24-2304 Xia v. Bondi
In the United States Court of Appeals For the Second Circuit August Term, 2024
No. 24-2304
S UQIN XIA,
Plaintiff-Appellant, v.
P AMELA BONDI, United States Attorney General; KRISTI NOEM, Secretary, Department of Homeland Security; KIKA SCOTT, Acting Director, U.S. Citizenship and Immigration Services; CONNIE NOLAN, Associate Director for Service Center Operations, U.S. Citizenship and Immigration Services; BARBARA OWLETT, Field Office Director, U.S. Citizenship and Immigration Services Long Island,
Defendants-Appellees.∗
On Appeal from a Judgment of the United States District Court for the Eastern District of New York.
A RGUED: FEBRUARY 6, 2025
D ECIDED: MAY 19, 2025
∗ The Clerk of Court is respectfully directed to amend the official caption as set forth above.
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Before: PARKER, BIANCO, and NARDINI, Circuit Judges. 1
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Plaintiff-Appellant Suqin Xia, a citizen of the People's Republic 4 of China who has lived in the United States unlawfully for more than 5 thirty years, applied for adjustment of status to lawful permanent 6 resident, a discretionary form of relief, under 8 U.S.C. § 1255. The 7 United States Citizenship and Immigration Services ("USCIS") 8 denied Xia's application after determining that she did not warrant a 9 favorable exercise of discretion. Xia challenged the agency's decision 10 in the United States District Court for the Eastern District of New York 11 under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative 12 Procedure Act, 5 U.S.C. §§ 701-706. The district court (Allyne R. Ross, 13 District Judge) determined that 8 U.S.C. § 1252(a)(2)(B)(i)—which, in 14 pertinent part, bars judicial review of "any judgment" regarding an 15 application made under § 1255—applied to this action, and therefore 16 dismissed the complaint for lack of subject matter jurisdiction 17 pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. We 18 agree with the district court that a denial of an application for 19 adjustment of status under § 1255 is a "judgment" for purposes of 20 § 1252(a)(2)(B)(i) regardless of whether it is issued by an immigration 21 court or USCIS. Accordingly, the judgment of the district court is 22
AFFIRMED. 23
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MARY B. MCGARVEY-DEPUY (Varuni 26 Nelson, Kimberly A. Francis, on the brief), 27 Assistant United States Attorneys, for Breon 28 Peace, United States Attorney for the 29 Eastern District of New York, Brooklyn, NY, 30 for Defendants-Appellees. 31
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JEAN WANG, Wang Law Office, PLLC, 1 Flushing, NY, for Plaintiff-Appellant. 2
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WILLIAM J. NARDINI, Circuit Judge: 5 Plaintiff-Appellant Suqin Xia, a citizen of the People's Republic 6 of China who has lived in the United States unlawfully for more than 7 thirty years, applied for adjustment of status to lawful permanent 8 resident, a discretionary form of relief, under 8 U.S.C. § 1255. The 9 United States Citizenship and Immigration Services ("USCIS") 10 denied Xia's application after determining that she did not warrant a 11 favorable exercise of discretion. Xia challenged the agency's decision 12 in the United States District Court for the Eastern District of New York 13 under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative 14 Procedure Act ("APA"), 5 U.S.C. §§ 701-706. The district court 15 (Allyne R. Ross, District Judge) determined that 8 U.S.C. 16 § 1252(a)(2)(B)(i)—which, in pertinent part, bars judicial review of 17
"any judgment" regarding an application made under § 1255—18 applied to this action, and therefore dismissed the complaint for lack 19 of subject matter jurisdiction pursuant to Federal Rule of Civil 20 Procedure 12(b)(1). 21
We agree with the district court that § 1252(a)(2)(B)(i) precludes 22 judicial review of Xia's claims. Although Xia argues that this 23 provision applies only to judgments by immigration courts, the 24 Supreme Court's reasoning in Patel v. Garland, 596 U.S. 328 (2022), and 25 the overall statutory framework lead us to conclude otherwise. We 26 hold that a denial of an application for adjustment of status under 27
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§ 1255 is a "judgment" for purposes of § 1252(a)(2)(B)(i) regardless of 1 whether it is issued by an immigration court or USCIS. Because Xia 2 challenges such a judgment, the jurisdictional bar applies. Xia's 3 remaining arguments are unavailing. Accordingly, the judgment of 4 the district court is AFFIRMED. 5
I. Background 6
