandro Mayorkas, then-Secretary of the




                                        5
 1   U.S. Department of Homeland Security; Ur Mendoza Jaddou, then-
 2   Director of USCIS; and USCIS officers Connie Nolan and Barbara
 3   Owlett 1 —moved to the dismiss the complaint for lack of subject
 4   matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). 2

 5          The district court agreed with the defendants that it lacked
 6   subject matter jurisdiction over Xia’s claims. The court determined
 7   that the jurisdictional bar set forth in 

(a)(2)(B)(i), which
 8   precludes Article III courts from reviewing “any judgment regarding
 9   the granting of relief under section . . . 1255,” foreclosed this action.
10   Under binding Second Circuit precedent, the court explained, the
11   jurisdictional bar “strips the courts of jurisdiction to review the [Board
12   of Immigration Appeals]’s weighing of discretionary factors in
13   denying an application for adjustment of status under § 1255.” Xia v.
14   Garland, No. 24-CV-395 (ARR) (SJB), 

, at *2 (E.D.N.Y.
15   Aug. 23, 2024) (first citing Wallace v. Gonzales, 

, 138
16   (2d Cir. 2006); and then citing Guyadin v. Gonzales, 

, 468
17   (2d Cir. 2006)). Applying that rule here, the court concluded that
18   because USCIS denied Xia’s application as a matter of discretion, the
19   denial constituted an unreviewable “judgment” for purposes of




            1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Pamela Bondi, Secretary of Homeland Security Kristi Noem, and Acting
     Director of USCIS Kika Scott are automatically substituted for their predecessors
     as defendants.

            2 The defendants also moved to dismiss any Mandamus Act claim, in the
     alternative, for failure to state a claim under Rule 12(b)(6).




                                            6
 1   § 1252(a)(2)(B)(i). Accordingly, the court granted the defendants’
 2   motion to dismiss pursuant to Rule 12(b)(1).

 3      II.      Discussion

 4            On appeal, Xia contends that the district court erred in
 5   dismissing her complaint for lack of subject matter jurisdiction. She
 6   argues, among other things, that § 1252(a)(2)(B)(i) does not apply here
 7   because it bars judicial review only of judgments by an immigration
 8   court, not of decisions by USCIS. We disagree. The district court
 9   correctly determined that § 1252(a)(2)(B)(i) precludes judicial review
10   of USCIS’s decision and therefore properly dismissed Xia’s claims
11   under Rule 12(b)(1). Xia’s remaining arguments are unavailing.

12               A. Standard of Review

13            A district court properly dismisses an action for lack of subject
14   matter jurisdiction pursuant to Rule 12(b)(1) if the court “lacks the
15   statutory or constitutional power to adjudicate it.”        Cortlandt St.
16   Recovery Corp. v. Hellas Telecomms., S.Á.R.L, 

, 416–17
17   (2d Cir. 2015) (internal quotation marks omitted). The plaintiff bears
18   the burden of establishing by a preponderance of the evidence that
19   subject matter jurisdiction exists. See Nouritajer v. Jaddou, 

,
20   88 (2d Cir. 2021). On appeal from a dismissal under Rule 12(b)(1), we
21   review the district court’s legal conclusions de novo and its factual
22   findings for clear error. 

                                          7
 1              B. Statutory and Regulatory Framework

 2          Section 1255(a) provides that “[t]he status of an alien who was
 3   inspected and admitted or paroled into the United States,” otherwise
 4   known as an arriving alien, “may be adjusted by the Attorney
 5   General, in his discretion and under such regulations as he may
 6   prescribe, to that of an alien lawfully admitted for permanent
 7   residence,” so long as the alien meets the statutory requirements for
 8   such adjustment.           Congress later extended jurisdiction over
 9   applications for adjustment of status to USCIS, a component agency
10   of the Department of Homeland Security, in addition to the
11   Department of Justice. See 

(b)(5), 557; Perez v. U.S.
12   Bureau of Citizenship & Immigr. Servs. (USCIS), 

, 965 n.3
13   (11th Cir. 2014). When, as in this case, an arriving alien files an
14   adjustment application outside the context of removal proceedings,
15   USCIS has exclusive jurisdiction over the application. 3 See 8 C.F.R.
16   §§ 245.2(a)(1), 1245.2(a)(1); see also Brito v. Mukasey, 

, 166
17   (2d Cir. 2008) (recognizing that the regulations “provide USCIS with
18   jurisdiction to adjudicate adjustment of status applications for all
19   arriving aliens,” subject to a narrow exception not applicable here).

