Piara Gill v. Emilia Bardini ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 14 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
PIARA SINGH GILL, No. 10-15712
Plaintiff - Appellant, D.C. No. 5:08-cv-05190-RMW
v.
MEMORANDUM *
EMILIA BARDINI, Director of the San
Francisco Asylum Office; SAN
FRANCISCO ASYLUM OFFICE, an
agency of the United States Citizenship
and Immigration Services; LORI
SCIALABBA, Director, Refugee, Asylum,
and International Operations, an agency of
the United States Citizenship and
Immigration Services; NANCY
ALCANTAR, Field Office Director,
Office of Detention and Removal
Operations, an agency of the United States
Immigration and Customs Enforcement;
CITIZENSHIP AND IMMIGRATION
SERVICES, an agency of the Department
of Homeland Security; FRANCIS D.
SICILIANO, Field Office Director, San
Francisco Naturalization Unit; MARK
TEMPLE, Officer in Charge of
Conducting the Naturalization
Examination,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted January 14, 2011
San Francisco, California
Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.
Piara Singh Gill (Gill) challenges the district court’s decision to grant the
government’s motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The
district court did not address Gill’s claim challenging the constitutionality of 8
C.F.R. § 208.24.1
1. The district court erred in granting the government’s motion to dismiss for
lack of subject matter jurisdiction, under Fed. R. Civ. P. 12(b)(1). Pursuant to 8
U.S.C. § 1421(c), the district court had jurisdiction to review the denial of Gill’s
application for naturalization. See United States v. Hovsepian, 359 F.3d 1144,
1162 (9th Cir. 2004). Although the district court’s review is limited to review of
1
The parties agreed that Gill’s asylum claim is not before us at this time.
2 10-15712
the specific basis of the denial of naturalization, see De Lara Bellajaro v.
Schiltgen, 378 F.3d 1042, 1043-44 (9th Cir. 2004), as amended, it was error for the
district court to conclude that it lacked jurisdiction entirely. See id.2
2. The district court dismissed the remainder of Gill’s claims pursuant to Fed. R.
Civ. P. 12(b)(6), without specifically resolving Gill’s claim concerning the
constitutionality of 8 C.F.R. § 208.24. In failing to address this argument, the
district court erred. The district court had jurisdiction over this issue, because the
BIA is without authority to determine the constitutionality of regulations. See Gete
v. I.N.S., 121 F.3d 1285, 1291 (9th Cir. 1997).
REVERSED and REMANDED for further proceedings consistent with
this disposition.
2
Our recent decision in Cabaccang v. USCIS, 627 F.3d 1313 (9th Cir. 2010)
does not compel a different result. As the panel in Cabaccang recognized, there is
no statute authorizing judicial review of the denial of an adjustment of status, see
id. at 1316-17. In contrast, 8 U.S.C. § 1421(c) expressly provides for judicial
review of the denial of a naturalization application. See De Lara Bellajaro, 378
F.3d at 1046.
3 10-15712