                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 11 2015

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



                            FOR THE NINTH CIRCUIT

HICHAM ALDARWICH,                                No. 13-55455

              Plaintiff - Appellant,             D.C. No. 8:12-cv-01463-CJC-
                                                 RNB
  v.

MARK HAZUDA, Director of the                     MEMORANDUM*
Citizenship and Immigration Services,
Nebraska Service Center,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                           Submitted February 9, 2015**
                              Pasadena, California

Before: KOZINSKI, CHRISTEN, and HURWITZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1. Hicham Aldarwich appeals the district court’s dismissal of this action for

want of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and

affirm the dismissal of the complaint.

      2. To the extent that Aldarwich’s complaint sought to compel the United States

Citizenship and Immigration Services (“USCIS”) to adjudicate his application for

adjustment of status and to declare that he was not inadmissible, that claim became

moot when the USCIS denied the application during the district court proceedings.

See Mamigonian v. Biggs, 710 F.3d 936, 942 (9th Cir. 2013). Both the district court

and this court lack jurisdiction to review the discretionary denial of the adjustment of

status application. See 8 U.S.C. §§ 1159(b), 1252(a)(2)(B)(ii); Kucana v. Holder, 558

U.S. 233, 248-49 (2010); Mamigonian, 710 F.3d at 943.

      3. Aldarwich argues that a live controversy exists because he also sought

review of the USCIS’s underlying non-discretionary determination that he was

inadmissible pursuant to 8 U.S.C. § 1182(a)(3)(B). Mamigonian clarified that 8

U.S.C. § 1252(a)(2)(D) does not strip the district courts of jurisdiction to review non-

discretionary inadmissibility findings outside the context of a petition for review. 710

F.3d at 946. But the district court still lacked jurisdiction because the USCIS had not

yet made a determination regarding Aldarwich’s application when the complaint was

filed. See id. at 942. Jurisdiction is contingent upon a “‘final agency action,’” id. at


                                           2
941 (quoting 5 U.S.C. § 704 (2012)), and “‘[s]ubject matter jurisdiction must exist as

of the time the action is commenced,’” id. at 942 (quoting Morongo Band of Mission

Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988)). “‘If

jurisdiction is lacking at the outset,’” as here, “‘the district court has no power to do

anything with the case except dismiss.’” Id. (quoting Orff v. United States, 358 F.3d

1137, 1149 (9th Cir. 2004)).

      4. As in Mamigonian, here the “dismissal was, by default, without prejudice.”

Id. at 946. Given the final agency action, Aldarwich is not barred from now asserting

that the USCIS improperly denied his adjustment-of-status application on

nondiscretionary grounds. Id.

      AFFIRMED.




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