Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL A. DE ROOIJ and NICHOLAS No. 24-1455 FROIS, D.C. No. Plaintiffs-Appellants, 2:23-cv-06321-AB-SSC v. MEMORANDUM* JOSEPH B. EDLOW; et al., Defendants-Appellees. Appeal from the United States District Court for the Central District of California André Birotte, Jr., District Judge, Presiding Submitted October 26, 2026** Pasadena, California Before: PAEZ, OWENS, and SANCHEZ, Circuit Judges. Dr. Michael De Rooij and Nicholas Frois appeal the district court’s denial of their claim under the Administrative Procedure Act, which challenged the United States Customs and Immigration Services’ (“USCIS”) denial of Frois’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). applications for adjustment of status and dismissal of Frois’s motion to reopen or reconsider. The district court dismissed the challenge for lack of subject matter jurisdiction. We have jurisdiction to review the district court’s decision under 28 U.S.C. § 1291. We affirm. 1. The Immigration and Nationality Act (“INA”) precludes judicial review of “any judgment regarding the granting of” adjustment of status, except for constitutional and legal questions “raised upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C. §§ 1252(a)(2)(B)(i), 1252(a)(2)(D). The § 1252(a)(2)(B)(i) jurisdictional bar has been interpreted broadly, applying to the ultimate determination denying relief as well as to any underlying factual determinations. See Patel v. Garland, 596 U.S. 328, 338 (2022). Therefore, the district court lacked jurisdiction over USCIS’s denial of Frois’s applications for adjustment of status, which was based in part on the factual finding that Frois had a prior fraudulent marriage—making him inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i)—and in part on the agency’s decision not to favorably exercise its discretion. That Frois is not in removal proceedings and, therefore, currently unable to file a petition for review does not change the fact that the district court may not review his claims. See Cabello Garcia v. USCIS, 146 F.4th 743, 754 (9th Cir. 2025) (confirming that the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) applies 2 even when “the agency decision denying relief is made ‘outside removal proceedings’” (citation omitted)). Should Frois find himself in removal proceedings in the future, he may pursue his claims through that administrative review scheme. If he is not granted relief, he may then raise legal and constitutional claims through a petition for review to the appropriate circuit court of appeals. 2. Even if the § 1252(a)(2)(B)(i) jurisdictional bar was not at issue, judicial review of Frois’s adjustment of status denial is also precluded by 8 U.S.C. § 1252(a)(2)(B)(ii) because adjustment of status is a discretionary form of relief. See Esquivel-Garcia v. Holder, 593 F.3d 1025, 1029 (9th Cir. 2010) (“Adjustment of status is a discretionary form of relief.”); Hassan v. Chertoff, 593 F.3d 785, 789 (9th Cir. 2010) (“[J]udicial review of a discretionary determination is also expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(ii).”). Thus, USCIS’s determination that Frois did not merit a favorable exercise of discretion is not subject to judicial review. 3. De Rooij and Frois also argue that the district court has jurisdiction to review their challenge because the provision of the INA that governs the allocation of immigrant visas makes it compulsory for USCIS to grant adjustment of status to follow-to-join derivative spouses. See 8 U.S.C. § 1153(d). This argument is flawed for three reasons. First, § 1252(a)(2)(D)(i) bars review of any judgment 3 regarding Frois’s applications for adjustment of status, regardless of whether the judgment is discretionary or not. Second, § 1153 governs the allocation of immigrant visas, not the adjustment of status process. Third, adjustment of status determinations are explicitly discretionary under § 1255, and therefore also barred from review by § 1252(a)(2)(D)(ii). Under § 1153(d), Frois may have been entitled to the same status as his husband regarding visa eligibility. But an approved visa petition “does not automatically entitle the [noncitizen] to adjustment of status.” Agyeman v. INS, 296 F.3d 871, 879 (9th Cir. 2002) (citing INS v. Chadha, 462 U.S. 919, 937 (1983)). In addition to visa eligibility, Frois must be admissible and receive a favorable exercise of discretion to qualify for adjustment of status. See 8 U.S.C. § 1255(i)(2)(A). USCIS denied Frois’s applications for adjustment of status because of his conceded inadmissibility and because he did not merit a favorable exercise of discretion. The district court lacked jurisdiction to review that denial under §§ 1252(a)(2)(D)(i) and (ii). 4. De Rooij and Frois additionally argue that USCIS legally erred by treating Frois’s applications as filed under § 1255(a) (the general provision governing adjustment of status) instead of § 1255(i) (the exception for certain noncitizens who filed their petition before April 30, 2001, but have not maintained lawful presence). (“Furthermore, adjustment of status under INA § 245(a) [8 4 U.S.C. § 1255(a)] is a discretionary application.”). Although USCIS failed to cite the correct provision of § 1255 when adjudicating Frois’s petition, this incorrect citation does not constitute legal error because it was immaterial. An applicant for adjustment of status whose unlawful presence is excused by § 1255(i) must satisfy the same criteria as an applicant who need not invoke the § 1255(i) exception. Both § 1255(a) and § 1255(i) require that the applicant be eligible for a visa and admissible for permanent residence, and that a visa is immediately available to the applicant at the time the application is filed. See 8 U.S.C. § 1255(a), (i). Furthermore, applications for adjustment of status under § 1255(i) are subject to the same jurisdictional barriers as applications under § 1255(a). Thus, USCIS’s mistaken citation does not constitute legal error. And, even if it were legal error, it would still be unreviewable since Frois is not petitioning for review from a final removal order. Because the district court lacked jurisdiction to hear Frois’s claims, we affirm the district court’s dismissal. AFFIRMED. 5