Chairez v. Mayorkas - Immigration Waiver of Inadmissibility

FOR PUBLICAT ION UNITE D STATES COURT OF APPE ALS FOR THE NI NTH CIR CUIT SOSIMO VERA CHA IREZ, Plaintiff - A ppellant, v. Secretary ALEJAN DRO MAYORKAS, S ecretary of th e U.S. Depar tment of Homeland Secu rity; UR M. JADDOU, Dir ector of U.S. Citizenship & I mmigration Se rvices (USCIS); UNITED STATES CITIZENSH IP AND IMMIGRATION SER VICES; LAURA ZUCHOWSK I, Director of the Vermo nt Ser vice C ent er of USCI S, Defendants - Appell ees. No. 24-4137 D.C. No. 1:22- cv -00291- AKB OPINION Appeal from the United States D istrict Court for the District of Idaho Amanda K. Brailsford, District Judge, Presiding Argued and Submitte d July 11, 2025 Seattl e, Washi ngton

2 C HAIREZ V. M AYORKAS Filed March 5, 2026 Before: S usan P. Graber, Carlos T. Bea, and Mark J. Bennett, Circuit Judges. Per Curiam Opinion; Concurrence by Judge Bea SUMMARY * Immigration The pan el affirmed the district court’s d ismissal, for la ck of jurisdic tion, of Plain tiff Sosimo Vera Cha irez’s cha llenge under the Administrative Procedure Act to the United States Citizenship and Immigration Services’ denial of his request for a waive r o f inadmissi bility, which he had sought to be eligible for a U visa. The panel held that th e agency ’s den ial of a waiv er of inadmissibility under 8 U.S.C. § 1182(d)(14) falls within 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes judicial review of agency action “the authority for which is specified under this subchapte r to be in the discretion of the . . . Secreta ry.” The statute spe aks in permiss ive terms by using “may” and the statute’s instruction that t he waiver may is sue if th e Secretar y “consi ders” it to be in the nati onal or public in terest rein forces its discretion ary nat ure. * This s ummary consti tutes no par t of the opi nion of the c ourt. It ha s been pre pared by c ourt staff for the convenie nce of t he reader.

C HAIREZ V. M AYORKAS 3 The panel r ejected Plaintiff ’s argument tha t the court had jurisdiction to review the Secretary’s decision because the phrase “the public or national inte rest” is a judicially manageabl e st andard. In doing so, the panel recognize d that the Supreme Court’s dec ision in Bouarfa v. Mayorkas, 604 U.S. 6 (2024), overruled the holding and methodology set out in ANA International v. Way, 393 F.3d 886 (9th Cir. 2004), which had focused on whether the statutory term — considered in isolation — provided a re viewable stan dard. Following Bouarfa, when Congress signals that it is merely providing guidance to the age ncy on its exercise of discretio n — as opposed to providing prerequis ites — the discretio nary judgmen t call as a whole falls within the jurisdiction - stripping provision of 8 U.S.C. § 1252(a)(2)(B)(ii). The panel also concluded that 8 U.S.C. § 125 2(a)(2)(D), which expressly preserves judicial review of con stitutional and legal claims, does not provide district c ourts with jurisdiction because it only preserves review when such claims are rais ed in a pet it i on for review f rom a final order of removal “filed with an appropriate court of appeals.” The panel also reject ed, at this p rocedur al junct ure, Plaintiff’ s argument that the statutory sche me unconstitutionally deprived him of any judicial review. To the exten t Plai ntiff h ad a vi able ch allenge t o the agency ’s decisions, the only place he could advance that claim is in removal proceedings and a subsequent petition for review in a court of appeals. Finally, although this court held, in Poursina v. U.S. Citizenship & Immigr. Servs., 936 F.3d 868 (9th Cir. 2019), that the court retains jurisdi ction over colorable constitutional claims that challenge agency procedures, the

4 C HAIREZ V. M AYORKAS panel concluded that it lacke d jurisdiction here because Plaintiff’ s constitutional claim was e ntirely spec ulative and not colorable. The p anel al so con cluded t hat t here is n o confli ct between Poursi na a nd Nakka v. USCIS, 111 F.4th 995 (9th Cir. 2024). Concurring in part and concurring in the judgment, Judge Bea wrote that there exists an irreconcilable Ninth Circuit intra - circuit split r egarding w hether the jurisdictio n - stripping provisions of 8 U.S.C. § 1252(a)(2)(B) and (D) restric t all claimed c onstitutional cha llenges to Un ited States Citizenship and Immigration Service ’s discretionary determin ations of immigra tion status to a pe tition for rev iew of a final order o f rem oval (Nakka) or whether such challeng es may be hear d in d istri ct court (Poursina). In Judge Bea’s view, an en banc panel of this Court should be constituted to resolve this irre concilable conflic t. Judge Bea also wrote that this court’s practice of avoiding ju risdiction based on whether a claim is “colorable” ought to be reevalu ated. COUNSEL Nicholas Ratkowski (argued), Ratkowski Law PLLC, Saint Paul, Minnesota; Nicole R. Derden, Law Offices of Nicole R. Derden, Meridian, Indiana; for Plaintiff- Appellan t. Lauren E. Fascett (argued), Sarah L. Vuong, and Matthew Seamon, Senior Litigation Counsel; Victoria Turcios and Kevin Hirst, Trial Attorneys; Brian M. Boynton, Principal Deputy Assistant Attorney General; Civil Division, United States De partment of Justice, Washington, D.C.; for Defend ants - Appel lees.

C HAIREZ V. M AYORKAS 5 OPINION PER CURI AM: Plaintiff Sos imo Vera Chai rez, a nati ve and cit izen o f Mexico, applied to the United States Citizenship and Immigr ation Service s (“ US C IS ”) for a nonimmigrant U visa. S uch vi sas are n ot av ailabl e to noncitizens who, for one reason or another, ar e inadmissible to the U nited States under the Immigration and Nationality Act (“ INA ”). 8 U.S.C. § 1182(a). Plaintiff concedes that he is inadmissible, but he sought to have his conditions of inadmis sibility waived by USCIS. Were he to obtain an inadmissib ility waiver, Plaintiff argues, he would become eligibl e for a U visa. The INA provides that the Secretary of Homeland Securit y may, i n the S ecretary’s d iscret ion, grant a waiver of inadmissibility to a U- vis a applicant when the S ecretar y considers a waive r to be in the public or national intere st. 8 U.S.C. § 1182(d)(14). USC IS denied Plaintiff’s requ est fo r a waiv er and, as a conseq uence, also denied his re quest for a U visa. Plaintiff sued in district court unde r the Administra tive Procedu re Act (“ APA ”), alleging that USCIS’s denial of his request fo r a waiv er of i nadmissibility was unlawful. The district co urt dismissed the action for l ack of s ubject matter jurisdiction. We have appellate jur isdiction to review tha t final order pursuant to 28 U.S.C. § 1291, and we review de novo whether the district court had jurisdiction. Gila River Indian Cmty. v. U.S. Dep’t of Veterans Affs., 899 F.3d 1076, 1078 (9th Cir. 2018). Becau se the dist rict cour t corre ctly held that it la cked jurisdic tion, we affirm.

6 C HAIREZ V. M AYORKAS FACTUAL AND PR OCEDURAL H ISTORY In 2016, Plaintiff applied to USCIS for a U visa by filing a F orm I - 918, “Petition for U N onimmigrant S tatus.” The U visa is so n amed be cause it applies to a class o f nonimmigrants defined in subsection U of the relevant provision of the I NA, 8 U.S.C. § 1101(a)(15)(U). According to USCIS, the U visa “is set a side for vic tims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or pros ecution of criminal a ctivity.” Victims of Crimina l Activity: U Nonimmigra nt Status, U.S. Citizenship & Immigr. Servs., https://www.u scis.gov/hu manitarian/vic tims -of- crimi nal - activity -u- nonimmigrant- status. The INA specifies the categori es of cri mes the victims of whic h may be elig ible for a U visa. 8 U.S.C. § 1101(a)(15)(U)(i ii). Like all visa s, the U vis a typica lly is not available to “aliens who are inadmissible” to the United States due to a statutory condition. See 8 U.S.C. § 1182(a). But the INA provides some avenues for inadmissible nonimmigrants to obtain a visa. One such avenue is enumerated specifically for U visa applicants. 8 U.S.C. § 1182(d)(14). The I NA provides that the Secretar y of Homeland Security “shall determin e whether a gr ound of inadmissibili ty exists” with respect t o a nonimmigrant seeki ng a U visa and that the Secreta ry, “in [th e Secre tary’s ] disc retion, may waive” the inadmissibility of suc h a nonimmigrant “if the Secreta ry. . . considers it to be in the public or national interest to do so.” 1 Id. 1 This portion o f the statute c ontains a scr ivener’ s error. It states th at the “Secretary of Homeland Security, in the A ttorne y General’s discr etion,

