Nakka v. U.S. Citizenship & Immigration Servs.

111 F.4th 995

Nagendra Kumar NAKKA; Nitheesha Nakka; Srinivas Thodupunuri; Ravi Vathsal Thodupunuri; Rajeshwar Addagatla; Vishal Addagatla; Satya Venu Battula; Sandeep Battula; Siva Peddada; Pavani Peddada; Venkata Peddada; Abigail Edwards; Miriam Edwards-Budzadzija, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; United States Department of State, Defendants-Appellees.

No. 22-35203

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 7, 2023 Portland, Oregon

Filed August 6, 2024

Appeal from the United States District Court for the District of Oregon Youlee Yim You, Magistrate Judge, Presiding, D.C. No. 3:19-cv-02099-YY

Brent W. Renison (argued), Parrilli Renison LLC, Portland, Oregon, for Plaintiffs-Appellants.

Victor M. Mercado-Santana (argued), Trial Attorney, Civil Division, Office of Immigration Litigation; Samuel P. Go, Assistant Director; William C. Peachey, Director; Office of Immigration Litigation; Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division; United States Department of Justice; for Defendants-Appellees.

Laura K. McNally and Nicole A. Tavers, Loeb & Loeb LLP, La Grange, Illinois; Peter S. Margulies, Roger Williams University School of Law, Bristol, Rhode Island; for Amicus Curiae Immigration Law Professors.

Matt Adams, Glenda M. Aldana Madrid, Leila Kang, and Aaron Korthuis, Northwest Immigrant Rights Project, Seattle, Washington; Mary A. Kenney and Kristin Macleod-Ball, National Immigration Litigation

Alliance, Brookline, Massachusetts; for Amici Curiae National Immigration Litigation Alliance and Northwest Immigrant Rights Project.

Before: Milan D. Smith, Jr., Danielle J. Forrest, and Jennifer Sung, Circuit Judges.

Opinion by Judge Sung;

Concurrence by Judge Forrest

OPINION

SUNG, Circuit Judge:

Plaintiffs in this putative class action are Indian nationals, who have long resided in the United States on nonimmigrant work visas, and their children, who are derivative beneficiaries of their parents' visas. Plaintiffs seek to adjust their status to permanent resident through employment-based immigrant visas, and their operative complaint challenges certain generally applicable policies that Defendants—U.S. Citizenship and Immigration Services ("USCIS") and the U.S. Department of State ("DOS")—use to determine whether dependent children have "aged out" of eligibility to adjust their status as derivative beneficiaries of their parents. Plaintiffs claim that the challenged policies violate the Equal Protection guarantee of the federal constitution and the Administrative Procedure Act ("APA").

The district court granted Defendants' motion to dismiss Plaintiffs' complaint for failure to state a claim, with leave to amend. Instead of amending their complaint, Plaintiffs filed this appeal. While this case was pending, the Supreme Court decided Patel v. Garland, 596 U.S. 328, 142 S.Ct. 1614, 212 L.Ed.2d 685 (2022), which held that, under 8 U.S.C. § 1252(a)(2)(B)(i), "[f]ederal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under § 1255 and the other provisions enumerated in § 1252(a)(2)(B)(i)." 596 U.S. at 347, 142 S.Ct. 1614. Defendants' principal argument here is that § 1252(a)(2)(B)(i), as interpreted in Patel, also strips federal courts of subject matter jurisdiction to hear Plaintiffs' challenges to USCIS and DOS policies.

We conclude that this case must be dismissed because we lack constitutional and statutory jurisdiction over Plaintiffs' claims challenging Defendants' policies. We disagree with the Government that the "plain language of the statute and the rationale of Patel" compel the conclusion that § 1252(a)(2)(B)(i) strips federal courts of jurisdiction over Plaintiffs' claims. Rather, we conclude that § 1252(a)(2)(B)(i) does not categorically strip federal district courts of jurisdiction to hear Plaintiffs' claims, which challenge generally applicable agency policies without referring to or relying on denials of individual applications for relief. However, we conclude that most of the named plaintiffs' claims are not ripe because they have not applied for adjustment of status and USCIS has not denied their applications based on the challenged policies. One named plaintiff did apply for adjustment of status, and USCIS denied her application based on the challenged policies. Although she can rely on that denial to establish ripeness, we agree with the Government that § 1252(a)(2)(B)(i) and (D) channel review of her legal and constitutional challenges to that denial into a petition for review from a final order of removal. Accordingly, we vacate the district court order and remand with instructions to dismiss for lack of jurisdiction.