A. Xia's Unlawful Presence in the United States 7 Xia arrived at John F. Kennedy International Airport in New 8 York in October 1993 without authorization to enter the United States. 9 At the time, she was several months pregnant with twin daughters, 10 and she claimed that she feared returning to China because she would 11 face persecution for violating that country's one-child policy. She was 12 paroled into the United States pending an asylum hearing. In 13 February 1995, an immigration judge denied her asylum application 14 and ordered her removed to her native country. But that order was 15 never executed, and Xia has remained in the United States unlawfully 16 for over three decades. 17
B. Xia's Application for Adjustment of Status 18 In October 2021, pursuant to 8 U.S.C. § 1255(a), Xia filed a 19 Form I-485 Application to Register Permanent Residence or Adjust 20 Status, as the immediate relative of a U.S. citizen. In a decision dated 21 March 7, 2024, USCIS denied Xia's application, basing its decision 22 solely on discretionary grounds without making any determination 23 as to her statutory eligibility for adjustment of status. The agency 24
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identified several factors that weighed against granting the 1 application, including that Xia "blatantly disregarded" the 2 outstanding removal order and remained in the United States in 3 violation of U.S. law for nearly thirty years, and that she incredibly 4 professed ignorance of the removal order during her interview for her 5 adjustment application despite having been provided a copy of the 6 order when it was issued in 1995. App'x 66. Additional negative 7 factors included Xia's three convictions for disorderly conduct, which 8 demonstrated "a disregard for criminal law," and her twenty-plus 9 years of unauthorized employment. Id. at 66-67. On the positive side 10 of the ledger, the agency primarily considered Xia's status as the 11 mother of two adult U.S. citizens, but because they were born while 12 she was already in removal proceedings, her "ties to them constitute 13 after-acquired equities and [were therefore] given less weight." Id. at 14
68. After weighing all relevant factors, the agency decided that Xia 15 did "not warrant a favorable exercise of discretion." Id. 16
C. District Court Proceedings 17 On January 19, 2024, while her adjustment application was still 18 pending, Xia commenced this action under the Mandamus Act, 19
28 U.S.C. § 1361, and Section 706(1) of the APA, seeking an order 20 directing USCIS to adjudicate the application. After USCIS denied 21 the application, Xia amended her complaint to seek judicial review of 22 that decision. She alleged that the agency violated the APA by issuing 23 a decision that was contrary to law, arbitrary and capricious, and 24 unsupported by the record. The defendants—Merrick Garland, then-25 U.S. Attorney General; Alejandro Mayorkas, then-Secretary of the 26
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U.S. Department of Homeland Security; Ur Mendoza Jaddou, then-1 Director of USCIS; and USCIS officers Connie Nolan and Barbara 2 Owlett 1
—moved to the dismiss the complaint for lack of subject 3 matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).24 The district court agreed with the defendants that it lacked 5 subject matter jurisdiction over Xia's claims. The court determined 6 that the jurisdictional bar set forth in 8 U.S.C. § 1252(a)(2)(B)(i), which 7 precludes Article III courts from reviewing "any judgment regarding 8 the granting of relief under section . . . 1255," foreclosed this action. 9 Under binding Second Circuit precedent, the court explained, the 10 jurisdictional bar "strips the courts of jurisdiction to review the [Board 11 of Immigration Appeals]'s weighing of discretionary factors in 12 denying an application for adjustment of status under § 1255." Xia v. 13 Garland, No. 24-CV-395 (ARR) (SJB), 2024 WL 3925766, at *2 (E.D.N.Y. 14 Aug. 23, 2024) (first citing Wallace v. Gonzales, 463 F.3d 135, 138 15 (2d Cir. 2006); and then citing Guyadin v. Gonzales, 449 F.3d 465, 468 16 (2d Cir. 2006)). Applying that rule here, the court concluded that 17 because USCIS denied Xia's application as a matter of discretion, the 18 denial constituted an unreviewable "judgment" for purposes of 19
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§ 1252(a)(2)(B)(i). Accordingly, the court granted the defendants' 1 motion to dismiss pursuant to Rule 12(b)(1). 2
