FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BELEN CABACCANG; ISIDRO 

CABACCANG,

Plaintiffs-Appellants,

v.

UNITED STATES CITIZENSHIP AND No. 09-56089

IMMIGRATION SERVICES; DAVID

D.C. No. ROARK, Director of CIS Texas  2:07-cv-00574- Service Center; ALEJANDRO

M DDP-E AYORKAS, Director of CIS; JANET

NAPOLITANO, Secretary of the OPINION

United States Department of

Homeland Security; ERIC H.

HOLDER JR., Attorney General of

the United States,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

November 5, 2010—Pasadena, California

Filed December 29, 2010

Before: Mary M. Schroeder, Richard C. Tallman and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Tallman

20731
COUNSEL

Daniel P. Hanlon, Hanlon Law Group, Pasadena, California,

for the plaintiffs-appellants.

Gisela A. Westwater, District Court Section, Office of Immigration Litigation, U.S. Department of Justice, Washington,

DC, for the defendants-appellees.

OPINION

TALLMAN, Circuit Judge:

We must decide whether a district court may hear an alien’s

challenge to the government’s denial of an application to

adjust status when removal proceedings are simultaneously

pending against the alien. We hold it may not. Because the

alien plaintiffs here are currently in removal proceedings, we

vacate the district court’s order granting summary judgment

to the defendants and remand with instructions to dismiss the

action for lack of jurisdiction.

CABACCANG v. USCIS 20733
I

Plaintiffs-Appellants Isidro and Belen Cabaccang, husband

and wife and citizens of the Philippines, entered the United

States with B-2 nonimmigrant tourist visas on July 17, 2004.

They were admitted for a period of six months. Five months

later, the Cabaccangs each filed a Form I-485 Application for

Adjustment of Status. The Cabaccangs based their applications on a Form I-140 Petition for Alien Worker filed by Isidro’s employer, Alhambra Hospital Medical Center, to

classify him as a skilled worker in the position of registered

nurse. Isidro sought status adjustment as the primary beneficiary of the hospital’s I-140 petition, while Belen sought

derivative adjustment as Isidro’s dependent spouse. United

States Citizenship and Immigration Services (USCIS) denied

the Cabaccangs’ applications because Isidro had not provided

certain required documentation.

On January 16, 2005, during the pendency of their applications to adjust status, the Cabaccangs’ six-month tourist visas

expired. Almost thirteen months after the visas expired, the

Cabaccangs filed a second set of applications for adjustment

of status, which underlie this action. Similar to their first

applications, the Cabaccangs based their second applications

on an I-140 petition filed by Alhambra Hospital, this time on

behalf of Belen, while Isidro sought to adjust his status

derivatively. USCIS denied the Cabaccangs’ second applications because the Cabaccangs had not provided “substantial

evidence to show legal presence or maintenance of status.”

The Cabaccangs filed motions to reconsider. USCIS

responded that the Cabaccangs’ lawful nonimmigrant status

had expired on January 16, 2005, when their tourist visas ran

out. See 8 C.F.R. §§ 214.1(c)(2), 248.1(b). Accordingly,

USCIS reasoned, the Cabaccangs did not qualify for status

adjustment under two separate subsections of 8 U.S.C.

§ 1255(k). First, the Cabaccangs did not have lawful status at

the time of their second applications. See 8 U.S.C.

20734 CABACCANG v. USCIS
§ 1255(k)(1). Second, they had failed to continuously maintain lawful status for a period exceeding 180 days, beginning

January 16, 2005. See id. § 1255(k)(2)(A). USCIS dismissed

their motions to reconsider on January 3, 2007.

Just twenty-one days later, before the Department of

Homeland Security (DHS) initiated removal proceedings, the

Cabaccangs filed this action in Los Angeles district court

seeking declaratory, injunctive, and mandamus relief. The district court granted the Cabaccangs’ application for a temporary restraining order, directing USCIS to reopen and

reconsider their applications for adjustment of status. USCIS

complied, reopening the Cabaccangs’ applications and issuing

temporary work-authorization cards in the meantime. As a

result, the district court dismissed the Cabaccangs’ original

complaint as no longer ripe. 

USCIS again denied the Cabaccangs’ reopened applications. The Notice of Decision stated, “The Service has determined that the original basis for the denial of your application

is still valid and the denial is reaffirmed.” Four days later, on

May 22, 2008, the DHS initiated removal proceedings against

Belen via a Notice to Appear. This notice turned out to be

defective, forcing the DHS to issue a new notice in April

2009. On June 25, 2008, the DHS also initiated removal proceedings against Isidro via a Notice to Appear. 

Shortly thereafter, the district court reopened this action as

again ripe. The Cabaccangs filed an amended complaint on

July 30, 2008, alleging that USCIS’s denial of their second

applications resulted from an arbitrary and capricious interpretation of the terms “lawful admission” and “lawful status”

in § 1255(k), thereby violating the Administrative Procedure

Act (APA).1See 5 U.S.C. § 706(2)(A). The parties filed crossmotions for summary judgment on whether USCIS’s interpretation of § 1255(k) was arbitrary and capricious. The defen1The Cabaccangs do not challenge the denial of their first applications.