20          “In general, pursuant to 

(a)(2)(B)(i), federal
21   courts lack jurisdiction to review judgments pertaining to certain
22   forms of immigration relief,” Penaranda Arevalo v. Bondi, 

,
23   337 (2025), including applications for adjustment of status under


            3  Xia stated on her adjustment application, and there is no dispute, that her
     status at the time of her entry into the United States was that of an “arriving alien”
     who “[w]as inspected at a port of entry and paroled.” Dist. Ct. Dkt. No. 23-2 at 41.




                                               8
 1   

. By its terms, § 1252(a)(2)(B)(i) bars review of “any
 2   judgment” pertaining to such relief:

 3          Notwithstanding any other provision of law (statutory or
 4          nonstatutory), . . . except as provided in subparagraph
 5          (D), and regardless of whether the judgment, decision, or
 6          action is made in removal proceedings, no court shall
 7          have jurisdiction to review—(i) any judgment regarding
 8          the granting of relief under section 1182(h), 1182(i),
 9          1229b, 1229c, or 1255 of this title . . . .

10   Section 1252(a)(2)(D) preserves judicial review in a narrow set of
11   circumstances: “Nothing in subparagraph (B) . . . shall be construed
12   as precluding review of constitutional claims or questions of law
13   raised upon a petition for review [from a final order of removal] filed
14   with an appropriate court of appeals.”

15              C. Whether § 1252(a)(2)(B)(i) Applies to USCIS’s Denial of
16                 Xia’s Application for Adjustment of Status

17          The principal question presented for our review is whether a
18   decision by USCIS to deny an application for adjustment of status
19   under § 1255 constitutes a “judgment” to which the jurisdictional bar
20   in § 1252(a)(2)(B)(i) attaches. 4 The answer is yes. In reaching this


            4 In Rahman v. Mayorkas, we acknowledged that, after the Supreme Court’s
     decision in Patel v. Garland, 

 (2022), “there is an open question as to
     whether we have jurisdiction to review any aspect of a USCIS decision denying
     discretionary relief, such as a status adjustment, outside of a removal proceeding.”
     No. 22-904-CV, 

, at *1 n.2 (2d Cir. Mar. 8, 2023) (summary order).




                                              9
 1   conclusion, we join every other circuit that has addressed this
 2   question. 5

 3                        1. The Plain Text of the Statute

 4          To ascertain the scope of § 1252(a)(2)(B)(i), “we start where we
 5   always do: with the text of the statute.” Van Buren v. United States,
 6   

 (2021). The plain text of this provision compels our
 7   conclusion that it encompasses decisions by USCIS to deny or grant
 8   relief under § 1255. The preamble to this subsection provides that the
 9   jurisdictional bar applies “regardless of whether the judgment,
10   decision, or action is made in removal proceedings.”                        8 U.S.C.

     We declined to address that question then. Today, we answer the narrower
     question set forth here.

            5  See Momin v. Jaddou, 

 (5th Cir. 2024) (holding that
     § 1252(a)(2)(B)(i) applied to USCIS’s denial of an adjustment application); Viana
     Guedes v. Mayorkas, 

, 71 (1st Cir. 2024) (“The district court plainly
     lacked jurisdiction under 

(a)(2)(B)(i) to hear appellants’ claims
     challenging USCIS’ denial of their adjustment of status applications.”); Nakka v.
     U.S. Citizenship & Immigr. Servs., 

, 1008 (9th Cir. 2024) (“[B]ecause of
     the ‘regardless’ clause, § 1252(a)(2)(B)(i) must be interpreted as also encompassing
     judgments regarding the granting of discretionary relief that are made by USCIS
     and DHS outside removal proceedings.”); Hatchet v. Andrade, 