II. Discussion 3 On appeal, Xia contends that the district court erred in 4 dismissing her complaint for lack of subject matter jurisdiction. She 5 argues, among other things, that § 1252(a)(2)(B)(i) does not apply here 6 because it bars judicial review only of judgments by an immigration 7 court, not of decisions by USCIS. We disagree. The district court 8 correctly determined that § 1252(a)(2)(B)(i) precludes judicial review 9 of USCIS's decision and therefore properly dismissed Xia's claims 10 under Rule 12(b)(1). Xia's remaining arguments are unavailing. 11
A. Standard of Review 12 A district court properly dismisses an action for lack of subject 13 matter jurisdiction pursuant to Rule 12(b)(1) if the court "lacks the 14 statutory or constitutional power to adjudicate it." Cortlandt St. 15 Recovery Corp. v. Hellas Telecomms., S.Á.R.L, 790 F.3d 411, 416-17 16 (2d Cir. 2015) (internal quotation marks omitted). The plaintiff bears 17 the burden of establishing by a preponderance of the evidence that 18 subject matter jurisdiction exists. See Nouritajer v. Jaddou, 18 F.4th 85, 19 88 (2d Cir. 2021). On appeal from a dismissal under Rule 12(b)(1), we 20 review the district court's legal conclusions de novo and its factual 21 findings for clear error. Id. 22
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B. Statutory and Regulatory Framework 1 Section 1255(a) provides that "[t]he status of an alien who was 2 inspected and admitted or paroled into the United States," otherwise 3 known as an arriving alien, "may be adjusted by the Attorney 4 General, in his discretion and under such regulations as he may 5 prescribe, to that of an alien lawfully admitted for permanent 6 residence," so long as the alien meets the statutory requirements for 7 such adjustment. Congress later extended jurisdiction over 8 applications for adjustment of status to USCIS, a component agency 9 of the Department of Homeland Security, in addition to the 10 Department of Justice. See 6 U.S.C. §§ 271(b)(5), 557; Perez v. U.S. 11 Bureau of Citizenship & Immigr. Servs. (USCIS), 774 F.3d 960, 965 n.3 12 (11th Cir. 2014). When, as in this case, an arriving alien files an 13 adjustment application outside the context of removal proceedings, 14 USCIS has exclusive jurisdiction over the application.3See 8 C.F.R. 15 §§ 245.2(a)(1), 1245.2(a)(1); see also Brito v. Mukasey, 521 F.3d 160, 166 16 (2d Cir. 2008) (recognizing that the regulations "provide USCIS with 17 jurisdiction to adjudicate adjustment of status applications for all 18 arriving aliens," subject to a narrow exception not applicable here). 19
"In general, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), federal 20 courts lack jurisdiction to review judgments pertaining to certain 21 forms of immigration relief," Penaranda Arevalo v. Bondi, 130 F.4th 325, 22 337 (2025), including applications for adjustment of status under 23
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8 U.S.C. § 1255. By its terms, § 1252(a)(2)(B)(i) bars review of "any 1 judgment" pertaining to such relief: 2
Notwithstanding any other provision of law (statutory or 3 nonstatutory), . . . except as provided in subparagraph 4 (D), and regardless of whether the judgment, decision, or 5 action is made in removal proceedings, no court shall 6 have jurisdiction to review—(i) any judgment regarding 7 the granting of relief under section 1182(h), 1182(i), 8 1229b, 1229c, or 1255 of this title . . . . 9
Section 1252(a)(2)(D) preserves judicial review in a narrow set of 10 circumstances: "Nothing in subparagraph (B) . . . shall be construed 11 as precluding review of constitutional claims or questions of law 12 raised upon a petition for review [from a final order of removal] filed 13 with an appropriate court of appeals." 14
C. Whether § 1252(a)(2)(B)(i) Applies to USCIS's Denial of 15
Xia's Application for Adjustment of Status 16 The principal question presented for our review is whether a 17 decision by USCIS to deny an application for adjustment of status 18 under § 1255 constitutes a "judgment" to which the jurisdictional bar 19 in § 1252(a)(2)(B)(i) attaches.4The answer is yes. In reaching this 20
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conclusion, we join every other circuit that has addressed this 1 question.52
1. The Plain Text of the Statute 3 To ascertain the scope of § 1252(a)(2)(B)(i), "we start where we 4 always do: with the text of the statute." Van Buren v. United States, 5
593 U.S. 374, 381 (2021). The plain text of this provision compels our 6 conclusion that it encompasses decisions by USCIS to deny or grant 7 relief under § 1255. The preamble to this subsection provides that the 8 jurisdictional bar applies "regardless of whether the judgment, 9 decision, or action is made in removal proceedings." 8 U.S.C. 10 We declined to address that question then. Today, we answer the narrower question set forth here.