CABACCANG v. USCIS 20735
dants also filed a motion to dismiss, arguing the district court

lacked subject matter jurisdiction. In relevant part, the defendants claimed the initiation of removal proceedings rendered

USCIS’s denial of status adjustment nonfinal and meant the

Cabaccangs had not exhausted their administrative remedies,

thus precluding review by the district court.

On June 15, 2009, the district court denied the motion to

dismiss, finding it had jurisdiction but noting “mixed jurisprudence” on the issue. Meanwhile, the district court granted the

defendants’ cross-motion for summary judgment, concluding

USCIS’s interpretation of § 1255(k) was not arbitrary or

capricious under the APA. The Cabaccangs now appeal that

ruling. 

II

Before we may reach the Cabaccangs’ substantive APA

claim, we must determine whether the district court properly

concluded it had jurisdiction over this action. Under the APA,

agency action is subject to judicial review only when it is

either: (1) made reviewable by statute; or (2) a “final” action

“for which there is no other adequate remedy in a court.” 5

U.S.C. § 704. No statute authorizes judicial review over denials of status adjustment, so the sole issue here is whether

USCIS’s denial of the Cabaccangs’ applications was a “final”

agency action for which there was no other adequate remedy.

[1] The imposition of an obligation or the fixing of a legal

relationship is the indicium of finality in the administrative

process. Mount Adams Veneer Co. v. United States, 896 F.2d

339, 343 (9th Cir. 1990). Here, this indicium is lacking. During their pending removal proceedings, the Cabaccangs have

the right to renew their applications to adjust status. See 8

C.F.R. §§ 245.2(a)(5)(ii), (c), 1245.2(a). They will have the

opportunity to fully develop their arguments before the immigration judge (IJ). The IJ then has unfettered authority to

modify or reverse USCIS’s denial of the Cabaccangs’ applica20736 CABACCANG v. USCIS
tions, regardless of USCIS’s prior determination. See 8 C.F.R.

§§ 1240.1(a)(1)(ii), 1245.2(a)(1)(i) (granting “exclusive jurisdiction” over the issue to the IJ once removal proceedings are

initiated). Thus, USCIS’s denial of the Cabaccangs’ applications is not yet a final agency action because of the Cabaccangs’ right to renew their applications before the IJ.

Endorsing a similar view, we have previously held that a

motion for reconsideration, an appeal to a superior agency

authority, or an intra-agency appeal to an administrative law

judge (ALJ) all render an agency decision nonfinal. Acura of

Bellevue v. Reich, 90 F.3d 1403, 1407-08 (9th Cir. 1996). The

Cabaccangs attempt to distinguish Acura, arguing their pending removal proceedings are neither an appeal to a superior

agency authority nor an intra-agency appeal to an ALJ. As the

Cabaccangs correctly note, removal proceedings are handled

by the Executive Office for Immigration Review, a Department of Justice agency, whereas their applications to adjust

status were denied by USCIS, a DHS agency. The Cabaccangs argue they have no review whatsoever within USCIS or

the DHS itself,2 rendering Acura inapposite. 

[2] This argument is unconvincing. We see no reason why

a hypothetical appeal to USCIS (or the DHS) would render

nonfinal the denial of an application to adjust status, while the

immediate pendency of removal proceedings would not. In

Acura, we explained that an intra-agency appeal to an ALJ

makes agency action nonfinal because the ALJ has “de novo

review of the [agency]’s decision.” Id. at 1408. Through this

standard of review, the ALJ may “affirm, deny, reverse, or

modify” the agency action in whole or in part. Id. at 1406

(internal quotation omitted). The situation here is no different.

As described above, the IJ in the Cabaccangs’ ongoing

removal proceedings has de novo review over USCIS’s denial

2The Cabaccangs are correct to this extent, as denials of status adjustment are not administratively reviewable outside of removal proceedings.

8 C.F.R. § 245.2(a)(5)(ii). 

CABACCANG v. USCIS 20737
of their applications. See 8 C.F.R. §§ 1240.1(a)(1)(ii),

1245.2(a)(1)(i). It is immaterial that this further review takes

place in a different agency within a different executive department. Like the situations described in Acura, the crucial consideration here is that the IJ may completely wipe away

USCIS’s prior decision. Consequently, USCIS’s denial of

their applications is not yet final, and the district court lacked

jurisdiction under the APA. See 5 U.S.C. § 704. 

