Nsinano v. Sessions, 236 F. Supp. 3d 1133

Petitioner Jason Nsinano, a federal immigration detainee, filed a pro se 28 U.S.C. § 2241 habeas petition seeking a declaration that he is eligible for U nonimmigrant status (a "U visa") and an order compelling issuance of a law-enforcement certification based on alleged identity theft while detained.
The petition named the U.S. Attorney General as respondent; the Court substituted Jeff Sessions for Loretta Lynch after the change in administration.
U visa eligibility requires, inter alia, that the applicant be a victim of qualifying criminal activity, have suffered substantial abuse, possess information about the crime, and be helpful to law enforcement; USCIS regulations state USCIS has "sole jurisdiction" over all U visa petitions and discretion over evidentiary evaluations.
Petitioner presented grievance and agency complaint documents but no evidence that the alleged identity thief was investigated or prosecuted; the record lacked a law-enforcement certification.
The district court held that judicial review of USCIS discretionary U-visa determinations is barred and therefore dismissed the § 2241 petition for lack of subject-matter jurisdiction. The dismissal was ordered with prejudice because jurisdictional defects could not be cured.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether federal court has jurisdiction to review USCIS discretionary U-visa eligibility determinations	Nsinano asked the court to declare him eligible for a U visa and to compel a law-enforcement certification for identity theft	USCIS has sole jurisdiction and discretion over U-visa petitions; courts lack jurisdiction to review discretionary determinations	Court held it lacks subject-matter jurisdiction to review U-visa eligibility or compel certification (dismissal)
Whether dismissal should be with leave to amend or with prejudice	Nsinano could potentially add facts or claims	Respondent argued statutory jurisdictional bar cannot be cured by amendment	Court dismissed with prejudice because statutory jurisdictional defect is irremediable

Herklotz v. Parkinson, 848 F.3d 894 (9th Cir. 2017) (federal courts are courts of limited jurisdiction)
Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089 (9th Cir. 2003) (subject-matter jurisdiction cannot be expanded by consent)
United States v. Cisneros-Rodriguez, 813 F.3d 748 (9th Cir. 2015) (U-visa and related forms of relief are discretionary)
Lee v. Holder, 599 F.3d 973 (9th Cir. 2010) (USCIS has sole jurisdiction over U-visa claims under 8 C.F.R. § 214.14)
Gutierrez-Chavez v. INS, 298 F.3d 824 (9th Cir. 2002) (habeas review available only for failures to exercise discretion lawfully, not for unwise but lawful discretionary decisions)
INS v. St. Cyr, 533 U.S. 289 (2001) (habeas traditionally does not review discretionary determinations)