Jose Huberto Molina Herrera v. MERRICK B. GARLAND, Attorney General;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE HUBERTO MOLINA HERRERA,
Plaintiff-Appellant,
v.
MERRICK B. GARLAND, Attorney
General; et al.,
Defendants-Appellees.
No. 21-17052
D.C. No. 3:21-cv-02369-JSC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Submitted November 18, 2022**
San Francisco, California
Before: LINN,*** RAWLINSON, and HURWITZ, Circuit Judges.
* 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).
*** The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
FILED
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Jose Herrera appeals the district court’s dismissal of his action under the
Administrative Procedure Act (“APA”) challenging the denial by the U.S.
Citizenship and Immigration Services (“USCIS”) of an application for adjustment
of status. The district court dismissed the action for lack of jurisdiction. We affirm.
Herrera asserts that the USCIS “did not meaningfully apply and balance the
overwhelming positive equities in this case and instead focused on the single issue
of the distant juvenile matter.” However, the weight assigned by the USCIS to
various factors in evaluating applications for adjustment of status is unreviewable
under the APA because it is a discretionary decision. 5 U.S.C. § 701(a)(2); 8 U.S.C.
§ 1252(a)(2)(B)(ii). It is also unreviewable under the Immigration and Nationality
Act as a judgment “regarding the granting of relief under . . . 1255.” 8 U.S.C.
§ 1252(a)(2)(B)(i). To the extent that 8 U.S.C. § 1252(a)(2)(D) provides jurisdiction
to review constitutional or legal claims, see Hassan v. Chertoff, 593 F.3d 785, 789
(9th Cir. 2010), it is of no aid to Herrera because he merely claims that the agency
should have weighed the evidence before it differently, see Bazua-Cota v. Gonzales,
466 F.3d 747, 749 (9th Cir. 2006) (holding that the failure “to properly weigh the
equities and hardship” in denying an application for adjustment of status is not a due
process violation) and because this case is not before us on “a petition for review”
but on an appeal from the district court.
AFFIRMED

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