C HAIREZ V. M AYORKAS 7 In addition to submittin g hi s application for a U visa, Plaintiff also submitted a F orm I - 192, “Application for Advance Permission to Enter as Nonimmigrant,” in which he claime d “U nonimmigrant status” and explicitly reque sted a waiver of inadmissibility. On his F orm I -192, Plaintiff represented as fol lows: I believ e that I am inadmissible beca use I entere d the United Sta tes without per mission and lived unlawfully in the United States for more than a year, and then reentered the United State s without permissio n. I also ma y be inadmissible because I have been removed from the United States be fore. I may also be inadmissible for having possessed a may waiv e” conditions of inadmissibility f or U - v isa applicants. 8 U.S.C. § 1182(d)(1 4) (emphas is added). T his provis ion was mean t to say that the Sec retary of Homel and Sec urity is t he one who has s uch discret ion. The error a rose after the creation of the Department of Homeland Securit y, when Con gress t ransferred a uthority over a lar ge amount of immigra tion administr ation from the Attorney Gen eral and the Departme nt of Just ice to the Secretary of Home land Secur ity and the newly created USCIS. M ore specifically, Congress directed all references to “Attorney General” in subsecti on (d)(14) to be replaced by “Secretary of Homeland Security. ” See Meridor v. U.S A tt’y Gen., 891 F.3d 1302, 1306 n.6 (11t h Cir. 2018) (de tailing the relev ant statutory history). The scrive ner appar ently did not change thi s refe rence to the Attorney General because of punct uation — a n apostr ophe - s following “Attorney General. ” W e agree with the Eleventh Circuit tha t the scrivener err ed and that Congres s intende d to change thi s refer ence, too. Id.; see also U.S. Nat ’l Bank of Or. v. In dep. Ins. Agents o f Am., Inc., 508 U.S. 439, 462 (1993) (“Court s, we have s aid, shoul d ‘ disregard t he punctuati on, or rep unctuate, i f need be, t o render the true meaning of t he statute. ’ ” (quoting Hammock v. Loa n & Tr. Co., 105 U.S. 77, 84 – 85 (1882))).

8 C HAIREZ V. M AYORKAS controlled substance. Please waive any grounds that may apply to me. In 2020, USCIS denied Plaintiff ’s F orm I -918 application for a U visa on the ground that he w as inadmissible, even though the agency had not i ssued any decision on Plaintiff’s Form I - 192 request fo r a waiver of inadmissibility. Plain tiff timely appealed the denial of his U- visa ap plication to USCI S’s Administra tive Appea ls Office. In 2021, while his appeal of that decision was pending, U SC IS issued a formal denial of his r equest for a waiver of inadmissibility. T h e Administrative Appeals Office l ater dismissed Plaintiff ’s appeal. In 2022, Plaintif f time ly brought the instant action under the APA, challenging the ag ency’s denials of his applications for a U visa and for a waiver of inadmissibility. After Plaintiff filed the action, USCIS reopened both of his applica tions. USCIS determined that its initial denia l of Plaintiff ’s I - 918 application for a U visa had been “procedurally improper” because it rested on the denial of his request for a waiver, “which had not yet b een adjudicated at the time [his] Form I - 918 was denied.” In 2023, USCIS issued new decisions denying P laintiff ’ s application both for a U visa and for a w aiver of inadmissibility. 2 Following the new denials, Plaintiff amended his complaint to r eassert his claim und er the APA that the denials of his applications were unlawful. Plaintiff al so 2 In its initial de nial s of Plaintiff ’s applications, USCIS asserted at least seven inde pendent gro unds on w hich it det ermined that Plaintiff was inadmissib le. After the agency re - ope ned and re - adjudicated th e applica tions, howe ver, it asser ted only t wo grounds for Plaintiff ’ s inadmis sibili ty: prese nce without admi ssion or parol e and unla wful presence for one ye ar afte r enteri ng without a dmiss ion.

C HAIREZ V. M AYORKAS 9 added a Fifth Am endmen t claim alleg ing that USCIS den ied him his due process right to a ne utral decisionmaker because it was biased against him. Defendants moved to dismiss t he action for lack of subjec t matter jurisdic tion and for failure to state a claim for relie f. The distric t court grante d Defendants’ motion to d ismiss for lac k of subject ma tter jurisdic tion. The dis trict court concluded that the INA strips district courts of jur isdiction to revi ew USC IS’s deni al of a § 1182(d) (14) waiver because the IN A specifi es th at the decision to grant such a waiver is in the discretion of the agenc y. This timely appeal followed. DISCUSSI ON The APA w aives the Unite d States’ sove reign immunity with respe ct to suits brought by persons injured by cer tain agency actions, and it cr eates a right of ju dicial rev iew. 5 U.S.C. § 702. The statute instructs reviewing courts to “compel agency action unlawfully withheld or unreasonably delayed” and to “set asi de” fin al agen cy acti ons th at are unlawful in particul ar wa y s. 5 U.S.C. § 706. But the APA does not apply to al l gri evances agai nst agency actio n. As relevant here, it does not apply when other “statutes preclude judicial review” of the agency action in question, or when the “agency action is c ommitted to agency discretion by law.” 5 U.S.C. § 701(a). In the INA, “Congress has sharply circumscribed judicial r eview” over the actio ns of federal immigration authoritie s regarding discreti onary r elief. P atel v. G arland, 596 U.S. 328, 332 (2022). The INA provides that “no court shall have jurisdiction to review” agency decisions t o grant or deny certain kinds of discr etionary relief. 8 U.S.C. § 1252(a)(2)(B). The two subsections of this jurisdiction - stripping provision deal with differe nt sets of discretionary

10 C HAIREZ V. M AYORKAS relief. In § 1252 (a)(2)(B)(i), the INA enumer ates sev eral statutory provisions that provide for discretionary relief, none of which is at issu e here. In § 125 2(a) (2)(B)(ii), Congress furthe r strips feder al courts of jurisdiction to review “any other decision or action of the .. . Secret ary o f Homeland Security the authority for which is specified under this subchapter to be in the discretion of the . . . Secretary.” Thus, § 1252(a)(2)(B)(ii) “supersedes the default rule that agency actions are reviewable pursuant t o federal question jurisdiction and the [APA].” Veg a v. U.S. Citizenship & I mmigr. Servs., 65 F.4th 469, 471 (9th Cir. 2023). In other words, t he APA’s express limitation that it does not apply when “statutes prec lude judicial review,” 5 U.S.C. § 701(a)(1), appli es whenev er the agency action at issue fa lls within the INA’s jur isdictional bar in § 1252(a)(2)(B)(ii). Importantly, the pertinent provision of the APA in this case is § 701(a)(1)— not § 701(a)(2). Confusing as it might be, the question whether “agency action is commit ted to agency discretion by law” —and thus is carved out of the APA by 5 U.S.C. § 701(a)(2) — diff ers substantially from the questi on whet her a p artic ular ag ency act ion i s “sp ecified t o be in the discretion” of the agency for purposes of § 1252(a)(2)(B)(ii). Co mpare Weyerhaeus er Co. v. U.S. Fish & Wildlif e Serv., 586 U.S. 9, 23 (2018) (“[W]e have read th e except ion i n § 70 1 (a)(2) quite n arrowl y.”), with Zia v. Garland, 112 F.4th 1194, 1200 (9th Cir. 2024) (“We read [§ 1252(a)(2)(B)(ii)] expansively to cover all determinations made in support of a grant of discretionary relief. ”). Despite th e textual similaritie s between § 1252(a)(2)(B)(ii) and § 701(a)(2), there is good reason to interpret them differently. The Supreme C ourt has

