                                                                              FILED
                             NOT FOR PUBLICATION                               JUL 28 2011

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


JANE DOE; JOHN DOE, through their                No. 09-16787
Guardian ad Litem, Fernando Aguirre-
Guerra,                                          D.C. No. 3:08 cv-0457 LRH

                Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

ERIC H. HOLDER, JR., Attorney General,

                Defendant - Appellee.


                     Appeal from the United States District Court
                              for the District of Nevada
                      Larry R. Hicks, District Judge, Presiding

                               Submitted July 19, 2011**
                               San Francisco, California

Before:         TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF,
                District Judge.***



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
          ***
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
      Jane and John Doe, the United States citizen minor children of an alien

subject to removal, brought suit challenging the constitutionality of 8 U.S.C.

§ 1229b(b)(1)(D), which requires an alien to establish “exceptional and extremely

unusual hardship” to a U.S. citizen spouse, parent, or child to qualify for

cancellation of removal. The district court concluded that it had jurisdiction and

then dismissed the action on its merits. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We conclude that the district court lacked jurisdiction, and therefore

remand with directions that the action be dismissed on that basis.

      Plaintiffs’ father was ordered removed from the United States. His

application for cancellation of removal,1 on the ground that his removal would

cause exceptional and extremely unusual hardship on his U.S. citizen minor

children, was denied. Subsequently, Plaintiffs filed suit, alleging that the

“exceptional and extremely unusual hardship” standard of 8 U.S.C.

§ 1229b(b)(1)(D) infringes on their “fundamental right . . . to live with their father

in the United States.” The district court granted the government’s motion to




      1
              The Attorney General, at his discretion, may cancel the removal of a
deportable alien if the alien, among other things, “establishes that removal would
result in exceptional and extremely unusual hardship to the alien’s spouse, parent,
or child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence.” 8 U.S.C. § 1229b(b)(1).

                                           2
dismiss the complaint for failure to state a claim for which relief may be granted,

and entered judgment dismissing the action on that basis.

      We review de novo whether there is subject matter jurisdiction. Atwood v.

Fort Peck Tribal Court Assiniboine & Sioux Tribes, 513 F.3d 943, 946 (9th Cir.

2008). We also review de novo a dismissal for failure to state a claim pursuant to

Rule 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). A dismissal

may be affirmed on any proper ground supported by the record. Johnson v.

Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008).

      The district court erred in exercising jurisdiction over Plaintiffs’ claims. The

REAL ID Act, 8 U.S.C. § 1252(b)(9), vests exclusive jurisdiction over claims

“arising from” final orders of removal in the courts of appeals. See Reno v.

American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-83 (dubbing 8

U.S.C. § 1252(b)(9) a “zipper clause”). Section 1252(b)(9) provides:

      Judicial review of all questions of law and fact, including
      interpretation and application of constitutional and statutory
      provisions, arising from any action taken or proceeding brought to
      remove an alien from the United States under this subchapter shall be
      available only in judicial review of a final order under this section.
      Except as otherwise provided in this section, no court shall have
      jurisdiction . . . to review such an order or such questions of law or
      fact.




                                          3
8 U.S.C. § 1252(b)(9) (emphasis added). “Through this section, ‘Congress made

clear that review of a final removal order is the only mechanism for reviewing any

issue raised in a removal proceeding.’” Singh v. Gonzales, 499 F.3d 969, 976 (9th

Cir. 2007) (quoting H.R. Rep. No. 109-72, at 173).

      Here, by directly challenging the standard applied to their father’s

application for cancellation of removal, Plaintiffs seek review of a question of law

arising from the action to remove their father.2 They acknowledge that their

father’s removal is the sole motive for the suit and seek injunctive relief to prevent

it. Critically, the constitutional issue raised by Plaintiffs could have been asserted

by their father in his immigration proceedings, including in his petition for judicial

review of his final order of removal. E.g., Martinez-Rosas v. Gonzales, 424 F.3d

926, 930 (9th Cir. 2005) (explaining that under the REAL ID Act, the courts of

appeals have jurisdiction to review due process challenges to final orders of




      2
            A “final order of removal” “means the administrative order
concluding that the alien is removable or ordering removal.” Galindo-Romero v.
Holder, 621 F.3d 924, 927 (9th Cir. 2010) (quoting 8 U.S.C. § 1101(a)(47)(A))
(quotation marks and alterations omitted).

                                           4
removal); 8 U.S.C. § 1252(a)(2)(D).3 As such, the constitutionality of the

“exceptional and extremely unusual hardship” standard is a “question of law” that

“aris[es] from” the action to remove Plaintiffs’ father. 8 U.S.C. § 1252(b)(9). The

district court lacked subject matter jurisdiction. For this reason, the judgment of

the district court dismissing Plaintiffs’ action on the merits is vacated and the case

is remanded to the district court with directions that the action be dismissed for

lack of jurisdiction. No costs.

VACATED and REMANDED.




      3
             Children of aliens do not have standing intervene in removal
proceedings. E.g. Agosto v. Boyd, 443 F.2d 917 (9th Cir. 1971) (per curiam).
Nevertheless, alien parents of U.S. citizen children can raise the constitutional
claims of their children in removal proceedings. See, e.g., Urbano de Malaluan v.
INS, 577 F.2d 589, 594-95 (9th Cir. 1978).

                                           5