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See Momin v. Jaddou, 113 F.4th 552, 558 (5th Cir. 2024) (holding that § 1252(a)(2)(B)(i) applied to USCIS's denial of an adjustment application); Viana Guedes v. Mayorkas, 123 F.4th 68, 71 (1st Cir. 2024) ("The district court plainly lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to hear appellants' claims challenging USCIS' denial of their adjustment of status applications."); Nakka v. U.S. Citizenship & Immigr. Servs., 111 F.4th 995, 1008 (9th Cir. 2024) ("[B]ecause of the 'regardless' clause, § 1252(a)(2)(B)(i) must be interpreted as also encompassing judgments regarding the granting of discretionary relief that are made by USCIS and DHS outside removal proceedings."); Hatchet v. Andrade, 106 F.4th 574, 582 (6th Cir. 2024) (holding that pursuant to § 1252(a)(2)(B)(i), "the district court lacked jurisdiction to review the factual findings of USCIS"); Abuzeid v. Mayorkas, 62 F.4th
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§ 1252(a)(2)(B). As the Supreme Court noted in Patel, "USCIS 1 [is assigned] authority over applications for adjustment of status 2 made outside of removal proceedings." 596 U.S. at 333 (citing 8 C.F.R. 3 § 245.2(a)(1)). In other words, USCIS is the only entity that can issue 4 an authoritative decision on adjustment applications outside the 5 removal context, and it is therefore the only entity whose decisions on 6 those applications could fall within the scope of the "regardless" 7 clause of § 1252(a)(2)(B)(i). Thus, Congress's clear directive that no 8 federal court may review a denial of an adjustment application under 9 § 1255, even if it occurs outside removal proceedings, necessarily 10 applies to decisions by USCIS. See Lee, 592 F.3d at 619 ("[T]he 11 language 'regardless of whether the judgment, decision, or action is 12 made in removal proceedings' makes clear that the jurisdictional 13 limitations imposed by § 1252(a)(2)(B) also apply to review of agency 14 decisions made outside of the removal context."); Abuzeid, 62 F.4th at 15 584 (same); see also Momin, 113 F.4th at 558 (noting that "every court 16 of appeals to consider the question has held that the jurisdictional bar 17 applies outside the removal context—including to USCIS denials of 18 adjustment of status"). 19
Xia's reading of § 1252(a)(2)(B)(i) is irreconcilable with the 20 statutory text and would nullify part of Congress's directive. As Xia 21 notes, "[i]t is a cardinal principle of statutory construction that a 22 statute ought . . . to be so construed that, if it can be prevented, no 23 clause, sentence, or word shall be superfluous, void, or insignificant." 24 Appellant's Br. 20 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31 25 (2001)). But it is Xia's interpretation of the statute—not the district 26
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court's—that would violate this principle. See Torres v. Lynch, 578 U.S. 1 452, 463 n.8 (2016) (rejecting appellant's reading of a statute because 2 it "conflict[ed] with our ordinary assumption that Congress, when 3 drafting a statute, gives each provision independent meaning"). If 4 only USCIS can decide an adjustment application outside the removal 5 context and its decision does not constitute a "judgment" for 6 purposes of § 1252(a)(2)(B)(i), the "regardless" clause would be 7 meaningless, at least with respect to the enumeration of § 1255 relief. 8 See United States v. Butler, 297 U.S. 1, 65 (1936) ("These words cannot 9 be meaningless, else they would not have been used."). 10
2. Patel v. Garland 11 The Supreme Court's reasoning in Patel confirms our 12 conclusion. In that case, which concerned an adjustment of status 13 application made under § 1255(i) by an alien in removal proceedings, 14 the Court considered whether § 1252(a)(2)(B)(i) forecloses judicial 15 review of "factual findings that underlie a denial of relief," and held 16 that it does. Patel, 596 U.S. at 331, 333-34. 17
The Court explained that § 1252(a)(2)(B)(i) has an expansive 18 reach. The Court agreed with the starting premise that "'judgment' 19 means any authoritative decision." Id. at 337-38. Consistent with this 20