C HAIREZ V. M AYORKAS 11 recogniz ed that the AP A “creates a basic pr esu mptio n of judicial r eview for one suffering legal wrong beca use of agency acti on.” Weyerh aeuser, 586 U.S. at 22 (cleaned up). Further, the APA expressly instructs courts to apply the “abuse of discre tion” standard to certai n agency a ctio n s— a command tha t is hard to squa re with a r ule that all action s “committed to agency discretion by law” are unreviewable. Id. at 23. On the other hand, “the text and cont ext of [§ 1252(a)(2)(B) (ii)] — which is, after all, a jur isdiction - stripping sta tute — clearl y indi cate” Cong ress ’s in tent t o preclu de most judicial review “in the discretionary - relief context.” Patel, 596 U.S. at 347. So we put a thu mb on the scale in favor of ju dicial r eview when we apply the A PA’s discretionary exception in § 701(a)(2), b ut that interpret ation does not apply to Co ngress’s explicit and expansive jurisdiction - stripping wording i n § 1252(a)(2)(B)(ii). And when § 1252(a)(2)(B)(ii) applies, the operative APA exception is § 701(a)(1), because another statute, nam ely the INA, “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). The INA’s jurisdictional bar, however, is not unqual ified. S ometi mes referred t o as a “savi ngs clause” or the “limited review provision,” § 1252(a) (2)(D) does allow for “review of constitutional claims or questio ns of law raised upon a petition for re view filed with an appropriate court of ap peals i n accor dance wit h this sectio n.” S ee Zia, 112 F.4th at 1199. Such petitions for review are available to review only a final order of removal, and they are the “sole and ex clusiv e means for judi cial revi ew” o f removal orders. 8 U.S.C. § 1252(a)(5).

12 C HAIREZ V. M AYORKAS A. The Agency’s Denial of a Waiver of Inadmissibility Falls W ithin § 1252(a)(2) (B)(ii)’s J urisdict ional B ar. The question to which we now turn is whether the a gency action that Plaintiff seek s to challeng e — USCIS’s denial of his request for a waiver of ina dmissibili ty under § 1182(d)(14)— falls within § 1252(a)(2)(B)(ii) ’s jurisdictiona l bar. We hold that it does. The plain text of § 1182 (d)(14) and § 1252(a)(2)(B)(i i) all but re solves the matte r. Recall that § 12 52(a)(2)(B)(ii) precludes judicial review of agency a ction “the authority for which is specified under this subchapter to be in the discretion of the .. . Secretary.” Sect ion s 1182(d)(14) and 1252(a)(2)(B)(ii) bo th fall within s ubchapter II of 8 U.S.C. Chapter 12. The primary question we mus t answer, then, is whether the authority to grant a waiver o f inadmissibility under § 1182 (d)(14) is “ specified to be in t he discretion of the Secret ary. ” Sectio n 1182(d)(14) st ates that “[t ]he Sec retary of Homeland Security, in [the Secret ary’s ] discret ion, may waive [conditions of inadmissibility] in the c ase of a nonimmigrant [seeking a U visa], if the Se cretary of Homelan d Securi ty considers it to be in the public or national interest to do so.” (E mphas e s added.) S everal textual factors persuade us that the dec ision whether to grant a § 1182(d)(14) waiver is discretionary within the meaning of § 1252(a)(2)(B)(ii). Most obviously, the “plain ter ms of the statute invoke the agency’s discretion.” V ega, 65 F.4th at 471. And the statute speaks in permissive terms, st ating that the Secr etary “may ” waive a condition of inadmissibility, not that t he Secret ary “shall” or “must.” This wording “brings along the usual presumption of dis cretion.” Id. (quoting Poursina v. U.S. Citizenship & Immigr. Servs., 936

C HAIREZ V. M AYORKAS 13 F.3d 868, 871 (9th Cir. 2019)). The statute’s instruc tion that the waiv er may iss ue if t he Secr etary “co nsid ers” it t o be in the national or public i nterest — as opposed to whether it actuall y is in the national or public interest — “reinforces it s discretionary nature.” See Poursina, 936 F.3d a t 871 (“Congress’s use of ‘deems’ connotes that the Attorney General ’s determ inatio n in volves some meas ure of judgment.”). Indeed, we r eached the sam e conclusi on when w e considered a substantially similar provision of the INA in Vega. There, the pla intiff had f iled an APA suit in d istrict court challenging USCIS’s decision to deny him a waiver of inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii). 3 Vega, 65 F.4th at 471. The waiver provision at is sue in Vega stat es that an othe rwise inadmissible noncitizen “may be ad mitt ed into the Unite d States. . . in the discretion of the Attorney General.” § 1182(d) (3)(A)(i i); see also Vega, 65 F.4th at 471. We held that the decision whe ther to issue that kind of waiver i s unreviewable under § 1252 (a)(2)(B)(i i) because i t is specif ied to be in the sole discretion of the Attorney General. Vega, 65 F.4th at 471. Plaintiff argues that Vega is distinguishable. In his view, the provision at issue in Vega contained no qualifying limitation on the At torney G eneral’s ex erci se of dis cretion, while t he Secreta ry’s discret ion under § 1182(d)(14) is limited to some d egree. Specifica lly, § 1182(d)(14) authori zes the S ecretary ’s discretion to grant a wai ver “if the 3 Like Plaintiff here, the plain tiff in Vega was seeking a U vis a and had also appl ied for a § 1182 (d)(14) w aiver. But t he plai ntiff ab andoned his argument that § 1182(d)(14) p rovided a basis for juris diction, so we l eft that ques tion for a nother day, which has here and now arrived. See Vega, 65 F.4th at 471 n.1.

14 C HAIREZ V. M AYORKAS Secreta ry of Hom eland S ecurity considers it to be in the public or national interest to do so.” Plaintiff argues that, becau se “the public or national in terest” is a judicially manageabl e st andard o f revi ew, we hav e jur isd iction to review th e Secret ary’s determ inati on in t his regard. We reject Plaintiff ’s a rgument, but some explanation i s needed. The doctrine invoked by Plaintiff tr aces back to o ur decision in Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir. 2003). The immigration statute at issue in that ca se did not state th at the relevant decision was discretionary, and the statute used the word “shall,” not “may.” Id. at 688. We held that § 1252(a)(2)(B)(ii) did not strip us of jurisdiction to hear cha llenges to the agency’s decision, because the statute did not confer discretion. Id. at 688–92. But much of our rea soning focused on whether the statute provided for “discret ion guided by legal standards.” Id. at 690 (emp hasis ad ded). We expanded our rule the next year in ANA International v. Way, 393 F.3d 886 (9th Cir. 2004). Th e plaint iff in t hat case chal lenged t he Atto rney General ’s revocation of a visa pursuant to 8 U.S.C. § 1155, which provided that the Attorney General “ may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition” for an immigrant visa. 8 U.S.C. § 1155; see ANA Int ’l, 393 F.3d at 893. Applyi ng Spencer, we held t hat the sta tutory phrase “good and sufficient cause” —cons idered in isolation —provided an object ive legal standard and that, accordingly, we had jurisdiction to review th e plai ntiff ’s ch alleng es to th e ag ency’s decisio n. ANA Int ’l, 393 F.3d at 89 3 –94. We applied that anal ysis m ore rec ently in Poursina v. US CIS, 936 F.3d 868 (9th Ci r. 2019). The statut e at issue

C HAIREZ V. M AYORKAS 15 there provide d t hat “t he At torney G eneral m ay, wh en the Attorney General dee ms it to be in the na tional intere st, waive” certain requirements. 8 U.S.C. § 1153 (b)(2)(B)(i). We held th at the s tatute’s use of t he word “may ” conveyed discretion to the Attorney Gener al. Poursina, 936 F.3d at 870–73. We then addres sed the p lai ntiff’s argument that “ ANA International compel[led ] a cont rary result.” Id. at 873. We analyzed the argument in two parts. First, we held that “nationa l interest” — even considered in isolation — was not a judicially manageable standard because it “invokes broader economic and national - security considerations, and such dete rminations ar e firmly committed to the d iscretion of the Ex ecuti ve Bran ch.” Id. at 874. We contrasted the “national interest” wording with the “good cause” wor ding from ANA International. Id. We held that “go od cau se” is a judici ally m anageab le st andard b ecaus e, “[i] n a variety o f contexts, federal courts must make findings of ‘good cause.’ ” Id. (citi ng cases in other contexts). Second, we questioned the continuing vitality of the methodology applied in ANA Intern ational. Id. at 875. “Indeed, even if the [statute at issue in Poursina ] res embled the one discussed in AN A Intern ational ”— that is, if a part of the statute, considered alone, provided a j udicially manageabl e st andard — “ we would hesitate to extend such decision beyond its narrow holding.” Id. We pointed out that ANA Internati onal ’s rule w as an “ou tlier. ” Id. We now hold that ANA International is no longer good law, both with respect to its nar row holding and with respect to its methodology. In Bouarfa v. Mayorkas, 604 U.S. 6 (2024), the Supreme Court addressed the same legal issue decided in ANA I nternational: wh ether fed eral cou rts have