I. BACKGROUND

The named plaintiffs are Indian nationals and their dependent children who seek to adjust their status to lawful permanent resident. Plaintiff parents came to the United States on employment-based non-immigrant visas, which grant them lawful status for a temporary period. See 8 U.S.C. § 1101(a)(15)(H)(i)(b) (describing the so-called H-1B nonimmigrant visa status). Plaintiff children entered the country with their parents in a lawful derivative nonimmigrant status. See 8 C.F.R. § 214.1(a)(1)(iii), (a)(2) (describing the H-4 derivative nonimmigrant status for dependents of H-1B visa holders).

Plaintiff parents' employers subsequently petitioned USCIS for immigrant visa classification for Plaintiff parents. See 8 U.S.C. § 1153(b) (describing employment-based immigrant visa categories); see also Zixiang Li v. Kerry, 710 F.3d 995, 997-98 (9th Cir. 2013) (summarizing petition process). Plaintiff parents included their children as derivative beneficiaries on these petitions. With approved petitions, Plaintiff parents and children are eligible to receive an immigrant visa and apply for "adjustment" of their nonimmigrant status to that of lawful permanent residents. See Babaria v. Blinken, 87 F.4th 963, 972 (9th Cir. 2023) (explaining adjustment of status and the statutory criteria for adjustment under 8 U.S.C. § 1255).

Individuals with approved petitions must wait for an immigrant visa to become available before USCIS will allow them to apply for adjustment. 8 U.S.C. § 1255(a) (requiring "an immigrant visa [be] immediately available" before an adjustment application is filed). Generally, employment-based immigrant visas become available in the order in which visa petitions are filed. 8 U.S.C. § 1153(e)(1). But because visa demand exceeds annual statutory caps on the number of visas that USCIS may issue, visa availability is also subject to a formula that incorporates several "interrelated factors," including: (1) the "preference category" or type of visa issued, and (2) the applicant's country of birth, also known as the country of "charge[ability]." Babaria, 87 F.4th at 972-74 (explaining numerical limitations and relevant factors).¹ DOS tracks visa availability by means of a monthly "Visa Bulletin," which lays out—by preference category and country—when immigrant visas are expected to become available to applicants. See 8 C.F.R. § 245.1(g)(1). Here, Plaintiffs' visas are all chargeable to India. Historically, large numbers of Indian nationals have applied for immigrant visas, and consequently, visa wait times for Indians have lasted years—if not decades, often exceeding wait times for other foreign nationals. See Babaria, 87 F.4th at 973-75 (explaining how this issue impacts Indian applicants). Plaintiffs' individual cases are no exception.

These long wait times create a potential problem for Plaintiff children, who seek to adjust their status as the derivative "child[ren]" of individuals "entitled to [] immigrant status." 8 U.S.C. § 1153(d). Section 1101(b)(1) defines "child" as an "unmarried person under twenty-one years of age." Because Plaintiffs have waited years for visas to become available, Plaintiff children are at risk of losing their derivative status by turning 21 and "aging out." See Scialabba v. Cuellar de Osorio, 573 U.S. 41, 45, 134 S.Ct. 2191, 189 L.Ed.2d 98 (2014) (plurality opinion) (explaining the aging-out problem).

To address the aging-out problem faced by Plaintiff children and others similarly situated, Congress passed the Child Status Protection Act ("CSPA"), Pub. L. No. 107-208, 116 Stat. 927 (2002). CSPA provides a formula that partially tolls a child's age for immigration purposes. The statute states that:

a determination of whether an alien satisfies the age requirement [at § 1101(b)(1), the statutory definition of "child"] ... shall be made using—

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

8 U.S.C. § 1153(h)(1). In other words, a child applicant's "CSPA age is calculated by subtracting the number of days the petition on which the applicant seeks to adjust status was pending (pending time) from the applicant's age on the date the immigrant visa becomes available to the applicant (age at time of visa availability)." 7 USCIS Policy Manual, ch. 7, pt. F(2). Thus, the date on which an immigrant visa becomes available to an applicant affects their CSPA age.

Over time, USCIS has adopted different methods for determining when an immigrant visa becomes available to an applicant. At issue in this case is the method the agency employed beginning in 2018. See USCIS, Policy Alert: Child Status Protection Act, No. PA-2018-05 (May 23, 2018) (hereinafter "2018 USCIS CSPA Policy") (modifying the USCIS Policy...