Gill v. Bardini

427 F. App'x 571

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 14, 2011
• Docket: No. 10-15712
• Status: Published

Opinion

MEMORANDUM

*

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 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.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . The parties agreed that Gill's asylum claim is not before us at this time.

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.