     (6th Cir. 2024) (holding that pursuant to § 1252(a)(2)(B)(i), “the district court lacked
     jurisdiction to review the factual findings of USCIS”); Abuzeid v. Mayorkas, 

 (D.C. Cir. 2023); Britkovyy v. Mayorkas, 

, 1028–30 (7th Cir.
     2023) (Ҥ 1252(a)(2)(B)(i) operates to eliminate judicial review of the denial of an
     adjustment-of-status application by USCIS.”); Lee v. U.S. Citizenship & Immigr.
     Servs., 

 (4th Cir. 2010); see also Commandant v. Dist. Dir., Miami
     Dist. (S24), USCIS, No. 21-10372, 

, at *1–2 (11th Cir. July 29, 2024)
     (unpublished opinion) (holding that “under Patel, section 1252(a)(2)(B)(i) stripped
     the district court of jurisdiction to review” the plaintiffs’ challenge to USCIS’s
     denials of their applications for adjustment of status under § 1255).




                                               10
 1   § 1252(a)(2)(B).   As the Supreme Court noted in Patel, “USCIS
 2   [is assigned] authority over applications for adjustment of status
 3   made outside of removal proceedings.” 

 (citing 8 C.F.R.
 4   § 245.2(a)(1)). In other words, USCIS is the only entity that can issue
 5   an authoritative decision on adjustment applications outside the
 6   removal context, and it is therefore the only entity whose decisions on
 7   those applications could fall within the scope of the “regardless”
 8   clause of § 1252(a)(2)(B)(i). Thus, Congress’s clear directive that no
 9   federal court may review a denial of an adjustment application under
10   § 1255, even if it occurs outside removal proceedings, necessarily
11   applies to decisions by USCIS.         See Lee, 

 (“[T]he
12   language ‘regardless of whether the judgment, decision, or action is
13   made in removal proceedings’ makes clear that the jurisdictional
14   limitations imposed by § 1252(a)(2)(B) also apply to review of agency
15   decisions made outside of the removal context.”); Abuzeid, 

   584 (same); see also Momin, 

 (noting that “every court
17   of appeals to consider the question has held that the jurisdictional bar
18   applies outside the removal context—including to USCIS denials of
19   adjustment of status”).

20         Xia’s reading of § 1252(a)(2)(B)(i) is irreconcilable with the
21   statutory text and would nullify part of Congress’s directive. As Xia
22   notes, “[i]t is a cardinal principle of statutory construction that a
23   statute ought . . . to be so construed that, if it can be prevented, no
24   clause, sentence, or word shall be superfluous, void, or insignificant.”
25   Appellant’s Br. 20 (quoting TRW Inc. v. Andrews, 

, 31
26   (2001)). But it is Xia’s interpretation of the statute—not the district




                                       11
 1   court’s—that would violate this principle. See Torres v. Lynch, 

   452, 463 n.8 (2016) (rejecting appellant’s reading of a statute because
 3   it “conflict[ed] with our ordinary assumption that Congress, when
 4   drafting a statute, gives each provision independent meaning”). If
 5   only USCIS can decide an adjustment application outside the removal
 6   context and its decision does not constitute a “judgment” for
 7   purposes of § 1252(a)(2)(B)(i), the “regardless” clause would be
 8   meaningless, at least with respect to the enumeration of § 1255 relief.
 9   See United States v. Butler, 

 (1936) (“These words cannot
10   be meaningless, else they would not have been used.”).

11                     2. Patel v. Garland

12         The Supreme Court’s reasoning in Patel confirms our
13   conclusion. In that case, which concerned an adjustment of status
14   application made under § 1255(i) by an alien in removal proceedings,
15   the Court considered whether § 1252(a)(2)(B)(i) forecloses judicial
16   review of “factual findings that underlie a denial of relief,” and held
17   that it does. Patel, 

, 333–34.