16 C HAIREZ V. M AYORKAS jurisdiction over the agency’s visa - revocat ion decisio ns pursuant to 8 U.S.C. § 1155. The Court concluded that federal courts lack jurisdiction to review the agency’s decisions under § 1155, which includes the phrase “good and suffici ent cause. ” Id. at 19. The Court expressly noted that we had r eached t he op posit e jurisdiction al conclusion in ANA Inte rnational. Id. at 13 n.3. Bouarfa th us clearly overruled the legal holding in ANA International, specifi cally, that we have jurisdiction to review the age ncy’s decisions pursuant to § 1155. As to methodology, nowhere did the Court ask whether “good and sufficient cause” inde pendently provi ded a judicially manageable standard. Instead, the Court cited Webster v. Doe, 486 U.S. 592, 600 (1988), to emphasize that, because the statute permitted discretion whenever the Attorney General “deems” there to be good and sufficient cause, th e statut e was dis cretion ary. Id. at 14. In a parenthetical, the Court explained that Webster had held “that a s tatute permitting the a gency to terminate an employ ee whenev er it ‘“ d eem[s] such te rminat ion nec essary or advis able in t he int erests of t he Unit ed States”’ w as discretionary.” Id. (alteration by Bo uarfa). Thus, Bouarfa also is clearly irrec oncilable with the methodology tha t we employed in ANA I nternational and its progeny. ANA International stripped out the qualifying text from its context and asked whether that text, considered alone, coul d provide a judici ally m anageable s tandard. 3 93 F.3d at 893 –94. That methodology no longer applies. I nstead, when Congress signals that it is merely pr oviding guidance to the agency on its exercise of discretion, the discretionary judgment call as a whole falls within the j urisdiction - stripping provision of 8 U.S.C. § 1252(a)(2)(B)(ii).

C HAIREZ V. M AYORKAS 17 It is important to distinguish here between guidance to the agency on i ts exercis e of d iscreti on, on the one hand, and statutory le gal prerequis ites, on the other hand. Many statutes grant discretion to an agency, but onl y if certain statutory requirem ents are met. For exampl e, canc ellat ion of removal allows the agency to cancel removal, but only if certain prereq uisit es are met. 8 U.S.C. § 1229b(a); see Lemus - Escobar v. Bondi, 158 F.4th 944, 952–54 (9th Cir. 2025) (describing cancellation of removal, the prerequisites, and our jurisdiction). The Supreme Court in Bouarfa referred to those prerequisites as “threshold requirements.” 604 U.S. at 15. Here, as in Bouarfa, the relevant statutory text contains only guidance to the agency on its exercise of discre tion; it contain s no threshold requirement s. The st atute at i ssue her e allows the Secret ary, in t he Secreta ry’s d iscreti on, t o waive certain r equirem ents “i f the S ecretar y of Hom elan d Securi ty considers it to be in the public or national interest to do so.” 8 U.S.C. § 1182(d)(14) (emphasis added). Just as the statute at issue in Bouarfa used the word “deems” to signal guidance on the exerci se of the agency ’s dis cretio n — as opposed to a threshold legal requirement —the statutory text jus t quoted uses the word “consider s” equally to signal g uidance on the exercis e of t he agen cy’s discretion. See al so Ruiz v. B ondi, 163 F. 4th 586, 592 – 95 (9th Cir. 2025) (concluding that a statutory provision was discretionary within the meaning of 8 U.S.C. § 1252(a)(2)(B)(ii) where that provision, 8 U.S.C. § 1158(a)(2)(D), stat es th at the At torney G eneral “may” grant re lief if the p etitioner “d emonstrates to the satis faction of the Attorn ey Gene ral” that “extr aordinary cir cum stances” exist ed). In sum, we re cognize as overruled both ANA International ’s specific holding and its methodology. See

18 C HAIREZ V. M AYORKAS Miller v. Ga mmie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Going forwa rd, in a case brought in distric t court under the APA, if a cl ause prov ides only guidance to the agency on its exercise of discretion, then that guidance is part of t he exe rcise o f di scretio n and falls within 8 U.S.C. § 1252(a)(2)(B)(ii). We s hall not consider, as we erroneously did in ANA International, whether the guidance— stripped of its context — could provide a judicially manageable legal standard. That questi on is no longer rel evant in interpreting a statu te of this kind. Because the statutor y text in § 1182(d)(14) confers discretion to the Secreta ry, § 1252(a)(2)(B)(ii) applies, thus p recluding judicial r eview of USCIS’s decision to deny Plaintiff ’s waiver of inadmissibility under § 1182(d) (14). 5 U.S.C. § 701(a)(1). 4 B. The INA’s Savings Clause Does Not Apply Here. The INA ’s savin gs clau se, § 1252(a)(2)(D), expres sly preser ves judicial review of c onstitutional an d legal claims, but only when such claims are raised in a p etition for review from a final order of removal “filed with an appropriate cour t of appeals in accordance with this section.” 8 U.S.C. § 1 252(a)(2)(D). Under § 1252(a)(5), such petitions for review may be tak en only as to “an or der of rem oval entered or issued” by the immigration courts. Nothing in the text of § 1252— or any other provision of the I NA — can be read to 4 Plaintiff a lso argue s that the district cou rt erred by adjudic ating Defendant s’ motion to di smis s without com plying with the APA ’s requir ement to review th e entire admin istrative rec ord. See 5 U.S.C. § 706. But because we conclude that the INA “preclude[s] judicial review,” 5 U.S.C. § 701(a)(1), the APA express ly does n ot apply. Thus, § 706 does not gove rn. The distri ct court wa s under no obl igation to require De fendants to fil e the a dministra tive recor d before i t deci ded the threshol d quest ion of its ow n juris diction.

C HAIREZ V. M AYORKAS 19 provide district courts with jurisdiction, in the context of an APA challenge, to review infirmities underlying otherwise unreviewable, discretionary decisions. 5 C. We Rej ect, at t his Pr ocedural Junct ure, Plaintiff ’s Argument that the Statutory Sch eme is Unconstitutional. Plaintiff asks us to allow his suit in distr ict court to proceed becaus e the interpretation of t he INA ’s jurisdictional provisions that we have adopted here works to deprive him of any avenue to obtain judicial review of USCIS’s allegedl y improper action against him. If that is the result, Plaintiff says, the INA is unconstitutional as applied to him because the statute “inherent ly and n ecessa rily permit s USCIS to violate the Constitu tion with comp lete and total impunity when adjudicating § 1182(d)(14) waivers.” We are not pers uaded t hat Plaintiff is co nstitutionally entitled to jud icial revie w in district co urt as things stand today. As the Supreme Court st ated in Patel, Congress has made a “choice to provide reduced procedural protection for discretionary relief, the granting of which is not a matter of right under any circumstanc es, but rather is in all cases a matter of grace.” 596 U. S. at 345 (interna l quot ation marks and cita tion omitted). For th at r eason, it is not neces saril y the case that the INA’s narrowing of Pla intiff ’s path to judicial r eview — or even potentially its closure of a ny path — renders the statute unconstitutional as applied to him. 5 Plaintiff suggests i n passing that we can “convert ” this ap peal int o a petition f or review. Plaintiff supplies n o legal autho rity for that maneuver, and we are a ware of none. Secti on 1252 es tabl ishes t hat a petition f or review is a vehicle reserved for a challenge to a final or der of removal, and n o such order is before us.