"broad definition," § 1252(a)(2)(B)(i) "does not restrict itself to certain 21 kinds of decisions. Rather, it prohibits review of any judgment 22 regarding the granting of relief under § 1255 and the other enumerated 23 provisions." Id. The modifier "any," the Court elaborated, "means 24 that the provision applies to judgments of whatever kind under 25
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§ 1255, not just discretionary judgments or the last-in-time 1 judgment." Id. at 338 (internal quotation marks omitted). "Similarly, 2 the use of 'regarding' 'in a legal context generally has a broadening 3 effect, ensuring that the scope of a provision covers not only its subject 4 but also matters relating to that subject.'" Id. at 338-39 (emphasis 5 added) (quoting Lamar, Archer & Cofrin, LLP v. Appling, 584 U. S. 709, 6 717 (2018)). In short, the Court agreed that § 1252(a)(2)(B)(i)'s 7 jurisdictional bar "encompasses any and all decisions relating to the 8 granting or denying of discretionary relief," including factual 9 findings. Id. at 337 (internal quotation marks omitted). 10 Patel severely undermines Xia's argument that the term 11
"judgment" for purposes of § 1252(a)(2)(B)(i) includes only the 12 decisions of an immigration court, not the decisions of USCIS. The 13 Court concluded that the term reaches even an immigration judge's 14 credibility determination, a quintessential factual finding. See id. at 15 341 (observing that "[u]sing the word 'judgment' to describe . . . [a] 16 credibility determination is perfectly natural" and emphasizing that 17 the jurisdictional bar applies to "any judgment"). It follows that a 18 decision by USCIS to deny an adjustment application under § 1255 19 fits within this broad definition. Indeed, the Court acknowledged 20 that its interpretation of § 1252(a)(2)(B)(i) could have the 21
"consequence of precluding all review of USCIS denials of 22 discretionary relief" because "[t]hose decisions are made outside of 23 the removal context, and subparagraph (D) preserves review of legal 24 and constitutional questions only when raised in a petition for review 25 of a final order of removal." Id. at 345. 26
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While it declined to decide the reviewability of USCIS 1 decisions, the Court suggested that foreclosing review of those 2 decisions might not be an "unintended" consequence of its opinion, 3 as Patel and the government framed it, but rather "consistent with 4 Congress' choice to reduce procedural protections in the context of 5 discretionary relief." Id. at 345-46. That choice followed INS v. St. 6 Cyr, 533 U.S. 289 (2001), where the Court explained that reading 7 § 1252, as it existed then, to bar review of all legal questions in removal 8 cases could raise constitutional concerns. Id. at 300. Through the 9 post-St. Cyr amendments to § 1252, the Court observed, Congress 10
"preserved review of legal and constitutional questions made within 11 removal proceedings" and simultaneously "extended the 12 jurisdictional bar to judgments made outside of removal 13 proceedings." Patel, 596 U.S. at 345-46. Put differently, "[t]o the 14 extent Congress decided to permit judicial review of a constitutional 15 or legal issue bearing upon the denial of adjustment of status, it 16 intended for the issue to be raised to the court of appeals during 17 removal proceedings." Id. at 346 (quoting Lee, 592 F.3d at 620). Thus, 18 the Court suggested, "it is possible that Congress did, in fact, intend 19 to close th[e] door" to judicial review of USCIS decisions. Id. at 345. 20 The Court went on to emphasize that it would not disregard 21 the text of § 1252(a)(1)(B)(i) to accommodate the parties' concern that 22 giving full effect to the plain meaning of the provision could insulate 23 USCIS decisions from judicial review. Although the parties urged it 24
"to avoid the risk of this result," the Court asserted that "it would be 25 difficult to maintain that this consequence conflicts with the statutory 26
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structure." Id. at 346. To the contrary, this result—whatever its merits 1 as a matter of policy—comports with "the best interpretation of the 2 statutory text." Id. And the statutory text, the Court stressed, dictates 3 the meaning of the provision. See id. (citing Niz-Chavez v. Garland, 4
