Cabaccang v. United States Citizenship & Immigration Services
2010 U.S. App. LEXIS 26321
| 9th Cir. | 2010Background
- Cabaccangs, Philippines citizens, entered on B-2 visas (2004); filed I-485 Adjustment petitions based on I-140 for employer-sponsored nurse position; first denial due to missing documentation; visa expiry January 16, 2005; second adjustment petitions filed about a year after expiry; USCIS again denied for lack of substantial evidence of lawful presence/status; removal proceedings subsequently initiated against both Cabaccangs; district court granted TRO and later dismissed, then refiled claims seeking APA relief; removal proceedings contemporaneous with federal action; district court ultimately denied jurisdiction and granted summary judgment for defendants; this appeal followed with the issue of district court jurisdiction in light of pending removal proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court has jurisdiction to review denial of status adjustment with removal proceedings pending | Cabaccangs contend no dismissal; finality and exhaustion not satisfied | Pending removal means nonfinal agency action and exhaustion not met | Lack of jurisdiction; removal pending means not final; must dismiss |
Key Cases Cited
- Acura of Bellevue v. Reich, 90 F.3d 1403 (9th Cir. 1996) (intra-agency ALJ review renders agency action nonfinal)
- Chan v. Reno, 113 F.3d 1068 (9th Cir. 1997) (denials of status adjustment ongoing review considerations)
- Tang v. Reno, 77 F.3d 1194 (9th Cir. 1996) (removal proceedings pending affect finality of denial)
- Jaa v. INS, 779 F.2d 569 (9th Cir. 1986) (removal proceedings distinction crucial for finality)
- Howell v. INS, Not provided in text (2d Cir. 1995) (cited for lack of jurisdiction when removal pending)
- Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005) (removal pending provides administrative relief path)
- White Mountain Apache Tribe v. Hodel, 840 F.2d 675 (9th Cir. 1988) (exhaustion of administrative remedies ordinarily required)
- Hose v. INS, 180 F.3d 992 (9th Cir. 1999) (ripe-unless removal proceedings negate ripeness)
- Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010) (ripe-when injury may occur; relates to jurisdiction timing)