Di Nitto v. Department of Homeland Security

MEMORANDUM *

Appellants Elmerinda Di Nitto, Leone D’Arcangelo, Emanuela D’Arcangelo, and Frencesco D’Arcangelo (“Appellants”) appeal the district court’s decision to grant the Department of Homeland Security’s (“Government”) motion to dismiss for lack of subject matter jurisdiction. Although we find that the district court erred in concluding that it lacked subject matter jurisdiction, we nonetheless affirm the motion to dismiss because Appellants have failed to demonstrate statutory eligibility for adjustment of status.

The INS based its decision to deny Appellants’ application for adjustment of status on their failure to meet the nondiscretionary statutory eligibility require *572 ments. Notice of Decision, Jan. 31, 2003. We have previously held that district courts retain authority to review denials of applications for adjustments of status where such denials are based upon an alien’s failure to meet the statutory eligibility requirements. Hernandez v. Ashcroft, 345 F.3d 824, 845-47 (9th Cir.2003). Subject matter jurisdiction therefore did exist, and the district court erred in granting the Government’s motion to dismiss on the ground that it did not.

We may, however,…