593 U.S. 155, 171 (2021), which observed that "no amount of 5 policy-talk can overcome a plain statutory command"). 6 Nothing in the Court's reasoning supports Xia's argument that 7 only a decision by an immigration court can constitute a judgment to 8 which the jurisdictional bar attaches. Indeed, if Xia were correct, Patel 9 could have easily dispatched the parties' concern that the Court's 10 interpretation of § 1252(a)(2)(B)(i) would foreclose judicial review of 11 USCIS decisions by simply explaining that the provision does not 12 apply to those decisions at all. Instead, the Court recognized the 13 possibility that its holding could bar judicial review of those 14 decisions, and then dismissed the parties' concern on the ground that 15 this result would be "consistent with Congress' choice to reduce 16 procedural protections in the context of discretionary relief." Id. at 17
346. 18
In sum, the logic of Patel leads ineluctably to the conclusion that 19 § 1252(a)(2)(B)(i) bars review of a USCIS denial of an application for 20 adjustment of status. 21
D. Xia's Remaining Arguments 22 Xia raises two additional arguments in an attempt to 23 circumvent § 1252(a)(2)(b)(i)'s jurisdictional bar. First, she argues that 24 USCIS's denial was not discretionary, and therefore does not fall 25
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within this provision, because it was "based on statutory grounds that 1 have merely been couched in discretionary language." Appellant's 2 Br. 21-22. Even if we agreed that the agency's decision was not an 3 exercise of discretion (though we agree with the district court that it 4 was), this argument would nonetheless be unavailing. The Supreme 5 Court in Patel explained that the jurisdictional bar "applies to 6 judgments of whatever kind under § 1255, not just discretionary 7 judgments or the last-in-time judgment." 596 U.S. at 338 (emphasis 8 added) (internal quotation marks omitted). In fact, the Court rejected 9 the government's argument that the term "judgment" for purposes of 10 § 1252(a)(2)(B)(i) "refers exclusively to a 'discretionary' decision," 11 explaining that "[a] 'judgment' does not necessarily involve 12 discretion, nor does context indicate that only discretionary 13 judgments are covered by" the jurisdictional bar. Id. at 340-43. 14 Therefore, USCIS's denial is unreviewable regardless of whether it 15 rested on discretionary factors, a determination that Xia is statutorily 16 ineligible for adjustment of status, or both. 17
Xia's second argument fares no better. She contends that the 18 district court had subject matter jurisdiction under § 1252(a)(2)(D) 19 because her claims raised several questions of law. Even if we agreed 20 that Xia has raised legitimate questions of law (though we agree with 21 the district court that she has not), this argument, too, would be 22 unavailing. Section 1252(a)(2)(D) permits judicial review of 23 constitutional claims or questions of law only by an "appropriate 24 court of appeals," and only "upon a petition for review" from a final 25 order of removal. Xia brought this case in a district court, and she 26
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was not petitioning for review of a final order of removal. See Hassan 1
v. Chertoff, 543 F.3d 564, 566 (9th Cir. 2008) (holding that 2 § 1252(a)(2)(D) was inapplicable because the plaintiff's "challenge to 3 the denial of adjustment was not raised upon a petition for review 4 filed with th[e] court [of appeals]" but instead "on direct appeal from 5 the district court"). Accordingly, the jurisdictional savings clause in 6 § 1252(a)(2)(D) provides no basis for subject matter jurisdiction in this 7 case. 8
III. Conclusion 9 In summary, we hold: 10
1. A denial of an application for adjustment of status under 11
8 U.S.C. § 1255 is a "judgment" for purposes of § 1252(a)(2)(B)(i) 12 regardless of whether it is issued by an immigration court or USCIS. 13
2. The district court committed no error in (a) concluding that 14 § 1252(a)(2)(B)(i) precludes judicial review of Xia's challenge to 15 USCIS's denial of her application for adjustment of status under 16 § 1255, and therefore (b) dismissing Xia's complaint for lack of subject 17 matter jurisdiction pursuant to Federal Rule of Civil Procedure 18 12(b)(1). 19
For the foregoing reasons, we AFFIRM the district court's 20 judgment. 21