[3] Similarly, the pendency of removal proceedings means

the Cabaccangs have not exhausted their administrative remedies. See Reiter v. Cooper, 507 U.S. 258, 269 (1993). “Where

relief is available from an administrative agency, the plaintiff

is ordinarily required to pursue that avenue of redress before

proceeding to the courts; and until that recourse is exhausted,

suit is premature and must be dismissed.” Id. This rule allows

agencies to develop a complete factual record and apply their

expertise before judicial review occurs. White Mountain

Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988).

Only in “exceptional circumstances” is administrative exhaustion not required. Id. The Cabaccangs presently have the ability to reopen their applications to adjust status during their

pending removal proceedings. Undoubtedly they will do so.

Until they have exhausted this available administrative remedy, the district court cannot hear their claim.

We distinguish this case from our prior cases exercising

jurisdiction over denials of status adjustment. See Chan v.

Reno, 113 F.3d 1068 (9th Cir. 1997); Tang v. Reno, 77 F.3d

1194 (9th Cir. 1996); Jaa v. INS, 779 F.2d 569 (9th Cir.

1986). The district court relied on those cases in denying the

defendants’ motion to dismiss. Nevertheless, the court noted

“mixed jurisprudence” on the issue and recognized that defendants’ arguments against jurisdiction carried “persuasive

force.” Further, the court cautioned that Chan, Tang, and Jaa

might be “distinguishable or inapplicable in a situation such

as this one” but declined to further address that argument

because defendants had not raised it. 

20738 CABACCANG v. USCIS
Indeed, the cases are distinguishable. Unlike here, those

cases did not involve removal proceedings that were pending

during the federal action. In Chan and Tang, removal proceedings had never been initiated. See Chan, 113 F.3d at

1070; Tang, 77 F.3d at 1196. Further, the jurisdictional issue

was never raised in Tang. See 77 F.3d at 1196. In Jaa,

removal proceedings were already complete and a deportation

order had issued. 779 F.2d at 570-71. As the Third Circuit has

explained, this distinction is crucial. See Pinho v. Gonzalez,

432 F.3d 193, 201-02 (3d Cir. 2005). Without a pending

removal proceeding, a denial of status adjustment is final

because there is no appeal to a superior administrative authority. Id.; see also supra n.2. On the other hand, when removal

proceedings are pending, further administrative relief is available. Pinho, 432 F.3d at 201-02. Accordingly, we join our sister circuits in holding that district courts lack jurisdiction to

review denials of status adjustment if removal proceedings are

simultaneously pending. Howell v. INS, 72 F.3d 288, 292-93

& n.5 (2d Cir. 1995); Randall v. Meese, 854 F.2d 472, 481-82

(D.C. Cir. 1988). 

Finally, we reject the Cabaccangs’ argument that jurisdiction vested with the filing of their original complaint in January 2007, notwithstanding the subsequent initiation of

removal proceedings. This argument fails for at least two reasons. First, the operative complaint in this case is the Cabaccangs’ first amended complaint filed on July 30, 2008. This

filing occurred after both Cabaccangs were issued Notices to

Appear, thereby initiating removal proceedings (although

Belen’s notice was later reissued to cure a defect). Second,

although jurisdiction is usually determined from the filing of

the relevant complaint, after-arising events can defeat jurisdiction by negating the ripeness of a claim. See Hose v. INS,

180 F.3d 992, 996 (9th Cir. 1999). Such is the case here.

Regardless of whether the Cabaccangs’ removal proceedings

began before this action, the pendency of removal proceedings now means their claims are not ripe for judicial review.

See Wolfson v. Brammer, 616 F.3d 1045, 1057 (9th Cir. 2010)

CABACCANG v. USCIS 20739
(holding that claims are not ripe when the injury “may never

occur” (internal quotation omitted)). To hold otherwise would

allow plaintiffs to confer jurisdiction on the federal courts

simply by racing to the courthouse before the government initiates removal proceedings.

Because the district court lacked jurisdiction, we do not

reach the Cabaccangs’ APA claim on the merits.

III

[4] The district court lacked jurisdiction over this action.

USCIS’s denial of the Cabaccangs’ applications to adjust status is nonfinal, and the Cabaccangs have not exhausted their

administrative remedies. Thus, we vacate the district court’s

order of June 15, 2009, and remand with instructions to dismiss the action for lack of jurisdiction.

VACATED and REMANDED with instructions.

20740 CABACCANG v. USCIS