20 C HAIREZ V. M AYORKAS But to resolve the case before us, w e need not r esolve Plaintiff ’s a rgument. In rejecting his constitutional challenge to the INA, we emphasize that we do not decide today whether, or to what extent, Plaintiff can rais e his claims in removal proceedings. Nor do we d ecide whether, if the immigration courts cannot revi ew hi s clai ms, such a result would violate the Constitution. What we do decide is that, to the extent Plaintif f h as a viable ch allen ge to th e discretio nary decisions of the immigration authoritie s, the only p lace he can ad vance that cl aim is in rem oval proceedings and a subsequent petition for review in th e court of appeals. I t would be premature, and speculative, to say conclusively that the procedur e Congress has provided is so inadequ ate that i t forces u s to set asi de the INA’s jurisdictional bar and allow Plaintif f ’s APA suit to proceed. The forum for that question is on a petition for review f rom a final order of removal, as § 1252(a)(2)(D) requires. 6 To put it another way, th e fact that Plaintif f migh t not be able to obtain judicial review in remova l proceedings does not affect the out come h ere. If Plaintiff is correct tha t the 6 Plaintiff may yet be able to obtain som e form of re view — or at least relief — in removal proce eding s, which would alleviate his co nstitution al concern here. For example, several of our sister c ircuit s have held that immigra tion judges h ave the power to grant waive rs of inadmissibility to U- visa applicants u nder § 1182(d)(3)(A)(ii). See Jim e nez - Rodriguez v. Garland, 996 F.3d 19 0, 200 (4t h Cir. 2021); Meridor, 891 F.3d at 1307; L.D.G. v. Holder, 744 F.3d 1022, 103 0 (7th Ci r. 2014). And there may be other forms of relief that Plaintiff can seek in imm igration court that would all ow him t o present any infi rmity underl ying his immigra tion status. Withou t resolving th o se quest ions here, we observe that it is t oo soon to say, one wa y or the other, whe ther Pla intiff tr uly has no statutory path to ju dicial review under the re gime that Congr ess has pr escrib ed and whether the Const itution re quires judicial review in a futu re proceeding.

C HAIREZ V. M AYORKAS 21 Constitution e ntitles him to judicial re view, that will be as true in later removal proceedings as it is here in his APA suit. In this respect, we agr ee with and are bound by our recent decision in Garci a v. U.S. Citizenship & Immigr a tion Services, 146 F.4th 743 (9th Cir. 2025), petitio n for ce rt. filed, No. 25 - 937 (U.S. J an. 28, 2026). 7 There, w e rej ected a nea rly identical argument made by a plaintiff who sought a different sort of disc retionary relief in pursuit of a U visa. As we stat ed there, “ we see no reason why [the plaintiff ] has a constitutio nal entitlem ent to raise her claim to judicia l review in district court as opposed to through [removal proceedings] and [the] pet ition for review p roces s.” Id. at 756. If removal proceedings turn out to be an ina dequate forum fo r his constitutio nal and lega l claims, Plaintif f can raise his constitutional challenge t o the INA’s jurisdic tional provisions again in a pe tition for review, where the INA expressly supplies us with jurisdiction to consider it. D. Plaintiff Does Not Raise a Colorable Consti tutional Challenge to the Agency’s Procedu res. Plaintiff raises one argument that fa lls outside th e analysis discussed above. Specifica lly, he argues that the agency vi olated p rocedu ral due proc ess becau se, h e assert s, the decis ion m aker was b iased against him. Notwithstanding the discussion above, which concerns challen ges to the discr etionary dete rmination itself, we reta in jurisdiction o ver colorable constitutional c laims that challeng e the proced ures used by the agency. On t his point, our decision in Poursina controls. In Poursina, as here, the 7 Garcia was decided after oral argument in this case, but it was argued and submit ted on a n earlier date and thus has priorit y over the disposi tion of any comm on legal questi ons. See General Order 4.1(a).

22 C HAIREZ V. M AYORKAS agency denied th e w aiver of a requirement for a visa; the plaintiff th en filed suit in district cou rt; and we h eld that the statute granted discretion to the agency, so the agency’s decisi on was gen erally unrev iewabl e. 936 F.3d at 870 –75. But we al so hel d in Poursina that we ret ained ju risdiction over the plaintiff’s constitutional argument that he had bee n deprived of du e proces s becau se he al legedly fail ed to receiv e a notice fro m the agency. Id. at 875 –76. We held that “[t] his constitutional c laim is not subjec t to § 1252(a)(2)(B)(ii)’s jur isdictional bar,” an d we address ed the merits o f the claim. Id. at 876. Plaintiff’ s constitutional claim here is, like the one in Poursina, purely a proced ural du e process cl aim chal lengin g the agency’s process, not a c laim challenging the underlying merits of th e agency’s disc retionar y determination. See id. (holding that we have jurisdiction over a p rocedural constitutiona l claim); Zadvydas v. Da vis, 533 U.S. 678, 688 (2001) (rejecting the argument that § 1252(a)(2) (B) stripped jurisdiction over a procedural due process claim brought in district court and addressing the meri ts); see als o Bouarfa, 604 U.S. at 18 n.5 (noting that the plaintiff did not allege “that the agency violated c onstitutional or procedural requirements when it revoked her petition” and expressing “no view as to whether a lawsuit with such allegations would be revi ewable ”). A c cordingly, we have jurisdiction to review Plaintiff’s pr ocedural constitutiona l claim — if it i s colorable, Bogle v. Garland, 21 F.4th 637, 654 (9th Cir. 2021); Torres - Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001). Our recent decision in Garcia is not in tension with Poursina because the p lain tiff in Garcia challenged the denial of her U visa only on statutory — not constitutional — grounds. See Garcia, 146 F.4th at 746. Specifically, the

C HAIREZ V. M AYORKAS 23 plaintiff argued that the governing statutes did not permit USCIS to follow a policy that requires applicants for adjustment o f status to divulge hea lth - relate d information. Id. at 747. Th e p laintiff ass erted that the lack of an avenue for judic ial review violated the C onstitution, but she did not challeng e the procedures employed by the agency. Id. at 755–56. Perhaps because the issues do not overlap, Garcia did not cite or discuss Poursina. Nor is th ere a con flict b etween Poursina and our decision in Nakka v. USCIS, 111 F.4th 995 (9th Cir. 2024). As in Garcia, we held in Nak ka t hat, b ecaus e of th e chann eling aspects o f § 1252(a)(2), the plaintiffs could not obtain judicial r eview in district court of the agency’s de nial of an immigration be nefit; ordina ry challenges to the denial of discretionary relief must proceed through a petition for review. N akka, 111 F.4th at 1012 –15. The plaintiffs had alleged t hat certain substantive policies adopted by USCIS v iolated equal protection principles, that the policies were arbitrary and cap ric i ous in vi olation of the APA, and that the agency violated the APA’s rulemaking procedures in adopting the policies. Id. at 1001. But n o plaintiff challeng ed th e agency ’s procedu res in adjud icat ing a specifi c applicat ion. Likely for that reason, Nakka had no reason to cite or d iscu ss Poursina when discussing the channeling provisions. Nakka cit ed Poursina only i n a footnote, on an unrelated topic, in an unrelated section of the opinion. Id. at 1008 n.14. We nevert heless concl ude t hat we l ack j urisdi ction because Plaintif f’s claim here is entire ly speculative and not colorabl e. B ecause t here is no colorable constitutional claim, we lack jurisdiction. Bogle, 21 F.4th at 654; Torres - Aguilar, 246 F.3d at 1271.

24 C HAIREZ V. M AYORKAS AFFIRMED. BEA, Circuit Judge, concurring in part and concur ring in t h e judgment. There exists an irrec oncilable Ninth Circ uit intra - circu it split regarding whether the jurisdiction - stripping provisions of 8 U.S.C. § 1252(a)(2)(B) and (D) r estri ct all cl aimed constitutional challenges to United States Citizenship and Immigr ation Service ’s (“USC IS”) disc retio nary determin ations of immigra tion status to a pe tition for rev iew of a final order of remov al or whether such challenges may be heard in district court. Compare Poursina v. United States Citizenship & Immigr. Servs., 936 F.3d 868 (9 th Cir. 2019) w ith Nakka v. United States Citizenship & Immigr. Servs., 111 F.4th 995 (9t h Cir. 2024). An en banc panel of this Court should be constituted to resolve this irreconcilable conflict. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478 – 79 (9th Cir. 1987) (en banc) (“[T]he appropriate mechanism for resolving an irreconc ilable [intra - circuit] conflict is an en banc de cision. A panel faced with such a conflict must call for en banc review, which the court will normally grant unless the prior decisions can be distinguished.”). The majority neglects this conflict. Thus, I join in full as to Parts A – C of the majority’s opinion, but I only concur as to the re sult in Part D. In Part D of the opinion, the majority confronts Chaire z’s constitutiona l claim in which he argues that U SCIS violated the Fift h Amendm ent’s Due Proces s Clau se because t he

