Nakka: Why the Families’ Green Card Age-Out Lawsuit Was Dismissed

Indian nationals working in the United States often wait years, sometimes decades, for a green card. Their children can turn 21 in line and lose their place. A group of families sued over how the government calculates a child’s age for that purpose. The Ninth Circuit held in Nakka v. USCIS, 111 F.4th 995 (9th Cir. 2024), that one jurisdiction-stripping provision, 8 U.S.C. § 1252(a)(2)(B)(i), does not bar district courts from hearing challenges to generally applicable policies that do not rely on the denial of an individual application. It still ordered the case dismissed for lack of jurisdiction, without addressing whether the challenged policies are lawful, because most of the named plaintiffs had not yet applied, one whose application was granted could show no injury, and the one who was denied must seek review through a different route.

The age-out problem

The plaintiffs came on H-1B work visas with children on derivative visas. Visa demand exceeds annual caps, availability also depends on preference category and country of birth, and because large numbers of Indian nationals have applied, the court said, wait times for Indians have lasted years, if not decades. A “child” under the immigration laws is an unmarried person under 21. The Child Status Protection Act partially tolls, or partly stops the clock on, a child’s age: the child’s age on the date a visa becomes available, reduced by the days the petition was pending, if the child seeks permanent residence within one year of availability.

The plaintiffs challenged how U.S. Citizenship and Immigration Services (USCIS) and the State Department determine when a visa becomes available. They claimed the use of the national origin-based Visa Bulletin chart, the State Department’s monthly chart of when visas are expected to become available, violates equal protection and that a 2018 USCIS policy was arbitrary and adopted improperly. USCIS changed the policy after oral argument, and the court did not address whether that mooted, or ended the live dispute over, the claims.

Policy challenges are not barred outright

The government argued that Patel v. Garland, 596 U.S. 328 (2022), and 8 U.S.C. § 1252(a)(2)(B)(i), which bars review of “any judgment regarding the granting of relief” under listed provisions, including 8 U.S.C. § 1255 on adjustment of status, the process of becoming a lawful permanent resident from within the United States, strip courts of power over these claims. The court disagreed. As it read Patel, every judgment considered there was made when deciding an individual application. Drawing on McNary v. Haitian Refugee Center, 498 U.S. 479 (1991), which it described as interpreting a comparable statute, and on the text of this provision, it concluded that the provision strips jurisdiction over individual denials, but not collateral challenges to agency policies, meaning challenges to a general policy that do not refer to or rely on an individual denial. The court pointed to the words “granting of relief,” the section’s heading on “denials,” and Congress’s decision not to use the broader language McNary described.

The government argued that the statute reaches decisions made outside removal proceedings and broadly covers anything related to granting a green card. The court gave those points separate answers. USCIS decides many individual green-card applications before removal proceedings begin. The language about decisions made outside removal proceedings already reaches those individual decisions, the court reasoned, without also covering every general policy. And although the word “regarding” broadens the statute, the surrounding text still sets its boundaries. The court read it as reaching all kinds of judgments made in deciding an application, rather than the kind of general policy challenge these families brought.

Judge Forrest, concurring in part and in the judgment, would not have reached that question, reasoning that the court lacked constitutional authority over the non-filers’ claims and that the one plaintiff with a denial had no truly collateral claim, because the policies were directly applied to her.

The disagreement resurfaced in Garcia v. USCIS, 146 F.4th 743 (9th Cir. 2025). USCIS had denied a U-visa holder’s green-card application because she had not submitted the required medical-examination form, whose legality she challenged. The panel applied Nakka and held that her lawsuit was tied to her own denial, so it belonged in the removal-review process. That remained the route even though immigration judges could not review that kind of adjustment decision and she argued that the Constitution required a court to hear her legal claim. The panel directed that constitutional argument to the removal-review process as well and affirmed the district-court dismissal. In a separate concurrence, Judges Bress and Lee criticized Nakka’s policy-challenge exception and urged the court to overrule it in a future case.

Why the claims still failed

Most of the plaintiffs had not applied for adjustment of status, and their claims were not ripe, meaning not yet ready for a court. Quoting Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), the court said a claim like this ripens “only once” the plaintiff takes “the affirmative steps that he could take before the [agency] blocked his path by applying the [challenged policies] to him.” The court rejected two exceptions the plaintiffs invoked. It found they had not shown they would be denied practical judicial review, or that USCIS would reject their applications informally at filing, noting that it had formally decided one plaintiff’s. Another plaintiff’s application was granted, so she could show no injury.

The evidence mattered to both exceptions. Unlike the interview procedures challenged in McNary, these families were attacking the legality of policies that would determine their eligibility. They identified no purely factual issue or missing document that would prevent meaningful review through the usual route. The court explained that the agency manuals could be submitted in immigration court or brought to a court’s attention through judicial notice. Their claim that USCIS would turn applications away before accepting them also ran into a document they had filed themselves: USCIS’s formal decision denying Peddada’s application. Because they said USCIS would treat them like Peddada, that decision undermined their assertion that the agency would refuse to process their applications at all.

One plaintiff, Pavani Peddada, had applied and been denied. She could show ripeness, but the court held that 8 U.S.C. § 1252(a)(2)(B)(i) and (D) channel review of her legal and constitutional challenges into a petition for review from a final order of removal, a request that a federal court of appeals review a final removal order.

Peddada’s proposed distinction was between a benefit and relief from removal. She had lawful status when she applied, so she argued that she was seeking a green card, not protection from being removed. The statute’s title and its repeated references to removal orders gave that argument some support. The government answered that Congress also uses “relief” for benefits available to people with lawful status. The court found the text genuinely ambiguous even after considering the legislative history. The usual presumption favoring judicial review did not resolve that ambiguity. The statute preserved legal and constitutional challenges on a petition for review after a final removal order. That presumption therefore did not supply a district-court route. Returning to the text and context, the court chose the broader reading because Congress had used “relief” to include benefits for people with lawful status in other provisions. It held that the review limit covers adjustment applications whether or not the applicant was seeking relief from removal.

In our view, the practical result is stark. The court acknowledged that people like her, who have not violated immigration laws, must violate the law to render themselves removable before a court can review the denial. Quoting the Supreme Court’s decision in Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), the court said courts normally do not require plaintiffs to “bet the farm,” but added that Congress can require review in this manner by expressly limiting and channeling judicial review.

The court vacated the dismissal and sent the case back with instructions to dismiss for lack of jurisdiction.

What this means for families in line

• Track the child’s age against the visa date. In our view, families should calculate the adjusted age well before a birthday and revisit it each month.
• Know that the policy can change. USCIS changed its method after argument in this case.
• In our view, weigh filing carefully if you intend to challenge a policy. A formal denial after filing, based on the challenged policies, is what ordinarily makes a claim ripe, but the court held that a challenge based on a denial must go through a petition for review from a final order of removal, and USCIS told the plaintiff denied here that she was not authorized to remain.
• Get advice as soon as a denial arrives. The court held that review runs through a petition from a final order of removal. In our view, that is a serious risk to take on.

To talk about your family’s case, contact us below.