Olasebikan Akinmulero v. Usdhs

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 27, 2025
• Docket: 23-35364
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 27 2025 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OLASEBIKAN N. AKINMULERO, No. 23-35364

Plaintiff-Appellant, D.C. No. 2:20-cv-01135-RSL

v. MEMORANDUM* U.S. DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,

Defendants-Appellees,

and

UNITED STATES ATTORNEY GENERAL; SECRETARY, Department of Homeland Security; DIRECTOR, United States Citizenship and Immigration Services,

Defendants.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted February 27, 2025**

Before: S.R. THOMAS, SILVERMAN, and N.R. SMITH, Circuit Judges.

Plaintiff, a Nigerian national with a long history in immigration proceedings,

sought adjustment of status under 8 U.S.C. § 1255 outside of removal proceedings.

After the agency denied relief, plaintiff challenged the decision in district court,

alleging Administrative Procedure Act and constitutional claims. The district court

dismissed for lack of subject matter jurisdiction. Plaintiff appeals.

We have jurisdiction to consider our jurisdiction. Havensight Cap. LLC v.

Nike, Inc., 891 F.3d 1167, 1171 (9th Cir. 2018). We agree with the district court

that it lacked jurisdiction to consider plaintiff’s claims, and we dismiss the appeal

for lack of jurisdiction. Plaintiff’s legal and constitutional challenges to his

individual application for adjustment of status can only be raised in federal court in

a petition for review of a final order of removal. Nakka v. USCIS, 111 F.4th 995,

1014-16 (9th Cir. 2024).

The district court properly considered its jurisdiction in the context of the

government’s motion for reconsideration. “[S]ubject matter jurisdiction cannot be

waived . . . and may be raised at any time during proceedings.” Hansen v. Dep’t of

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 Treasury, 528 F.3d 597, 600 (9th Cir. 2007) (cleaned up). In fact, the district court

had a duty to consider its own subject matter jurisdiction. Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 583 (1999).

All pending motions are denied as moot.

APPEAL DISMISSED.