C HAIREZ V. M AYORKAS 25 agency was biased against him. 1 Instead of applying § 1252(a)(2)(B) and (D)’s jurisdictional bar and c hanneling provision to this constitutiona l claim, the ma jority asserts that it is bound by Pour sina ’s holding that procedural due process claim s as to ag en cy action s whi ch deny a requ ested visa status may be brought in fe deral district court. Maj. Op. at 21; see Poursina, 936 F.3d at 876 (“[T]his constitut ional claim is not sub ject to § 1252(a)(2)([B ])(ii)’s juris diction al bar ... [because] ‘decisions that violate the Constitutio n cannot be “discretionary,” so claims of constitutional violations are not barred by § 1252 (a)(2)(B).’” (quoting Wong v. United States, 373 F.3d 952, 963 (9th Cir. 20 04))). 2 In relying on Poursina, the majority disregards our mor e recent decision in Nakka, in which we held th at “[Section] 1252(a)(2)(B)(i) and (D) channel rev iew o f [a p lainti ff’s] legal and constit utional challenges to [USCIS’s denial of her claim for adjustment of visa status] into a petition for r eview from a final order of removal.” N akka, 111 F.4th at 999 1 Cha irez’s bias claim is based on h is assertions tha t similar ly situated inadmissib ility waiver a pplicants are co nsistently g ranted inadmissibility waivers, USCIS followed an a bnormal p rocedure i n denyi ng his applica tion, and U SCIS ma de negative comment s about hi s 2015 convicti on in its de nial of his applicat ion. See Maj. Op. at 6–9; see also Chair ez v. Mayor kas, 1:22 - cv - 002 91 - AKB, Ame nded Com plaint, D kt. 16 at 44 – 51 (D. Idaho O ct. 30, 2023). 2 Of course, t hat no one h as “dis cretion” (pow er) to violate t he Const itution i s a truism. Neit her could one ha ve a valid s tatutory mandate t o violat e the Cons tituti on. It is al so obvious that c onstit utional claims, whether they arise from the discretionary acts or mandatory acts of the Exec utive, a re not bar red from federal c ourt ju risdict ion by § 1252 since such c onstitution al claims are specif ically mentio ned in § 1252(a)(2) (D) as cla ims that may be heard in a pet ition for review, as noted bel ow. The noted trui sm is a thin reed upon whic h to s upport a claim to ju dicial jurisd iction.

26 C HAIREZ V. M AYORKAS (emphasi s add ed). L et’s examine t he tw o cases to s ee if there is th e conflict n oted. In Poursina, Mohammad Poursina asked USCIS to grant him a permanent employment - based visa under 8 U.S.C. § 1153(b)(2). Poursina, 936 F.3d at 869. Poursina could not establish that his services were sought by an employer in the U.S., as is generally required by § 1153(b)(2)(A), so he requested a nati onal i nteres t waiver of the em pl oyer need element from USCIS pursuant to § 1153(b)(2)(B)(i). Id. at 870. USCIS denied his request, and its Admi nistrative Appeals Office af firmed the d ecision. Id. Poursina brought suit in the District of Arizona; he challenged USCIS’s denial of his petition and asserted claims under the Administrative Procedure Act (“APA”) and a Fifth Amendment due process claim fo r claimed lack o f notice reg ardi ng the “r equest for evidence ” that USCIS had alle gedly failed to ma il to him. Id. at 870, 875. The district court held that § 1252(a)(2)(B)(ii) bar red i ts review of t he suit and therefore held that it la cked subje ct matter jurisdictio n. Id. at 870. Poursina appealed to us. Id. We first held t hat “be cause USCIS’s decision to deny a national - interest waiv er is specifie d to be in its discretion, § 1252(a)(2)(B)(i i) strip s the federal courts of jurisdiction to review USC IS’s refusal.” Id. at 875. But we also held that Poursina’s c onstitutional due process claim for said lack of notice was not subject to § 1252(a)(2)(B)(ii)’s jurisdictional bar because “‘decisions that violate the Constitution cannot be “discretionary,” so claims of c onstit utional violations are not barred by § 1252(a)(2)(B).’” Id. a t 876 (quoting Wong, 373 F.3d a t 963). Still, since the record proved tha t service of said notice was adequate, the Court found that Poursina’s lack of notice claim fa iled on the mer its. Id.

C HAIREZ V. M AYORKAS 27 In Na kka, the plaintiffs were Indian nationals, who had long resided in the U.S. on nonimmigrant work visas, and their children, who were der ivative beneficiaries of their parents’ visas. Nakka, 111 F.4th at 999. The plaintiffs sought to adjust their visa status to permanent resident through employment - based immigrant visas, and their operati ve compl aint ch alleng ed certai n gen erally a ppli cable policies that the defendants — USCI S and the U.S. Dep artment of State —used to determine whether dependent children ha d “aged out” of e ligibility to adjust their status a s derivative beneficiaries of their par ents by the passage of time. Id. The plai ntiffs clai med that the chall enged “aged out” policies violated the APA and the Equal Protection guarantee of the Due Process Clause of the F ifth Amendment because the Child St atus Protection Act’s age calculation discriminated against Indian na tionals and constituted an invidious, national origin - based violation of the Equal Protection Clause, incorporated into the Fifth A mendment. Id. at 1001; see also Nakka et al v. U.S. Citizenship and Immigration Services et al, 3:19 - cv -02099- YY, Second Amended Complaint, Dkt. 31 at 20 (D. Or. May 20, 2021). The Nakka magistrate judge found that the court had jurisdiction over the claims but recommended the suit be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6); the district court adopte d the recommendation. Nakka, 111 F.4th at 1002; see also Nakka v. U.S. Citizenship & Immigr. Servs., No. 3:19 - cv -2099- YY, 2022 WL 248299, at *1 – 2 (D. Or. Jan. 27, 2022), vacate d and remanded sub nom. Nakka, 111 F.4th 995. On appeal, we first concluded that as to those plaintiffs who had not ye t submitted applicat i ons for adjustment of sta tus to USCIS, their claims were unripe, and for that reason, we lacked jurisdiction t o

28 C HAIREZ V. M AYORKAS hear them. Nak ka, 111 F.4th at 1009 – 11. Next, we considered plaintiff P. Peddada, who had filed an a pplication for adjustment of status, which USC IS had denied. Id. at 1011. We found that her claim was ripe, but we concluded that “[a]lthough [P. Pedda da] can rely on that denial to establ ish rip eness... § 125 2(a)(2)(B)(i) and (D) ch annel review of her legal and constitutio nal challen ges to that denial into a petiti on f or review from a f inal order of removal.” Id. at 999. Thus, we also lacked jurisdiction over P. Peddada’s claim. Accordingly, we vacated t he district court ord er which d ismis sed the cas e for fai lure to stat e a claim and remanded with instructions to dismiss for la ck of jurisdiction. Id. The Nakka panel further discussed the implica tions of its ruling; it is worth quoting the analysis at length: [W]hen a p laint iff rel ies on th e denial o f he r application to satisfy ripene ss and the statutory scheme channels review of such denials into a limited review process, then she will still fin d [herself ] at least te mporarily barred from review by those chann e ling provisions… Specifically, § 1252(a) (2)(B)(i) precludes judici al rev iew except as provided for under § 1252(a)(2)(D), which preserves review of legal and constitutional c laims raised in a petition for review from a fina l order of removal. Plaintiffs apparently assume t hat, i f USC IS or DHS d enies an application for discretionary relief outside removal proceedings, the denial order, and claims challenging policies on which the denial was based, would not be r eviewable on

C HAIREZ V. M AYORKAS 29 a petition f or review from a fina l removal order under § 1252(a)(2)(D). But the Government maintains, and we a gree, that both the denial order and the policy challeng es woul d be r eviewabl e on a p etit ion for review from a final removal orde r under § 1252(a) (2)(D), even i f th e agency d enied relief when the petitione r had lawf ul status and was not in removal proce edings… We recognize that individuals like P. Pedda da — who have not violated any immigration laws — must violate the law to render thems elves remo vable and obtain judicial review. And, we normally do not require plaintiffs to bet the farm ... by taking the violative a ction 3 b efore testing the validity o f the law, and we do n ot consider this a meaning ful avenu e of relief. Howev er, Congress can require review in this manner by expressly limiting and c hanneling judicial review ... [A]lthough P. P eddada ca n rely on USCI S’s de nial of he r application for adjustment o f status to sh ow that her c laims are r ipe, she is still tempora rily barred from obtaining judicial review, and her claims are 3 An immigrant can beco me remova ble by, for ins tance, oversta ying his visa, see 8 U.S.C. § 1227(a)(1)(B), commit ting certai n criminal of fenses after ad mission, see id. § 1227(a)(2), or viol ating the co nditions of his visa, w hich can i n some c ircumstanc es be achi eved by f iling a declara tion anno uncing i ntent t o remain be yond the termin ation of his visa, see, e.g. id. §§ 1 227(a)(1)(C); § 1101(a)(15)(F)(i).