18         The Court explained that § 1252(a)(2)(B)(i) has an expansive
19   reach. The Court agreed with the starting premise that “‘judgment’
20   means any authoritative decision.” Id. at 337–38. Consistent with this
21   “broad definition,” § 1252(a)(2)(B)(i) “does not restrict itself to certain
22   kinds of decisions.     Rather, it prohibits review of any judgment
23   regarding the granting of relief under § 1255 and the other enumerated
24   provisions.” Id. The modifier “any,” the Court elaborated, “means
25   that the provision applies to judgments of whatever kind under




                                         12
 1   § 1255, not just discretionary judgments or the last-in-time
 2   judgment.” Id. at 338 (internal quotation marks omitted). “Similarly,
 3   the use of ‘regarding’ ‘in a legal context generally has a broadening
 4   effect, ensuring that the scope of a provision covers not only its subject
 5   but also matters relating to that subject.’” Id. at 338–39 (emphasis
 6   added) (quoting Lamar, Archer & Cofrin, LLP v. Appling, 

,
 7   717 (2018)).   In short, the Court agreed that § 1252(a)(2)(B)(i)’s
 8   jurisdictional bar “encompasses any and all decisions relating to the
 9   granting or denying of discretionary relief,” including factual
10   findings. Id. at 337 (internal quotation marks omitted).

11         Patel severely undermines Xia’s argument that the term
12   “judgment” for purposes of § 1252(a)(2)(B)(i) includes only the
13   decisions of an immigration court, not the decisions of USCIS. The
14   Court concluded that the term reaches even an immigration judge’s
15   credibility determination, a quintessential factual finding. See id. at
16   341 (observing that “[u]sing the word ‘judgment’ to describe . . . [a]
17   credibility determination is perfectly natural” and emphasizing that
18   the jurisdictional bar applies to “any judgment”). It follows that a
19   decision by USCIS to deny an adjustment application under § 1255
20   fits within this broad definition. Indeed, the Court acknowledged
21   that its interpretation of § 1252(a)(2)(B)(i) could have the
22   “consequence of precluding all review of USCIS denials of
23   discretionary relief” because “[t]hose decisions are made outside of
24   the removal context, and subparagraph (D) preserves review of legal
25   and constitutional questions only when raised in a petition for review
26   of a final order of removal.” Id. at 345.




                                        13
 1         While it declined to decide the reviewability of USCIS
 2   decisions, the Court suggested that foreclosing review of those
 3   decisions might not be an “unintended” consequence of its opinion,
 4   as Patel and the government framed it, but rather “consistent with
 5   Congress’ choice to reduce procedural protections in the context of
 6   discretionary relief.” Id. at 345–46. That choice followed INS v. St.
 7   Cyr, 

 (2001), where the Court explained that reading
 8   § 1252, as it existed then, to bar review of all legal questions in removal
 9   cases could raise constitutional concerns. Id. at 300. Through the
10   post-St. Cyr amendments to § 1252, the Court observed, Congress
11   “preserved review of legal and constitutional questions made within
12   removal     proceedings”     and     simultaneously      “extended     the
13   jurisdictional   bar   to   judgments    made     outside    of   removal
14   proceedings.” Patel, 596 U.S. at 345–46. Put differently, “[t]o the
15   extent Congress decided to permit judicial review of a constitutional
16   or legal issue bearing upon the denial of adjustment of status, it
17   intended for the issue to be raised to the court of appeals during
18   removal proceedings.” Id. at 346 (quoting Lee, 

). Thus,
19   the Court suggested, “it is possible that Congress did, in fact, intend
20   to close th[e] door” to judicial review of USCIS decisions. Id. at 345.

21         The Court went on to emphasize that it would not disregard
22   the text of § 1252(a)(1)(B)(i) to accommodate the parties’ concern that
23   giving full effect to the plain meaning of the provision could insulate
24   USCIS decisions from judicial review. Although the parties urged it
25   “to avoid the risk of this result,” the Court asserted that “it would be
26   difficult to maintain that this consequence conflicts with the statutory




                                         14
 1   structure.” Id. at 346. To the contrary, this result—whatever its merits
 2   as a matter of policy—comports with “the best interpretation of the
 3   statutory text.” Id. And the statutory text, the Court stressed, dictates
 4   the meaning of the provision. See id. (citing Niz-Chavez v. Garland,
 5   

 (2021), which observed that “no amount of
 6   policy-talk can overcome a plain statutory command”).

