Ninth Circuit Appeal Tests Whether Green Card Applicants Can Sue USCIS Over Stalled Cases, After Three Circuits Closed That Door

Three appeals courts have barred suits challenging USCIS hold policies on green card applications; a Ninth Circuit appeal tests whether that bar also covers delays with no policy behind them.

The American Immigration Council and the American Immigration Lawyers Association filed a friend-of-the-court brief on Oct. 13 urging the U.S. Court of Appeals for the Ninth Circuit to revive a lawsuit over a stalled green card case. In Pinnamaraju v. Selby, No. 26-4124, a federal court in the Central District of California dismissed the applicants’ suit against the director of USCIS’s California Service Center, ruling that the Immigration and Nationality Act bars judges from reviewing how fast the agency decides Form I-485 adjustment applications. The appeal will decide whether applicants in the nine Western states keep the usual tool for forcing a decision on a stuck case: a suit under the Administrative Procedure Act and the Mandamus Act.

The timing matters because federal courts are already absorbing a record wave of immigration litigation: 41,887 suits in the 12 months through March 2026, most of them detention challenges, according to data compiled by TRAC at Syracuse University. Closing the door on delay claims in the country’s largest circuit would remove one of the few routes left for people whose applications are simply not moving.

Three words in the statute carry the case

The fight is over 8 U.S.C. 1252(a)(2)(B)(ii), which strips courts of jurisdiction to review any “decision or action” that the INA places in the discretion of the Attorney General or the Homeland Security secretary. Adjustment of status under section 1255(a) is discretionary, so the government’s reading is straightforward: if granting a green card is discretionary, so is deciding when and in what order to decide one. The magistrate judge in Pinnamaraju accepted that view, relying on the agency’s authority over “prioritization” and the “pace” of review, according to the brief.

The two groups, an immigrant-rights research and advocacy organization and the national bar association for immigration lawyers, argue that the ordinary meaning of “decision or action” does not include a failure to decide. The APA, by contrast, defines agency action to include a “failure to act” and lets courts compel action “unlawfully withheld or unreasonably delayed.” Congress wrote no such language into the INA bar, the brief argues, so it left review of inaction intact.

Where the appeals courts stand

Court	Case	What it held on review
Fifth Circuit	Cheejati v. Blinken, 106 F.4th 388 (2024)	Bar applies; the pace of adjudication, not only the final decision, is discretionary
Eighth Circuit	Thigulla v. Jaddou, 94 F.4th 770 (2024)	Bar applies to USCIS’s Adjudication Hold Policy, even under the APA
Third Circuit	Geda v. Director, USCIS (Jan. 23, 2025)	Bar applies to the Adjudication Hold Policy
First Circuit	Gupta v. Jaddou, 118 F.4th 475 (2024)	Assumed jurisdiction and ruled for the government on the merits
Ninth Circuit	Babaria v. Blinken, 87 F.4th 963 (2023)	Affirmed denial of relief without resolving jurisdiction

Source: Third Circuit opinion in Geda v. Director, USCIS (decided Jan. 23, 2025), which summarizes the other circuits’ rulings.

Each appeals court that found the bar applied was reviewing a formal USCIS hold policy tied to visa availability, under which the agency does not approve an I-485 until a visa number is available for the applicant’s category. Pinnamaraju may be different. The complaint alleges, as the brief describes it, that the delay has nothing to do with resource limits or a queue and that similarly situated applicants are getting decisions while theirs sit untouched. That gives the Ninth Circuit room to rule narrowly, treating a deliberate sequencing policy as discretionary but a case that is simply ignored as reviewable. Even then, the applicants would have to prove the delay unreasonable under the long-standing multi-factor test that weighs the length of the wait, any statutory timetable and the effect a court order would have on others in line.

The broader trend runs against the applicants. The Supreme Court’s 2022 ruling in Patel v. Garland read the neighboring clause of the same provision to bar review of factual findings in adjustment cases, and in February the Fourth Circuit, in an unpublished decision, held that federal courts cannot review a USCIS denial of adjustment even outside removal proceedings. Even the Central District of California is split, according to the brief, which cites a 2025 decision there dismissing a delay suit and a July 2026 decision allowing one.

An affirmance would leave applicants in the circuit largely dependent on USCIS case inquiries, the CIS Ombudsman and congressional caseworkers. A reversal would split the Ninth Circuit from the Fifth, Eighth and Third, at least in part, and make Supreme Court review of the question much more likely. Neither outcome affects people whose adjustment requests are being decided by an immigration judge in removal proceedings, which follow a separate review path. The next signal will come from the Justice Department’s answering brief, which will show whether the government defends the broad “pace” rationale or a narrower one tied to how USCIS sets its priorities.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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