30 C HAIREZ V. M AYORKAS reviewable only if presented in a petition for review f rom a fin al ord er of rem oval. Id. at 1012 – 14 (internal quotation marks omitted, citations omitted, and footnote added). The holding in Nak ka thus conflicts w ith that in Poursina. In Poursina, we held that § 1252(a)(2) (B)(ii) and (D) do not restric t constitutional claims to a petition for review of a final order o f remov al, and that fed eral dist rict courts have subject matter jurisdiction over such constitutiona l claims because “ ‘decisions that violate the Constitution cannot be discretionary.’” Poursina, 936 F.3d at 876 (quoting Wong, 373 F.3d at 963). Five years later, in Nakka, we held that § 1252(a)(2)(B)(i) and (D) res trict review of al l chall enge s to an agency’s det ermi nation s, includin g constitutional challenges, to the petition - for - review pro cess. 4 T hus, in one cas e, a ch allen ge to the constitutionality of USCIS’s discretionar y decision to deny 4 While Poursi na ad dre sses § 1252(a)(2)(B)(i i) and Nakka add resses § 1252(a)(2) (B)(i), that is not a basis upo n which to dis tinguish t heir holdings. The majo rity d oes not s uggest tha t such a dist inction is meaningf ul and f or good r eason. B oth pr ovisions a re unde r the § 1252(a)(2) (B) headi ng of “D enials of dis cretionary relief,” and the text of the st atute give s no suggest ion that cons titut ional chall enges r egarding (i) are cha nneled t o a petiti on for review of a final order of re moval whil e those re garding (ii) ar e not. Indeed, § 1252(a)(2)(D) clarifi es that “[n]othi ng in subpara graph (B) [whic h includes (i) and (ii)] ... whic h limits or elimin ates judicia l review, sh all be con strued as preclu ding review of c onstitut ional cla ims or quest ions of law raised upon a pe tition for revi ew...” S ection 1 252(a)(2)(D) re fers to § 125 2(a)(2)(B) as a whole. It draws n o distinction betwee n (i) and (ii). Additionally, Wong, the case relied on by Poursi na, also does not differentiate between subsec tions (i) and (ii). Wong, 373 F.3d at 96 3 (“[D]eci sions that viol ate the Cons tituti on cannot be ‘d iscret ionary,’ s o claims of co nstit utional violati ons are n ot barred b y § 1252(a)(2)(B).”).

C HAIREZ V. M AYORKAS 31 visa adjustme nt relief le d to jurisdiction in fede ral court absent a p eti tion fo r review (Poursina) and in the other, it did not (Nakka). In the case at hand, w e are faced with t he quest ion whether the district court has jurisdiction over Chairez’s challen ge to the constitutionality of USCIS’s discre tionary decision to deny his applications for a U visa a nd a waiver of inadmissib ility. Wer e we to follow Poursina, as the majority has done, we would find there to be subject matter jurisdiction o ver the co nstitutional claim (we re that claim to be “colorab le”). We re we t o foll ow Nakka, we would find there to be no subject matter jurisdiction ov er the claim unless and until it is presented on a petition for review of a final o rder of rem oval, regardl ess wh ether the claim is “colorabl e.” The major ity attempts to distingu ish Nakka from Poursina on the basis that Poursina’s Fifth Amendment due process claim challenged the proc edures followed by USCIS and Nakka’s Fifth Amendment equal protection claim challenged “certain substantive policies adopted by USCIS.” Maj. Op. at 23. I see no principled reason why Fifth Amendmen t equal protection cla ims (Nakka) would be channeled into petitions for review by § 1252(a)(2)(B) and (D) while Fifth Amendment due process claims (Poursina) would not. Nor does the majority cite any authority for such a proposition. Sections 1252(a)(2)(B) and (D) make no such distinction between procedural and substantive due process claims. See § 1252(a)(2)(B) (“[N]o court shall have juris diction to review .. . any. .. decision or action of the Attorney Gene ral or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the

32 C HAIREZ V. M AYORKAS discretion of the Attorney Gene ral or the Secretary of Homeland Security.”) (emphasis added); § 1252(a)(2)(D) (“Nothing in subparagraph (B) ... which limits o r eliminates judicial review, shall be construed as precluding review of constitutional c laims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accord ance w ith th is sect ion.”) (em phas is added). Poursina m ade no such distinction between procedural and substantive due process claims. See Poursina, 936 F.3d at 876 (“Th is constitutional c laim is not subjec t to § 1252(a)(2)([B])(i i)’s j urisdict ional bar… [becaus e] ‘decisions that violate the Constitution cannot be “discretionary,” so claims of constitutional violations are not barred by § 1252(a)(2)(B).’ ” (quoting Wong, 373 F.3d a t 963)). And Nak ka made no such distinction between procedural and substantive due process claims. N akka, 111 F.4th at 999 (“[Sections] 1252(a)(2)(B)(i) and (D) channel review of [plaintiff’s] le gal and constitutional chal lenges t o [USCI S’s denial for her claim of adjustme nt of status] into a petition for review from a final order of removal.”) (emphasi s added). 5 Thus, I see no basis for such a distinction. Under the ma jority’s logic, a plaintif f who alleges that the USCIS official who reviewed his application for a waiver of inadmissibility, a precondition for the issuance of a certain 5 Furtherm ore, t o the e xtent t he maj ority arg ues tha t Zadvydas v. Davis, 533 U.S. 6 78 (2001), makes s uch a dist inction between § 12 52(a)(2)(B) and (D)’s e ffect on proc edura l and subst antive due proce ss chal lenges, Zadvydas i nvolve d a habeas petition a fter t he peti tioner ha d al ready been through re moval procee dings a nd ordered remo ved from th e U.S., and nowhere did the Court differentiate as to the existence of subject matter jurisdi ction bet ween clai ms of proced ural an d sub stantive vio lations of constitutio nal righ ts.

C HAIREZ V. M AYORKAS 33 visa, was racially biased against him, could sue USCI S in federal distri ct cou rt desp ite t he cle ar text of § 125 2(a)(2)(B) and (D). Yet a pla intiff who challenges racial bias in the allocation of visas, c.f. Nakka, would have to wait to bring such a claim in a petition for review of a final order of removal. Raci al bias in an adju dicator and r acial bias in agency allocation of visas both seem to me to be v iolative of the Fifth Amendment Due Process Clause, and the refore within the c lear text of § 1252(a)(2)(B) and (D), and yet the majority demands, without a basis that I c an perceive, that such clai ms be t reated d ifferen tly. Poursina ’s holding tha t constitutional cla ims are not subject to § 1252(a)(2)(B)’s jurisdictional bar is not only contrary to Nakka, but a lso contrary to our fellow circuits which have considered the question. See, e.g., Quezada Palacios v. Bondi, No. 24 - 2140, 2025 WL 19834 82, at *4 (2d Cir. July 17, 2025) (“Assuming arguendo that Qu ezada raises viable constitutional and statutory a rguments regarding USCIS’s revocation of his [Special Immigrant Juvenile Status] or denial of his application for pe rmanent re sidence, our precedent is cle ar that constitutiona l claims or questions of law arising out of U SCIS’s denial of discretionary relief must be raised upon a petition for review filed with an appropriate court of a ppeals.” (citing Shabaj v. Holder, 718 F.3d 48, 51 (2d Cir. 2013)) (internal quotation marks omitte d)) 6; Roland v. United States Citize nship & 6 The appellant had all eged that “8 C.F.R. § 204.11’s r equir ement that [Special I mmigran t Juvenile Status] applican ts not be m arried violate s his constitu tional rig ht to freely exer cise his religio n under the Fir st Amendm ent to th e United States Con stitutio n” and that “the jurisdicti on - strippi ng provis ions of 8 U.S. C. § 1252 run a foul of A rticle III’s alloca tion of auth ority to the Judici ary as wel l as proce dural due pr ocess