 7          Nothing in the Court’s reasoning supports Xia’s argument that
 8   only a decision by an immigration court can constitute a judgment to
 9   which the jurisdictional bar attaches. Indeed, if Xia were correct, Patel
10   could have easily dispatched the parties’ concern that the Court’s
11   interpretation of § 1252(a)(2)(B)(i) would foreclose judicial review of
12   USCIS decisions by simply explaining that the provision does not
13   apply to those decisions at all. Instead, the Court recognized the
14   possibility that its holding could bar judicial review of those
15   decisions, and then dismissed the parties’ concern on the ground that
16   this result would be “consistent with Congress’ choice to reduce
17   procedural protections in the context of discretionary relief.” Id. at
18   346.

19          In sum, the logic of Patel leads ineluctably to the conclusion that
20   § 1252(a)(2)(B)(i) bars review of a USCIS denial of an application for
21   adjustment of status.

22             D. Xia’s Remaining Arguments

23          Xia raises two additional arguments in an attempt to
24   circumvent § 1252(a)(2)(b)(i)’s jurisdictional bar. First, she argues that
25   USCIS’s denial was not discretionary, and therefore does not fall



                                         15
 1   within this provision, because it was “based on statutory grounds that
 2   have merely been couched in discretionary language.” Appellant’s
 3   Br. 21–22. Even if we agreed that the agency’s decision was not an
 4   exercise of discretion (though we agree with the district court that it
 5   was), this argument would nonetheless be unavailing. The Supreme
 6   Court in Patel explained that the jurisdictional bar “applies to
 7   judgments of whatever kind under § 1255, not just discretionary
 8   judgments or the last-in-time judgment.” 

 (emphasis
 9   added) (internal quotation marks omitted). In fact, the Court rejected
10   the government’s argument that the term “judgment” for purposes of
11   § 1252(a)(2)(B)(i) “refers exclusively to a ‘discretionary’ decision,”
12   explaining that “[a] ‘judgment’ does not necessarily involve
13   discretion, nor does context indicate that only discretionary
14   judgments are covered by” the jurisdictional bar.        Id. at 340–43.
15   Therefore, USCIS’s denial is unreviewable regardless of whether it
16   rested on discretionary factors, a determination that Xia is statutorily
17   ineligible for adjustment of status, or both.

18         Xia’s second argument fares no better. She contends that the
19   district court had subject matter jurisdiction under § 1252(a)(2)(D)
20   because her claims raised several questions of law. Even if we agreed
21   that Xia has raised legitimate questions of law (though we agree with
22   the district court that she has not), this argument, too, would be
23   unavailing.     Section 1252(a)(2)(D) permits judicial review of
24   constitutional claims or questions of law only by an “appropriate
25   court of appeals,” and only “upon a petition for review” from a final
26   order of removal. Xia brought this case in a district court, and she




                                        16
 1   was not petitioning for review of a final order of removal. See Hassan
 2   v. Chertoff, 

 (9th Cir. 2008) (holding that
 3   § 1252(a)(2)(D) was inapplicable because the plaintiff’s “challenge to
 4   the denial of adjustment was not raised upon a petition for review
 5   filed with th[e] court [of appeals]” but instead “on direct appeal from
 6   the district court”). Accordingly, the jurisdictional savings clause in
 7   § 1252(a)(2)(D) provides no basis for subject matter jurisdiction in this
 8   case.

 9      III.     Conclusion

10           In summary, we hold:

11           1. A denial of an application for adjustment of status under
12   

 is a “judgment” for purposes of § 1252(a)(2)(B)(i)
13   regardless of whether it is issued by an immigration court or USCIS.

14           2. The district court committed no error in (a) concluding that
15   § 1252(a)(2)(B)(i) precludes judicial review of Xia’s challenge to
16   USCIS’s denial of her application for adjustment of status under
17   § 1255, and therefore (b) dismissing Xia’s complaint for lack of subject
18   matter jurisdiction pursuant to Federal Rule of Civil Procedure
19   12(b)(1).

20           For the foregoing reasons, we AFFIRM the district court’s
21   judgment.




                                        17