Silva Mamigonian v. Michael Biggs
2013 U.S. App. LEXIS 5099
9th Cir.2013Background
- Mamigonian, Armenian national, filed a District Court Petition for Writ of Habeas Corpus, Injunctive and Declaratory Relief, and Mandamus to halt removal and compel USCIS to approve pending adjustment applications.
- USCIS denied Mamigonian’s second and third adjustment applications after the suit was filed, and the District Court dismissed for lack of jurisdiction.
- Mamigonian appealed and sought to convert the appeal into a petition under 8 U.S.C. §1252(a)(2)(D) challenging USCIS denials.
- The Ninth Circuit affirmed the District Court’s dismissal for lack of jurisdiction over habeas and mandamus claims, but held district courts have jurisdiction to review nondiscretionary, non-removal determinations under §1252(a)(2)(B)(i) when no removal proceedings are pending.
- REAL ID Act provisions strip district court habeas review over final removal orders but do not abolish jurisdiction over nondiscretionary adjustment determinations absent pending removal.
- The court concluded that, as of final action, USCIS’s denial of all adjustments would allow APA review in district court, absent pending removal proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether REAL ID Act precludes district court habeas review | Mamigonian asserts district court review remains. | Government argues habeas relief is stripped to courts of appeals. | Precluded; habeas jurisdiction barred. |
| Whether there was final agency action when suit was filed | USCIS had not made final determinations on pending adjustments. | APA requires final agency action to grant jurisdiction. | No final action at filing, jurisdiction lacking. |
| Whether district courts may review nondiscretionary 1252(a)(2)(B)(i) denials | Montero-Martinez pre-REAL ID Act permitted such review. | REAL ID Act stripped jurisdiction for this category. | Yes; district courts retain nondiscretionary review if no pending removal. |
| Whether to convert the appeal into a petition under 1252(a)(2)(D) | Convert to petition for review of legal/constitutional claims. | REAL ID Act restricts petitions to removal orders. | Conversion declined; APA review allowed instead. |
Key Cases Cited
- Montero-Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir. 2002) (nondiscretionary review remains post-Real ID Act)
- Cabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 1313 (9th Cir. 2010) (denials of status adjustment not reviewable outside removal unless final action)
- Hassan v. Chertoff, 543 F.3d 564 (9th Cir. 2008) (discretionary vs nondiscretionary review under §1252(a)(2)(B)(i))
- Lee v. U.S. Citizenship & Immigration Services, 592 F.3d 612 (4th Cir. 2010) (discretionary scope of §1252 narrowed review beyond removal context)
- Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005) (pre-REAL ID Act nondiscretionary review under §1252(a)(2)(B)(i))