34 C HAIREZ V. M AYORKAS Immigr. Servs., 850 F.3d 625, 629 (4th Cir. 2017) (“Section 1252(a)(2)(D) does permit judicial review of constitutional claims or legal questions, but only when raised upon a petition for review filed with an appropriate court of appeals during removal proceedings.” (in tern al citat io ns and quotation marks omitted)) 7; Green v. Napolitano, 627 F.3d 1341, 1346 (10th Cir. 2010) (“§ 1252(a)(2)(D) allows judicial review over constitutional and legal challenges only when raised on appeal of a final order of removal.” (internal citation and quotation marks omitted)) 8. This cir cuit split would provide yet another re ason for an en banc call. See Fed. R. App. P. 40(a)(2)(C). It is, of course, unsurprising that no other circuit has followed Poursina ’s logic, as the holding contradicts the plain language of the statutes it purports to interpre t. Even our own Court has declined to do so. Nakka, 111 F.4th at 999; see also A kinmulero v. U.S. Dep’t of Home land Sec., No. 23 - 35364, 2025 WL 636328, at *1 (9th Cir. Feb. 27, 2025) (following Nakka and neglecting Poursina i n holding that “Plaintif f’s legal and constitutional challenges to his individual application for adjustment of status can only be afforde d by the Fi fth Amendme nt.” Quezad a Palacios, 2025 WL 1983482, at *4 (internal quo tation mark s omitted). 7 Th e appellants had alleged that USC IS’s denial of appellant R oland’s Form I - 130 Petiti on to obtain l awful pe rmanent re sident status for his wife wa s “uncons tituti onal bec ause it vi olated [their] due pr ocess r ights and their right to marry and pursue happi ness.” Id. at 628. 8 The appellants had allege d that U SCIS’s revocation of t he original grant of appella nt Green’s Form I - 130 Petition to obtain lawf ul permanent resident status for his w ife “viol ated the ir cons titut ional due process rights bec ause they never had t he opportu nity to confront or cross - examine” t he wife’s former spous e regar ding his cla ims about a fraudule nt marria ge. Id. a t 1343.

C HAIREZ V. M AYORKAS 35 raised in federal court in a petition for review of a final order of removal” (emphasis added)) 9; c.f. Garcia v. United States Citizenship & Immigr. Servs., 146 F.4th 743 (9th Cir. 2025), petition for c ert. filed, No. 25 - 937 (U.S. Jan. 28, 2026) (following the reasoning of Nakka in confir ming that Nakka ’s application of § 1252(a)(2)(B) a nd (D)’s jurisdictional bar and channeling provision to constitutional challenges to USCIS’s discretionary decisions applied equally to statutory challenges to USCIS’s discretionary decisions). The majority’s choice to follow Poursina not only entrenches a poorly reasoned precedent and neglects an intra - c ircuit split, but it will also have signif icant practical consequences. Under the majority’s logic, despite § 1252(a)(2)(B)’s jurisdictional bar, an alien may bring a constitutiona l claim challengin g USCIS’s discre tionary denial of relief in federal distr ict court; the n, if his claim is “colorabl e,” di scov ery wi ll be nec essary, pre cipit ating months or even years of litigation. See U.S. District Courts– Combined Civil and Criminal Federal Court Management Statistics (June 30, 2025), htt ps://www.uscourts.gov/data- news/d ata -tables/2025/06/30/federal-court- manag ement - statistics/n -a -3. The alien may use these proce edings to argue for a stay in any concurrent removal proceedings, an argument that may be compelling, considering th e fact that 9 Though the district co urt said that the nature of his constitution al claim was “not entirely clear,” appellant appears to have alleged t hat USCIS’s denial of his Fo rm I - 212 a pplication f or rea djustment of sta tus unde r 8 U.S.C. § 1255 vi olated the D ue Proce ss Cl ause of the Fi fth Amendment in part bec ause he had pre viousl y been grant ed a For m I - 690 waiver. Akinmul ero v. Dep’t of Home land Sec., No. C 20 - 1135RSL, 2023 WL 356458, at *3 (W.D. Was h. Jan. 23, 2023), on recons iderati on, No. C20 - 1135RSL, 20 23 WL 3058 014 (W. D. Wash. Apr. 24, 202 3).

36 C HAIREZ V. M AYORKAS any such claim would have al ready been d eeme d to be at least “co lorable ” by a fed eral court. See 8 C.F.R. § 1003.29. The result will be added expense and unnecessary delays in the removal of aliens who, while they might pr efer to have their cla ims heard in district courts, would have the opportunity for their claims to be heard on a petition for revi ew of a final order of removal anyway. Finally, th ough I a gree with the majority’ s ultima te conclusion that there is no jurisdiction over Chairez’s constitutiona l claim, I do not agree with the majority’s choice to avoid jurisdiction on the basis that the cl aim is not “colorabl e.” Whi le I unde rstand that it is a longstanding practice of this Court to avoid jurisdiction based o n whether a claim is “c olorable,” I think this practic e is somewha t illogical and ought to be reevaluated. See, e.g., Torres - Aguilar v. I.N.S., 246 F.3d 1267, 1271 (9th C ir. 2001) (finding tha t a claim mu st have “so me possible va lidity” to trigger jurisdiction) (internal citations and quotati on marks omitted). “The requirement that jur isdiction be established as a threshold matter springs from the nature and li mits of the judicial power of the United States and is inflexible and without exception.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 – 95 (1998) (interna l quotation marks and citation omitted) (emphasis added). This is so because “[j]urisdiction is power to declar e the law,” and “[w]ithout jurisdiction the court cannot proceed at all in any cause.” Ex parte McCardle, 74 U.S. 506, 514 (1868) (emphasis added). 10 To assert that the jur isdiction of the court depends 10 The majo rity counterin tuitively recogn izes this aspect of jurisdiction, referrin g to it as a “thr eshold questi on,” in an unrelate d pas sage of the opinion. See Maj. Op. at 1 8 n.4. Yet it creates a “colorability ” inquiry

C HAIREZ V. M AYORKAS 37 on the mer its of the cla im – even upon such a low standar d as “col orable ” – is antithetical to th e very definition of jurisdiction. In a sense, it is putting the cart (the me rits) before the horse (jurisdiction). The Supreme Court has made minor exceptions to the rule tha t a court ma y not review the merits of a claim without first con firming that it has jurisdiction, but it h as limited those exceptions to instance s in which “the alleged claim under the Constitution or feder al st atutes cl early appears to be immaterial and made solely for the purpos e of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682 – 83 (1946). And even then, “[t]h e accu racy of cal ling these dismis sals jurisdictional has been que stioned.” Id. at 683. An d note the date of the Court’s decision: decades before Congress enacte d the jurisdiction -stripping provisions of § 1252. Here, the majority asserts that Plaintif f’s due proc ess claim is “entirely speculative and not colorable.” Maj. Op. at 23. But the majority of fers no further analysis. Was the claim “made solely for the pur pose of obtaining jurisdiction,” and if so, wha t is the basis for that asse rtion? Was the claim simply “insubstantial and frivolous,” and if so, what facts made it so? And why w ould Plaintiff be unable to cure an insubstantial claim by filing an amended complaint and stating facts that would endow hi s claim with “some possible validity”? See T orres -Aguilar, 246 F.3d at 1271 (internal citations and quotation marks omit ted); Fed. that is antecede nt even t o the s upposedl y “thres hold” q uestion of jurisdictio n. Maj. Op. at 21 – 23. Wha t can one c all the t hreshol d before the thres hold? A pre - thres hold thres hold?

38 C HAIREZ V. M AYORKAS R. Civ. P. 15(a)(2) (“ The court should freely give leave [to amend] when justice so requires.”). 11 Of course, all of these questions would be avoided were the majority simply to follow the clear meaning of § 1252(a)(2)(B) and (D), as we did in Nakka, and reject jurisdiction on that basis. But befor e the Court can do so, an en banc panel of this Court must be constitut ed to re solve the irrecon cilabl e confli ct be tween Poursina and N akka. For the reasons above, as to Part D, I concur only in the judgment, not in the reasoning invoked. 11 If it were the case that § 1252(a)(2) (B) and (D) did n ot appl y to Chaire z’s clai ms, I would be i nclined t o find that in regard t o Chairez’s Fifth Amendment due process claim, C hairez failed to allege “sufficient factual matter, accepted as t rue, to ‘stat e a claim to relief that is pla usible on its fa ce,’” un der Fed. R. Ci v. P. 12(b) (6). See As hcroft v. Iqbal, 556 U.S. 662, 67 8 (2009) (quoting Bell Atl. Co rp. v. Twombly, 550 U.S. 544, 570 (200 7)). But I would not find that the Court lacked juris diction on the basis of the merits o f the claim, as the majo rity does he re.