Doe v. Holder, 072811 FED9, 09-16787

Docket Nº:09-16787
Party Name:JANE DOE; JOHN DOE, through their Guardian ad Litem, Fernando Aguirre-Guerra, Plaintiffs - Appellants, v. ERIC H. HOLDER, JR., Attorney General, Defendant-Appellee.
Judge Panel:Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, District Judge.
Case Date:July 28, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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JANE DOE; JOHN DOE, through their Guardian ad Litem, Fernando Aguirre-Guerra, Plaintiffs - Appellants,

v.

ERIC H. HOLDER, JR., Attorney General, Defendant-Appellee.

No. 09-16787

United States Court of Appeals, Ninth Circuit

July 28, 2011

NOT FOR PUBLICATION

Submitted July 19, 2011, San Francisco, California. [**]

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding, D.C. No. 3:08 cv-0457 LRH.

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

MEMORANDUM [*]

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 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...

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