
USCA1 Opinion

	




       [NOT FOR PUBLICATIONNOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 99-1169                     SHARON HUGHES MENDONCA,                      Plaintiff, Appellant,                                v.             IMMIGRATION AND NATURALIZATION SERVICE,                       Defendant, Appellee.           APPEAL FROM THE UNITED STATES DISTRICT COURT                FOR THE DISTRICT OF MASSACHUSETTS            [Hon. Patti B. Saris, U.S. District Judge]                              Before                     Torruella, Chief Judge,               Selya and Boudin, Circuit Judges.                                                                                                                                          Sharon Hughes Mendonca on brief pro se.     David W. Ogden, Acting Assistant Attorney General, Joan E.Smiley, Senior Litigation Counsel, and Anthony W. Norwood, TrialAttorney, Office of Immigration Litigation, on brief for appellee.December 30, 1999                                                                            Per Curiam.  Petitioner Sharon Hughes Mendonca, on  behalf of her husband Crisanto Mendonca (a citizen of Cape  Verde), appeals from the denial of a petition under 28 U.S.C.  § 2241 for habeas corpus relief.  Petitioner there sought to  challenge a discretionary decision of the Board of Immigration  Appeals (BIA) denying her husband's application for adjustment  of status, see 8 U.S.C. § 1255; she also requested an order  compelling his naturalization.  The district court dismissed  for lack of subject-matter jurisdiction.  See Mendonca v. INS,  52 F. Supp. 2d 155 (D. Mass. 1999).              With respect to the naturalization issue, we affirm  substantially for the reasons recited by the district court.   See id. at 163-64.  With respect to the adjustment-of-status  issue, we affirm on the merits.  Respondent is mistaken in  asserting that § 309(c)(4)(E) of IIRIRA, Pub. L. No. 104-208,  Div. C, 110 Stat. 3009-546, divests the district court of  habeas jurisdiction.  See, e.g., Requena-Rodriguez v.  Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999); Goncalves v.  Reno, 144 F.3d 110, 120-21 (1st Cir. 1998) (construing §  309(c)(4)(G)), cert. denied, 119 S. Ct. 1140 (1999).              In turn, whether federal courts in such "transitional  rules" cases possess residual jurisdiction under § 2241 to  review discretionary determinations of the BIA is a question  not subject to ready resolution.  See, e.g., id. at 125 n.17  (noting, without addressing, argument from amici that "habeas  jurisdiction also traditionally allowed review, under a  'manifest abuse of discretion' standard, of the exercise of  discretion to deny relief").  However, the question how far  habeas jurisdiction extends is one of great practical  importance, and there is no reason to address it in this case.   Even assuming that habeas jurisdiction does extend in this  matter to abuses of discretion--and this is very much an  arguendo assumption--there is nothing in this case that  remotely suggests such an abuse by the BIA.  Accordingly,  whatever the scope of habeas corpus, there is no basis for  setting aside the BIA's refusal to adjust status.            Our affirmance on this ground does not offend Steel  Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998).   We think that the question whether § 2241 encompasses such  claims, rather than being jurisdictional in nature, instead  goes to the merits.  "[T]he absence of a valid (as opposed to  arguable) cause of action does not implicate subject-matter  jurisdiction, i.e., the courts' statutory or constitutional  power to adjudicate the case."  Id. at 89 (characterizing as  non-jurisdictional the question whether a citizen-suit  provision of the Emergency Planning and Community Right-to-Know  Act of 1986 permits suits for past violations); see also, e.g.,  Davoll v. Webb, 194 F.3d 1116, ____, 1999 WL 969263, at *5-*6  (10th Cir. 1999); Cablevision of Boston, Inc. v. Public  Improvement Comm'n, 184 F.3d 88, 100 & n.9 (1st Cir. 1999).              Affirmed.
